Interference No. 104,316
Sauer Inc. v. Kanzaki Kokyukoki Mfg. Co., Ltd.
Furthermore, it is also questionable how Sauer can group all "transmissions" together as
having a "normal" time period for design, construction, and testing. The basis is not articulated.
Indeed, much depends on the particular features embodied in the specific transmission being
reduced to practice. An adequate time for one transmission may not be adequate for another
transmission, and an inadequate time for one transmission may well be adequate for another.
Sauer's witness, Mr. Staffan Kaempe testifies in his declaration in 114: "Based on my
experience as General Manager, I believe that the normal time period that it takes to design,
build, and test a brand name transmission is at least one year." That testimony is not very
meaningful since not all brand name transmissions are necessarily of the same level of
complexity.
According to Kanzaki, even for times subsequent to February 28, 1988, Sauer has not
shown reasonable diligence in reducing the invention of the count to practice. However, we need
not address that issue because even assuming that Sauer was reasonably diligent subsequent to
February 28, 1988, that diligence did not commence prior to Kanzaki's effective filing date of
February 3, 1988. At the very most, any diligence on the part of Sauer commenced on February
29, 1988, and that is not prior to Kanzaki's date of conception as is required by 35 U.S.C.
§ 102(g) for any entitlement by Sauer to priority of invention relative to Kanzaki.
For the foregoing reasons, Sauer has not satisfied its burden of proof in demonstrating
priority of invention over Kanzaki.
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