Interference No. 104,313
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
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 beginning on page 25 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 was 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
chose to pursue something outside of the scope of the count and has nothing to show for more
than three weeks at the very beginning of the critical period for reducing to practice the invention
of the count. Moreover, Sauer does not allege and it has not been demonstrated that the so called
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