Interference No. 104,3 11
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
18. According to Sauer, from November 26, 1987, to February 28, 1988, it worked on
two of the four concepts marked for further study at the November 1987 meeting. Sauer admits
that neither one of these concepts which it had worked on during that three month time period is
within the scope of the count in this interference. (Br. at 24)
Discussion
Although argued by Sauer in its brief for final hearing, derivation of the invention of the
count from Sauer by Kanzaki's named inventor was withdrawn as an issue in this case per the
representation of Sauer's counsel during oral argument on May 29, 2002. See Transcript of Final
hearing at 68 and 70. Accordingly, that issue is no longer before us.
Junior party Sauer does not allege that it reduced the invention of the count to practice
prior to Kanzaki's accorded benefit date of February 3, 1988. Rather, it seeks to prevail on the
issue of priority by asserting that it had a prior conception which is coupled with reasonable
diligence from a time prior to conception of the invention by Kanzaki's inventor to Sauer's own
reduction to practice. See 35 U.S.C. § 102(g).
"The reasonable diligence standard balances the interest in rewarding and encouraging
invention with the public's interest in the earliest possible disclosure of innovation." Griffith v.
Kanamaru, 816 F.2d 624, 626, 2 USPQ2d 1361, 1362 (Fed. Cir. 1987). General allegations are
insufficient to demonstrate reasonable diligence. Wiesner v. Weigert, 666 F.2d 582, 588-89, 212
USPQ 721, 727 (CCPA 198 1). Evidence of diligence must be specific as to dates and facts.
Kendall v. Searles, 173 F.2d 986, 993, 81 USPQ 363, 369 (CCPA 1949).
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