Interference No. 104,314
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
their joint 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
"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 had developed or
would 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 would have conceived and filed a patent application which possibly was
previously conceived by Sauer but for which Sauer had not been diligent toward reducing it to
practice. That is the circumstance we now have.
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