Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 1 of 10
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`EDWARD G. POPLAWSKI (SBN 113590)
`epoplawski@wsgr.com
`OLIVIA M. KIM (SBN 228382)
`okim@wsgr.com
`TALIN GORDNIA (SBN 274213)
`tgordnia@wsgr.com
`STEPHANIE C. CHENG (SBN 319856)
`stephanie.cheng@wsgr.com
`WILSON SONSINI GOODRICH &
`ROSATI
`Professional Corporation
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: (323) 210-2901
`Facsimile: (866) 974-7329
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`Attorneys for Defendant
`QUALYS INC.
`
`RYAN R. SMITH (SBN 229323)
`rsmith@wsgr.com
`CHRISTOPHER D. MAYS (SBN 266510)
`cmays@wsgr.com
`WILSON SONSINI GOODRICH &
`ROSATI
`Professional Corporation
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`Facsimile: (650) 493-6811
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`OAKLAND DIVISION
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`FINJAN LLC,
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`Plaintiff,
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`v.
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`QUALYS INC.,
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`Defendant.
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`CASE NO.: 4:18-cv-07229-YGR
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`DECLARATION OF DR. SYLVIA D.
`HALL-ELLIS IN SUPPORT OF
`QUALYS’S OPPOSITION TO
`FINJAN’S MOTION FOR SUMMARY
`JUDGMENT
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`CASE NO. 4:18-cv-07229-YGR
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`DECLARATION OF DR. SYLVIA D. HALL-ELLIS
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 2 of 10
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`I, Dr. Sylvia D. Hall-Ellis, declare as follows:
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`I have been retained as an expert by Wilson, Sonsini, Goodrich, & Rosati (“WSGR”),
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`on behalf of Defendant Qualys Inc. (“Qualys”). I make this declaration in support of Qualys’s
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`Opposition to Plaintiff Finjan LLC’s (“Finjan”) Motion for Summary Judgment (D.I. 192). I have
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`personal knowledge of the facts set forth in this declaration and, if called as a witness, could and
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`would competently testify thereto.
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`2.
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`I am currently an Adjunct Professor in the School of Information at San José State
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`University. I obtained a Master of Library Science from the University of North Texas in 1972 and
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`a Ph.D. in Library Science from the University of Pittsburgh in 1985. Over the last fifty years, I
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`have held various positions in the field of library and information resources. I was first employed as
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`a librarian in 1966 and have been involved in the field of library sciences since, holding numerous
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`positions.
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`I am a member of the American Library Association (“ALA”) and its Association
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`for Library Collections & Technical Services (“ALCTS”) Division, and I served on the Committee
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`on Cataloging: Resource and Description (which wrote the new cataloging rules) and as the chair of
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`the Committee for Education and Training of Catalogers and the Competencies and Education for a
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`Career in Cataloging Interest Group. I also served as the founding Chair of the ALCTS Division’s
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`Task Force on Competencies and Education for a Career in Cataloging. Additionally, I served as
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`the National Chair for the ALA Office of Diversity’s Committee on Diversity, a member of the
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`REFORMA National Board of Directors, and a member of the Editorial Board for the ALCTS
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`premier cataloging journal, Library Resources and Technical Services. Currently I serve as a Co-
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`Chair for the Library Research Round Table of the American Library Association.
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`I have also given over one-hundred presentations in the field, including several on
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`library cataloging systems and Machine-Readable Cataloging (“MARC”) standards. My current
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`research interests include library cataloging systems, metadata, and organization of electronic
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`resources.
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`CASE NO. 3:18-cv-07229-YGR
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`DECLARATION OF DR. SYLVIA HALL-ELLIS
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 3 of 10
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`I have reviewed Finjan’s motion for summary judgment and disagree with their
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`assertions regarding the authenticity of the scanned copy of Dr. Solomon’s Antivirus Toolkit for
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`Windows and DOS by Alan Solomon (“DSAVT”) I analyzed in this case.
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`I previously provided an expert report regarding DSAVT in another case, Finjan,
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`Inc. v. Juniper Networks, Inc., U.S. District Court, Northern District of California, 3:17-cv-05659-
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`WHA (“Juniper Case”). A true and correct copy of the expert report I provided in that case is
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`attached to the Declaration of Christopher Mays (“Mays Decl.”) as Exhibit 37. The opinions I
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`rendered about DSAVT in the Juniper Case are materially the same as the opinions I rendered about
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`DSAVT in this matter.
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`In preparing my expert report in the Juniper Case, I obtained from Juniper’s counsel
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`a physical copy of DSAVT as well as a scanned copy. At that time, I compared the physical copy
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`of DSAVT with the scanned version and determined that the two copies were substantially the same.
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`I also prepared an expert report regarding DSAVT (and other references) in this case.
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`A true and correct copy of the expert report I provided in this case is attached to the Mays Decl. as
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`Exhibit 34. In preparing my expert report for this matter, I received a scanned copy of DSAVT
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`from Qualys’s counsel. I reviewed the scanned copy of DSAVT that I received from Qualys’s
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`counsel and compared it to the scanned copy of DSAVT that I received from Juniper’s counsel in
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`the Juniper Case. To the best of my knowledge, the two versions appear identical.
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`To the best of my knowledge, both expert reports are true and correct to my
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`knowledge. I stand behind my analysis in both expert reports under the penalty of perjury.
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`Additionally, I have been informed that the scanned copy of DSAVT I received in
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`this case was provided to Qualys’s Counsel by Juniper’s Counsel.
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`As I explained in my expert reports in both the Juniper Case and this matter, it is my
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`opinion that DSAVT was published and accessible to the public no later than April 3, 1996. See
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`Exhibit 37 at ¶¶ 58-61; Exhibit 34 at ¶¶ 56-61. I base my opinion on the DSAVT reference itself,
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`the MARC record attached to my expert report as Attachment 2a, and my experience as a librarian.
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`As explained in my expert report in this matter, ¶ 56 states:
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`Document 2 is a manual, Dr. Solomon’s Antivirus Toolkit for Windows and
`DOS, by Alan Solomon (hereafter, “Solomon”) and issued by S&S Software
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 4 of 10
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`International in 1995. Exhibit 1002 is a true and correct copy of the title page,
`title page verso, table of contents, and contents. I obtained this book via counsel
`and Exhibit 1002 is a copy of the document submitted in this matter
`(QUALYS00002805 through QUALYS00003045). Specifically, the text is
`complete; no pages are missing, and the text on each page appears to flow
`seamlessly from one page to the next; further, there are no visible alterations to
`the document. Exhibit 1002 is a true and correct copy in a condition that creates
`no suspicion about its authenticity.
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`The DSAVT reference itself indicates that it was issued by S&S Software International in 1995.
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`For example, DSAVT lists a copyright date of 1995:
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` D.I. 192-3 at QUALYS00002807. DSAVT also indicates that it is “Edition 3.0” with a stated date
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`of “November 1995”:
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`Id. In my personal experience, statements such as these from within a reference itself are generally
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`reliable indications of approximately when a reference was published, and in this case these
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`statements concur with my ultimate opinion that DSAVT was published and publicly accessible no
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`later than April 3, 1996.
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`13. My opinion that DSAVT was published and publicly accessible no later than April
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`3, 1996 is further supported by the MARC record that I located for this reference. MARC is an
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 5 of 10
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`acronym for Machine-Readable Cataloging. As I noted in my expert report at ¶ 34, since the early
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`1970s and continuing to the present day, MARC has been the primary communications protocol for
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`the transfer and storage of bibliographic metadata in libraries. Almost every major library in the
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`world is MARC-compatible. MARC records indicate publication dates for references as I detailed
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`in ¶ 36 of my expert report. Moreover, the MARC record creation date reflects the date on which,
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`or shortly after which, the item was first acquired or cataloged. See ¶42 of my expert report.
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`The MARC record for DSAVT indicates that it was first published by S & S
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`International PLC in 1995 in Aylesbury, England. D.I. at 192-4. The MARC record “CTRY” field
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`lists “enk,” which is the MARC abbreviation for England. Line 260 of the MARC record lists
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`Aylesbury, Bucks., a reference to the town of Aylesbury (which is in Buckinghamshire, England).
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`Line 260 also lists S & S International PLC as the publisher and a publication date of 1995. See
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`Attachment 2a to my expert report.
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`The MARC record for DSAVT is consistent with the information in DSAVT itself.
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`For example, line 245 of the MARC record lists the title of the document as “Dr. Solomon’s anti-
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`virus toolkit for Windows and DOS [manual].” See Attachment 2a to my expert report. This is
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`consistent with the title on DSAVT itself (see D.I. at 192-4 at QUALYS00002805) as well as the
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`statement in DSAVT that it is a manual that “describes Version 7.5 of Dr Solomon’s Anti-Virus
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`Toolkit for Windows and Dr Solomon’s Anti-Virus Toolkit for DOS.” See D.I. at 192-4 at
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`QUALYS00002807. Likewise, the back cover of DSAVT lists S & S International PLC as the
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`publisher for DSAVT in the United Kingdom with a location of Aylesbury, Buckinghamshire in
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`England, the same as the MARC record. See D. I. at 192-4 at QUALYS00003045.
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`During my deposition, Finjan’s counsel asked me questions about two entries in the
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`DSAVT MARC record. First, that line 300 of the MARC record lists twenty pages (noted by the
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`roman numerals “xx”) plus 222 pages (for a total of 242 pages), while the DSAVT reference itself
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`is 241 pages (including covers, tables, and indices). However, in my opinion such minor
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`discrepancies between a published document and its MARC record are common and do not alter my
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`opinion that the MARC record refers to DSAVT. As I stated while testifying at my deposition, the
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`MARC record appears to have been created based on the United Kingdom printing of DSAVT. It
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 6 of 10
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`is not unusual in my experience for page numbers to slightly deviate between different printings of
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`a book, particularly when dealing with United States-based reprintings of English versions of books.
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`For example, the MARC record indicates a printing size of “23 cm,” and a printing size in the United
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`States that differs from 23 cm would impact the number of pages without changing the content of
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`the printing in any material way. In such a circumstance, it would not be unusual for United States
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`librarians to rely on the U.K. MARC record even for the United States printing of a publication. As
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`I discuss in my expert report at ¶ 43, “Once one library has cataloged and indexed a publication by
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`creating a MARC record for that publication, other libraries that receive the publication do not create
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`additional MARC records—the other libraries instead rely on the original MARC record.” This
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`practice “allows librarians around the world to know that a particular MARC record is
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`authoritative.” Id. Thus, the fact that the copy of DSAVT that I reviewed is 241 pages while the
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`MARC record indicates 242 does not alter my opinion that the MARC record refers to DSAVT,
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`particularly given the consistency of the remaining information in the MARC record that I discussed
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`above. At most, it indicates to me that the original MARC record for DSAVT was created for a
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`U.K. printing of the book while the copy I reviewed was for a U.S. printing of the same book.
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`During my deposition, Finjan’s counsel also asked me about line 500 of DSAVT’s
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`MARC record which states “On cover: “Complete virus Protection: Prevention, Detection and
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`Repair.” The copy of DSAVT that I reviewed may not list this phrase on the cover, although it is
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`difficult to tell given that the copy I reviewed is in black and white only and does not clearly depict
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`every aspect of the cover. Even if the phrase is not on the cover of DSAVT, however, my opinion
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`that the MARC record refers to the same DSAVT book that I reviewed remains the same. As I
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`testified at my deposition, it would not be unusual for cover elements to change between printings
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`of the same book in different countries. Thus, while the U.K. version of DSAVT (on which the
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`MARC record appears to have been created) may have included the phrase listed in field 500 on its
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`cover, the U.S. version may not have included that phrase on the cover. In such a case, it is not
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`unusual for librarians to rely on the original MARC record notwithstanding such minor differences,
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`because the book itself remains the same even if certain cover aspects change. Critically, this means
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`that the date of publication also remains the same. As I testified, this potential discrepancy between
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 7 of 10
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`the MARC record and DSAVT itself is minor, not unusual, and supports my opinion that the MARC
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`record simply refers to the U.K. printing of DSAVT while the copy I reviewed in this case was the
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`United States printing of the same book.
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`18.
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`During my deposition, I was asked whether I had seen the physical book that is
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`identified in the MARC record I discuss above. I testified that I had not seen a copy of that book
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`and could not obtain one. To clarify, I was referring to the work in preparing my expert report for
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`this case, and not the work I performed in preparing my expert report in the Juniper Case. As I
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`noted above, while preparing my expert report in the Juniper Case I was provided a physical copy
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`of DSAVT, which I compared to the digital version I opined on in that case and confirmed that they
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`were the same document.
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`19.
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`I also understand that Finjan is challenging the authenticity of the Mounji and
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`Thomson references analyzed in this case. As to the authenticity of Mounji, as discussed in my
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`expert report in ¶ 103:
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`I downloaded the Mounji technical paper from the CiteSeerx website. Exhibit
`1008 is a true and correct copy of the technical paper (pages 1-37).
`Specifically, the text of the article is complete; no pages are missing, and the
`text on each page appears to flow seamlessly from one page to the next;
`further, there are no visible alterations to the document. Exhibit 1008 was
`found within the custody of a well-known and recognized digital repository
`– a place where, if authentic, a copy of this technical paper would likely be.
`Exhibit 1008 is a true and correct copy in a condition that created no suspicion
`about its authenticity.
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`As to the authenticity of Thomson, as discussed in my expert report in ¶ 116:
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`I downloaded the Thomson technical paper from the Semantic Scholar
`website. Exhibit 1010 is a true and correct copy of the technical paper (pages
`133-146). Specifically, the text of the article is complete; no pages are
`missing, and the text on each page appears to flow seamlessly from one page
`to the next; further, there are no visible alterations to the document. Exhibit
`1010 was found within the custody of a well-known and recognized digital
`repository – a place where, if authentic, a copy of this technical paper would
`likely be. Exhibit 1010 is a true and correct copy in a condition that created
`no suspicion about its authenticity.
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`Given the completeness of the Mounji and Thomson references I retrieved from CiteSeerx and
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`Semantic Scholar, respectively, I have no reason to believe that these references are not authentic.
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 8 of 10
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`Both CiteSeerx and Semantic Scholar are authoritative repositories, where an authentic copy of the
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`reference would be.
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`20.
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`Also, I understand from reviewing Finjan’s motion for summary judgment that
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`Finjan takes issue with my reliance on three document repositories discussed in my report; namely,
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`CiteSeerx, ResearchGate, and Semantic Scholar. As I stated in my expert report in ¶19, “In preparing
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`this report, I used authoritative databases, such as the OCLC WorldCat, the Library of Congress
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`Online Catalog, the Internet Archive (Wayback Machine), CiteSeerx, IEEE Xplore, ResearchGate
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`Semantic Scholar, Google Scholar, and Scopus, to confirm citation details of the various
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`publications discussed.” These repositories are widely used by librarians to locate publications as
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`well as information about them. Among librarians, these repositories are considered “industry
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`standard,” reliable, and authoritative.
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`21. As I stated in my expert report at ¶ 20, CiteSeerx is:
`An evolving and scientific digital and search engine focused primarily on the
`literature in computer and information science. CiteSeerx aims to improve the
`dissemination of scientific literature and to provide improvements in the
`functionality, usability, availability, cost, comprehensiveness, efficiency, and
`timeliness in the access of scientific and scholarly knowledge . . . CiteSeerx has
`developed new methods and algorithms to index PostScript and PDF research articles
`on the World Wide Web.
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`In fact, CiteSeerx was created because use of its predecessor, CiteSeer (created in 1997), “grew to
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`index over 750,000 documents and served over 1.5 million requests daily, pushing the limits of the
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`system’s capabilities,” thus demonstrating how respectable and widely CiteSeer, and consequently,
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`CiteSeerx, was and is used by professionals in library sciences. Id.; D.I. 192-6. While these three
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`repositories were not created for the sole purpose of indexing references and providing dispositive
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`dates for when the reference was published, library science professionals do regularly make use of
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`the information in the repositories to determine when a reference was published.
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`22.
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` As another example, ResearchGate is an authoritative repository that is the largest
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`academic social network in terms of active users that scientists and researchers use to share papers,
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`ask and answer questions, and find collaborators. A European social networking site for scientists
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`and researchers, ResearchGate requires that individuals who wish to join and participate in activities
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`have an email address at a recognized institution or to be manually confirmed as a published
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`Case 4:18-cv-07229-YGR Document 195-3 Filed 05/10/21 Page 9 of 10
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`researcher in order to sign up for an account. Scientists and researchers use the ResearchGate site to
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`share papers, ask and answer questions, and find collaborators. Participants in ResearchGate may
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`post information about their work, abstracts, and full-text documents. A researcher or scholar who
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`created a document independently or in partnership with colleagues knows when the work was
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`prepared and when it was published, and in the case of conference papers, where and at what time
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`a public presentation took place. As discussed in my deposition testimony, ResearchGate is a
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`repository for researchers to give evidence of what we have done and what we are working on to
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`our colleagues.
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`During my deposition, I was asked how I could determine when an article from
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`ResearchGate was publicly accessible. I testified that ResearchGate is not necessarily a source of
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`public availability that is reliable as other means. Although ResearchGate is not the most reliable
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`method for determining when a document is publicly accessible, it is a resource that can be used to
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`determine when a reference was available to the public since the author or the individual uploading
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`it to ResearchGate has to input such information. Determining the exact citation for a document
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`may require checking a digital repository, the curriculum vitae of one or more authors, or similar
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`documentation to determine the exact title, a publication citation, or conference presentation
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`information. In selected cases, information posted in a scholarly repository by the author can be
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`18
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`reliable and easy to find. Researchers and scholars know what they write, when they do so, and
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`19
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`where their work is presented and published. In the case of the Thomson document, ResearchGate
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`20
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`was confirmation from the author about the document and its date of public accessibility. As
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`21
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`discussed in ¶ 117 of my report, I based my opinion that Thomson was publicly available no later
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`22
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`than May 31, 1997, on the ResearchGate opening page, which indicated that Thomson was
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`23
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`published in May 1997.
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`24
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`24.
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`During my deposition, I was asked how I determined when an article from CiteSeer
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`25
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`was publicly accessible, and I testified that you cannot necessarily tell from CiteSeer alone. This is
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`26
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`consistent with my testimony that dates listed in digital repositories alone are something one should
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`27
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`accept at face value without the appropriate authentication and checking. I also testified that
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`28
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`CiteSeer’s information about publication dates is dependent on whether the author or authors decide
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`8
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`

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`2
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`3
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`4
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`5
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`look at the face of the reference for a publication date. As I stated in my report at 1] 104, “The cover
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`of the Mounji technical report has a date of May 27, 1994. The CiteSeer‘r indicates a ‘1994’ date.
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`For these reasons, it is my opinion that Exhibit 1008 was published and accessible to the public no
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`later than May 27, 1994, or shortly thereafter.” My report makes clear that my opinion that Mounji
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`6 was publicly available by May 27, 1994 is based on the fact that face of the Mounji reference listed
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`7
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`8
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`9
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`10
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`1]
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`12
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`13
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`14
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`a May 27, 1994 date and the CiteSeer“ landing page for Mounji listed a 1994 date. This indicates
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`that I did not rely on CiteSeer" alone to determine the date of public accessibility for Mounji. The
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`fact that CiteSeert indicates a publication date that is consistent with the date of publication on the
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`face of the Mounji reference supports my opinion that Monnji was published and accessible to the
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`public no later than May 27, 1994.
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`25.
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`It does not matter that the repositories were not in existence when some of the
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`references at
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`issue were published because if a reference is in the repository,
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`the industry
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`understanding is that these repositories only house authentic copies of a reference. For example,
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` to include that information when publishing their article on CiteSeer, otherwise, one would have to
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`15 ResearchGate allows authors who meet the criteria for participation to post abstracts full texts of
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`16
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`their writings, or a mechanism for readers to send a request for a copy of the full text.
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`I declare under the penalty of perjury under the laws of the United States of America that each of
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`the above statements is true and correct. Executed on May 10, 2021, in Denver, CO.
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