interference No. 104,311
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
But we need not reach that question here, because even assuming that Sauer has a date of
conception prior to February 3, 1988, and even further assuming that Sauer has an actual
reduction to practice sometime in October of 1988, Sauer has failed to demonstrate reasonable
diligence toward reduction to practice from a time just prior to February 3, 1988, to October,
1988.
In the fourth entry appearing in a chart on page 24 of its brief, Sauer specifically accounts
for its activities in the period from 11/26/87 to 02/28/88. Also within that entry, Sauer admits
that all the identified activities are directed to design concepts outside of the scope of the count.
Sauer further does not allege that such activities outside of the scope of the count were somehow
either required or necessary for constructing and/or testing an embodiment which is within the
scope of the count. This gap, more than three weeks of which are within Sauer's critical period
during which Sauer must have been reasonably diligent in reducing the invention to practice,
renders unpersuasive Sauer's assertion that it had been reasonably diligent in the critical period
for reducing the invention of the count to practice.
Sauer argues that during that initial gap, it was merely relying on agreements made with
Kanzaki with regard to what it would work on subsequent to their technical meeting held from
11/23/87 to 11/25/87. The argument is without merit. That the parties together decided to direct
theirjoint efforts to something outside of the scope of the count does not provide an excuse for
either party to not be diligent in reducing the invention of the count to practice. Either for
technical or business reasons or a combination of the two, and whatever is its motivation, Sauer
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