Interference No. 104,311
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
argument is very much misplaced. The statutory provision of 35 U.S.C. § 102(g) concerns the
reasonable "diligence" of one who is the first to conceive but last to reduce to practice, not how
much faster one reduced the invention to practice, from beginning to end, as compared to an
"industry norm" or as compared to anyone else. The term "diligence" pertains to the steady or
dogged persistence with which a task is pursued, and not simply how quickly it is accomplished.
from commencement to completion. "Diligence" is defined as follows in the Random House
College Dictionary, Revised Edition (1982): "constant and earnest effort to accomplish what is
undertaken." Note that all who are diligent do not necessarily complete the same task in the
same amount of time. Some will complete the task quicker than others, depending on a myriad
of relevant factors including the ingenuity and efficiency of the person and also the resources
available to the person. Adopting Sauer's rationale, one would say that those who complete the
task in less time than average are diligent and those who complete the task in more time than
average are not diligent. Such conclusions are on their face irrational and incorrect.
Under the statute, a diligent inventor is not penalized for not being smart, for not being
efficient, or for not being very good at what he or she does. So long as the inventor who first
conceived of the invention diligently works on reducing the invention to practice, with no
inexcusable gap during the critical period, and provided that the invention is ultimately reduced
to practice, he or she is entitled to prevail on priority over another who earlier reduced the
invention to practice. An inventor may take one year to reduce an invention to practice and be
regarded as diligent; another inventor may take 18 months to reduce the same invention to
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