Interference No. 104,313
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
time, except that the drawing can be rotated to an orientation such that the second leg will appear
vertical. Sauer has not established that its inventor was in possession of that aspect of the count.
More importantly, there are further orientation requirements in the count which are not
met by the annotated drawing shown in Exhibit 2219 even if the noted paragraphs of Mr. Louis'
declaration and Mr. Johnson's declaration are considered and even if the drawing shown on
Exhibit 2219 is rotated 90 degrees counterclockwise. Specifically, according to the count the
second leg of the center section must have a first surface which extends upwardly from the upper
surface of the first leg of the center section, and a second surface serving as the motor mounting
surface parallel but opposite to that first surface. Sauer has identified the vertical surface (after
90 degree rotation) hidden from view and marked by reference number "73a" as the first surface
of the second leg 75, so that there is a motor mounting surface 73 parallel and opposite to that
first surface "73a." However, surface "73a" cannot reasonably be regarded as extending
upwardly from the upper surface 72a of the first leg 74. In our view, a surface which extends
upwardly from another surface must intersect that other surface in at least a line segment in order
for the feature of "surface extension" to have meaning. Clearly, surface "73a" intersects surface
"72a7 at only a single point. Hence, there is no "surface" to extend. While there are surfaces on
the second leg 75 which do extend upwardly from the upper surface "72a" of the first leg 74,
they do not include the so called first surface "73a." Kanzaki raises essentially the same issue,
though characterized differently, in its opposition brief on page 24 as is reproduced below:
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