Interference No. 104,313
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
"agreement" between Sauer and Kanzaki precluded either party from separately engaging in the
development of other design concepts independent of the other party. Sauer has not shown that
during the initial period encompassing the three week gap it had any intention to reduce to
practice an invention according to the count, let alone that during that time period it had
diligently engaged in specific or meaningful activities toward reducing the invention of the count
to practice.
At least on the record presented in this interference, if Sauer assumed that Kanzaki would
not develop other concepts on its own, or that an eventual binding joint venture between them
would necessarily occur which would incorporate any and all work Kanzaki has developed or
will develop on the subject of integrated hydrostatic transaxles, that would appear to be very
optimistic wishful thinking and Sauer would be making the assumption at its own risk. The risk
is that Kanzaki will have conceived and filed a patent application which possibly was previously
conceived by Sauer but for which Sauer has not been diligent toward reducing it to practice.
That is the circumstance we now have.
Sauer further argues that because the normal time it takes to design, build, and test a new
transmission is at least one year and because Sauer completed this task in only eleven months, it
should be regarded as sufficiently reasonably diligent in reducing the invention to practice. The
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
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