Interference No. 104,315
Sauer Inc. v. Kanzaki Kokyukoki Mfg, Co., Ltd.
Johnson significantly undermines the unexplained references to structure 48 in Exhibit 2225 as a
generally L-shaped member. Accordingly, Sauer has failed to satisfy its burden of proof
We reject Kanzaki's contention that based on Sauer's prosecution history, i.e., Sauer's
representation that the center section, being L-shaped and having horizontal and vertical legs,
allows one rotating unit to be on the upper surface of the horizontal leg, and the second rotating
unit to be on the outside surface of the vertical leg, "generally L-shaped" means that the pump
and motor must extend away from each other rather than facing each other. Based on Sauer's
representation, an L-shaped configuration allows, not requires, one of the pump and motor to be
on top of a horizontal surface and the other to be on the outside of the vertical surface. The
distinction urged by Sauer, essentially that the pump and motor are separated by a leg on the "L,"
actually derives support from other claim features which are also present in the count, i.e., that
the second mounting surface is on the second surface of the second leg opposite the first surface
of the second leg which extends at right angles away from the first surface of the first leg on
which is located the first mounting surface. In that regard, we have already explained above how
the upper right hand figure in Exhibit 2225, as annotated by Sauer, does not satisfy these
requirements.
For the foregoing reasons, Sauer has failed to establish complete conception of the
invention of the count prior to or on November 23, 1987, and thus Sauer has also failed to
demonstrate that Kanzaki derived the invention of the count from Sauer through a
communication that occurred in a meeting held on November 23-25, 1987.
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