Interference No. 104,313
Sauer Inc. v, Kanzaki Kokyukoki Mfg. Co., Ltd.
section as is also required by the count, contrary to Sauer's assertion. But we need not reach the
issue of whether the structure shown in the drawing of Exhibit 2045 is generally L-shaped,
because Sauer's brief is deficient with respect to the three elements of the count as noted above.
With regard to its alleges omissions, Sauer's reply brief at 5 states:
Sauer concedes that it inadvertently failed to cite to two paragraphs in each of Mr.
Louis's and Mr. Johnson's declarations (respectively, Exhibit 2416 11 (52) and
(53) and exhibit 2417 11 (50) and (5 1)) regarding conception of the count.
However, it is apparent that Kanzaki is aware of that testimony and has addressed
the same in its opposition brief Sauer believes that it would be unjust for the
Board not to consider that testimony in view of the fact that Kanzaki has not been
prejudiced and the numerous times the board has afforded Kanzaki multiple bites
at the apple in order to avoid an "unjust" resolution to this interference.
If Sauer is referring to the several times we have allowed Kanzaki to re-file its motion to
correct inventorship after dismissing it for inadequacies, Sauer is comparing apples with oranges.
There is no set date for filing a motion to correct inventorship, and such corrections are generally
encouraged. As long as there is no prejudice to the other party, a party may usually re-file its
motion to correct inventorship unless otherwise precluded to do so by the administrative patent
judge for appropriate reasons. On the other hand, no such corresponding principle exists for
favoring the junior party by allowing it multiple tries at proving its case after ascertaining the
deficiencies of its previous attempts. Also, Kanzaki's renewed motions to correct inventorship
were considered in parallel to the priority phase of this proceeding, whereas this case is now
ready for entry of judgment. Even Kanzaki would not now receive another opportunity to renew
its still failed attempt to make a change in the named inventorship. Moreover, assuming that we
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