Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 1 of 36 PageID #: 43054
`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 1 of 36 PagelD #: 43054
`
`REDACTED
`REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 2 of 36 PageID #: 43055
`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 2 of 36 PagelD #: 43055
`
`EXHIBIT A-13
`EXHIBIT A-13
`
`CONFIDENTIAL-OUTSIDE COUNSEL ONLY
`CONFIDENTIAL-OUTSIDE COUNSEL ONLY
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 3 of 36 PageID #: 43056
`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 3 of 36 PagelD #: 43056
`
`
`REDACTED
`REDACTED
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 4 of 36 PageID #: 43057
`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 4 of 36 PagelD #: 43057
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT B-5
`EXHIBIT B-5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 5 of 36 PageID #: 43058
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`Defendants.
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`EXPERT REPORT OF SCOTT BENNETT, Ph.D. REGARDING
`PRIOR ART INVALIDITY
`OF CERTAIN CLAIMS FROM U.S. PATENT NOS. 6,701,344, 6,714,966,
`6,829,634, 6,910,069, 6,732,147, AND 6,920,497
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 6 of 36 PageID #: 43059
`
`TABLE OF CONTENTS
`
`Page
`INTRODUCTION ............................................................................................................. 2
`
`BACKGROUND AND QUALIFICATIONS ................................................................... 2
`
`PRELIMINARIES ............................................................................................................. 3
`
`OPINIONS REGARDING INDIVIDUAL DOCUMENTS ........................................... 11
`
`EXHIBITS ....................................................................................................................... 35
`
`CONCLUSION ............................................................................................................... 35
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 7 of 36 PageID #: 43060
`
`I.
`
`INTRODUCTION
`
`1.
`
`I am a retired academic librarian working as a Managing Partner of the firm Prior
`
`Art Documentation Services LLC at 711 South Race Street, Urbana, IL, 61801-4132. Attached
`
`as Appendix A is a true and correct copy of my Curriculum Vitae describing my background and
`
`experience.
`
`2.
`
`I have been retained by Winston & Strawn LLP to authenticate and establish the
`
`dates of public accessibility of certain documents. For this service, I am being paid my usual
`
`hourly fee of $91/hour. My compensation in no way depends on the substance of my testimony
`
`or the outcome of this proceeding.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`
`3.
`
`I was previously employed as librarian at several academic institutions as listed in
`
`my CV.
`
`4.
`
`Over the course of my work as a librarian, professor of English, researcher, and
`
`author of nearly fifty scholarly papers and other publications, I have had extensive experience
`
`with catalog records and online library management systems built around Machine-Readable
`
`Cataloging (MARC) standards. I also have substantial experience in authenticating printed
`
`documents and establishing the date when they were accessible to researchers.
`
`5.
`
`In the course of more than fifty years of academic life, I have myself been an
`
`active researcher. I have collaborated with many individual researchers and, as a librarian,
`
`worked in the services of thousands of researchers at four prominent research universities. Over
`
`the years, I have read some of the voluminous professional literature on the information seeking
`
`behaviors of academic researchers. And as an educator, I have a broad knowledge of the ways in
`
`which students in a variety of disciplines learn to master the bibliographic resources used in their
`
`disciplines. In all of these ways, I have a general knowledge of how researchers work.
`
`
`
`-2-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 8 of 36 PageID #: 43061
`
`III.
`
`PRELIMINARIES
`
`6.
`
`I am rendering my expert opinion on the authenticity of the documents referenced
`
`herein and on when and how each of these documents was disseminated or otherwise made
`
`available to the extent that persons interested and ordinarily skilled in the subject matter or art,
`
`exercising reasonable diligence, could have located the documents before 31 July 2001.
`
`7.
`
`I am informed by counsel that an item is considered authentic if there is sufficient
`
`evidence to support a finding that the item is what it is claims to be. I am also informed that
`
`authenticity can be established based on the contents of the documents themselves, such as the
`
`appearance, contents, substance, internal patterns, or other distinctive characteristics of the item,
`
`taken together with all of the circumstances. I am further informed that an item is considered
`
`authentic if it is at least 20 years old, in a condition that creates no suspicion of its authenticity,
`
`and in a place where, if authentic, it would likely be.
`
`8.
`
`I am informed by counsel that a given reference is publicly accessible upon a
`
`satisfactory showing that such document has been disseminated or otherwise made available to
`
`the extent that persons interested and ordinarily skilled in the subject matter or art exercising
`
`reasonable diligence, can locate it. I have also been informed by counsel that materials available
`
`in a library constitute printed publications if they are cataloged and indexed (such as by subject)
`
`according to general library practices that make the references available to members of the
`
`interested public.
`
`9.
`
`Materials considered. In forming the opinions expressed in this report, I have
`
`reviewed the documents and Exhibits referenced herein. These materials are records created in
`
`the ordinary course of business by publishers, libraries, indexing services, and others. From my
`
`years of experience, I am familiar with the process for creating many of these records, and I
`
`know these records are created by people with knowledge of the information in the record.
`
`
`
`-3-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 9 of 36 PageID #: 43062
`
`Further, these records are created with the expectation that researchers and other members of the
`
`public will use them. All materials cited in this report and its Exhibits are of a type that experts
`
`in my field would reasonably rely upon and refer to in forming their opinions.
`
`10.
`
`Persons of ordinary skill in the art. I am told by counsel that the subject matter of
`
`this proceeding relates to computer networking protocols and topologies.
`
`11.
`
`I have been informed by counsel that a “person of ordinary skill in the art at the
`
`time of the inventions” is a hypothetical person who is presumed to be familiar with the relevant
`
`field and its literature at the time of the inventions. This hypothetical person is also a person of
`
`ordinary creativity, capable of understanding the scientific principles applicable to the pertinent
`
`field.
`
`12.
`
`I am told by counsel that persons of ordinary skill in this subject matter or art
`
`would have had (i) a bachelor’s degree in computer science, computer engineering, applied
`
`mathematics, or a related field of study; and (ii) four or more years of industry experience
`
`relating to networking protocols and network topologies.
`
`13.
`
`It is my opinion that such a person would have been engaged in academic
`
`research, learning though study and practice in the field and possibly through formal instruction
`
`the bibliographic resources relevant to his or her research. In the 1980s and 1990s such a person
`
`would have had access to a vast array of long-established print resources in electrical/computer
`
`engineering and computer science as well as to a rich and fast changing set of online resources
`
`providing indexing information, abstracts, and full text services for electrical/computer
`
`engineering and computer science.
`
`-4-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 10 of 36 PageID #: 43063
`
`14.
`
`Library catalog records. Some background on MARC formatted records, OCLC,
`
`WorldCat, and OCLC’s Connexion is needed to understand the library catalog records discussed
`
`in this report.
`
`15.
`
`Libraries world-wide use the MARC format for catalog records; this machine
`
`readable format was developed at the Library of Congress in the 1960s.
`
`16. MARC formatted records provide a variety of subject access points based on the
`
`content of the document being cataloged. All may be found in the MARC Fields 6XX. For
`
`example, MARC Field 600 identifies personal names used as subjects and the MARC Field 650
`
`identifies topical terms. A researcher might discover material relevant to his or her topic by a
`
`search using the terms employed in the MARC Fields 6XX.
`
`17.
`
`The MARC Field 040, subfield a, identifies the library or other entity that created
`
`the original catalog record for a given document and transcribed it into machine readable form.
`
`The MARC Field 008 identifies the date when this first catalog record was entered on the file.
`
`This date persists in all subsequent uses of the first catalog record, although newly-created
`
`records for the same document, separate from the original record, will show a new date. It is not
`
`unusual to find multiple catalog records for the same document.
`
`18. WorldCat is the world’s largest public online catalog, maintained by the Online
`
`Computer Library Center, Inc., or OCLC, and built with the records created by the thousands of
`
`libraries that are members of OCLC. WorldCat provides a user-friendly interface for the public
`
`to use MARC records; it requires no knowledge of MARC tags and codes. WorldCat records
`
`appear in many different catalogs, including the Statewide Illinois Library Catalog. The date a
`
`given catalog record was created (corresponding to the MARC Field 008) appears in some
`
`detailed WorldCat records as the Date of Entry.
`
`
`
`-5-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 11 of 36 PageID #: 43064
`
`19. Whereas WorldCat records are very widely available, the availability of MARC
`
`formatted records varies from library to library.
`
`20. When an OCLC participating institution acquires a document for which it finds no
`
`previously created record in OCLC, or when the institution chooses not to use an existing record,
`
`it creates a record for the document using OCLC’s Connexion, the bibliographic system used by
`
`catalogers to create MARC records. Connexion automatically supplies the date of record
`
`creation in the MARC Field 008.
`
`21.
`
`Once the MARC record is created by a cataloger at an OCLC participating
`
`member institution, it becomes available to other OCLC participating members in Connexion
`
`and also in WorldCat, where persons interested and ordinarily skilled in the subject matter or art,
`
`exercising reasonable diligence, can locate it.
`
`22. When a book has been cataloged, it will normally be made available to readers
`
`soon thereafter—normally within a few days or (at most) within a few weeks of cataloging.
`
`23.
`
`Publications in series. A library typically creates a MARC catalog record for a
`
`series of closely related publications, such as the proceedings of an annual conference, when the
`
`library receives its first issue. When the institution receives subsequent issues/volumes of the
`
`series, the issues/volumes are checked in (sometimes using a date stamp), added to the
`
`institution’s holdings records, and made available very soon thereafter—normally within a few
`
`days of receipt or (at most) within a few weeks of receipt.
`
`24.
`
`The initial series record will often not reflect all of the subsequent changes in
`
`publication details (including minor variations in title, etc.).
`
`25. When a library does not intend systematically to acquire all publications in a
`
`given series, but adds individual volumes of the series to its collections, the library will typically
`
`-6-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 12 of 36 PageID #: 43065
`
`treat each such volume as an individual book, or monograph. In this case, the 008 Field MARC
`
`will record the date when the record for that individual volume, not the series, was created.
`
`26.
`
`It is sometimes possible to find both a series and a monograph library catalog
`
`record for the same publication.
`
`27.
`
`Periodical publications. A library typically creates a catalog record for a
`
`periodical publication when the library receives its first issue. When the institution receives
`
`subsequent issues/volumes of the periodical, the issues/volumes are checked in (often using a
`
`date stamp), added to the institution’s holdings records, and made available very soon
`
`thereafter—normally within a few days of receipt or (at most) within a few weeks of receipt.
`
`28.
`
`The initial periodicals record will sometimes not reflect all of the subsequent
`
`changes in publication details (including minor variations in title, etc.).
`
`29.
`
`Internet Archive. The Internet Archive is a non-profit digital library founded in
`
`1996.
`
`30.
`
`The Internet Archive maintains an archive of webpages collected from the
`
`Internet using software called a crawler. Crawlers automatically create a snapshot of webpages
`
`as they existed at a certain point in time. The WayBack Machine is an application using a
`
`crawler created by the Internet Archive to search its archive of Web page URLs and to represent,
`
`graphically, the date of each crawler capture.
`
`31.
`
`The Internet Archive, now with about 50 petabytes of data, collects only Web
`
`material that is publicly available. Some sites are “not archived because they were password
`
`protected, blocked by robots.txt, or otherwise inaccessible to our automated systems. Site
`
`owners might have also requested that their sites be excluded from the WayBack Machine” (see
`
`the WayBack Machine FAQ, http://archive.org/about/faqs.php#The Wayback Machine).
`
`
`
`-7-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 13 of 36 PageID #: 43066
`
`32. Many Internet Archive captures made by the WayBack Machine have a banner at
`
`the top with the capture date prominently displayed. Other dates when captures of the same
`
`URL have been made are indicated to the right and left of the date provided in the banner. Some
`
`captures may lack this banner. In any case, the URL for the capture begins with the
`
`identification of the Internet Archive page (e.g., http://web.archive.org/web/) followed by
`
`information that dates and time stamps the capture as follows: year in yyyy, month in mm, day in
`
`dd, time code in hh:mm:ss (e.g., 20041208081749, or 8 December 2004 at 8:17:49 a.m.). These
`
`elements are then followed by the URL of the original capture site.
`
`33.
`
`Internet Archive captures often include links to other, related documents.
`
`Sometimes these links have become inactive. Where they remain active, the WayBack Machine
`
`is programed to produce the archived file with the closest available date (not the closest
`
`available prior date) to the page upon which the link appeared and was clicked.
`
`34.
`
`The Internet Archive is a resource that is well known to library professionals and
`
`is used by many such professionals.
`
`35.
`
`Indexing. A researcher may discover material relevant to his or her topic in a
`
`variety of ways. One common means of discovery is to search for relevant information in an
`
`index of periodical and other publications. Having found relevant material, the researcher will
`
`then normally obtain it online, look for it in libraries, or purchase it from the publisher, a
`
`bookstore, a document delivery service, or other provider. Sometimes, the date of a document’s
`
`public accessibility will involve both indexing and library date information. Date information
`
`for indexing entries is, however, often unavailable. This is especially true for online indices.
`
`
`
`-8-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 14 of 36 PageID #: 43067
`
`36.
`
`Indexing services use a wide variety of controlled vocabularies to provide subject
`
`access and other means of discovering the content of documents. The formats in which these
`
`access terms are presented vary from service to service.
`
`37.
`
`Online indexing services commonly provide bibliographic information, abstracts,
`
`and full-text copies of the indexed publications, along with a list of the documents cited in the
`
`indexed publication. These services also often provide lists of publications that cite a given
`
`document. A citation of a document is evidence that the document was publicly available and in
`
`use by researchers no later than the publication date of the citing document.
`
`38.
`
`39.
`
`Prominent indexing services include:
`
`Engineering Village. Produced by Elsevier, a major publisher, Engineering
`
`Village provides access to the major databases for engineering, geology, unclassified
`
`government reports and patents both European and domestic. The engineering databases include
`
`Engineering Index, EiCompendex, and INSPEC. EiCompendex alone has 18.8 million records
`
`from 76 countries across 190 engineering disciplines. Inspec has over 15 million records and
`
`with its Inspec Archive, dates back to 1898.
`
`40.
`
`IEEE Xplore Digital Library. The Institute of Electrical and Electronics
`
`Engineers is the world’s largest organization for the advancement of technology, with some
`
`430,000 members in 160 countries. Known by its acronym IEEE, it has created IEEE Xplore
`
`Digital Library, which provides access to the contents of over 170 journals, more than 1,400
`
`conference proceedings, some 5,100 technical standards, 2,000 eBooks, and 400 educational
`
`courses. More than 3 million documents, dating from 1872, are searchable and available either
`
`through subscription or individual purchase.
`
`
`
`-9-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 15 of 36 PageID #: 43068
`
`41.
`
`ACM Digital Library. This index is produced by the Association for Computing
`
`Machinery, the world’s largest scientific and educational computing society. AMC Digital
`
`Library contains the full text of all AMC publications, hosted full-text publications from selected
`
`publishers, and the ACM Guide to Computing Literature—a comprehensive bibliography of
`
`computing literature beginning in the 1950s with more than a million entries. All metadata in the
`
`database are freely available on the Web, including abstracts, linked references, citing work, and
`
`usage statistics. Full-text articles are available with subscription.
`
`42.
`
`Scopus. Produced by Elsevier, a major publisher, Scopus is the largest database
`
`of abstracts and citations of peer-reviewed literature. Its scope includes the social sciences,
`
`science, technology, medicine, and the arts. It includes 60 million records from more than
`
`21,500 titles from some 5,000 international publishers. Coverage includes 360 trade
`
`publications, over 530 book series, more than 7.2 million conference papers, and 116,000 books.
`
`Records date from 1823.
`
`43.
`
`Google Scholar. Google Scholar indexes the texts and metadata of scholarly
`
`publications across a wide range of disciplines. It includes most peer-reviewed online academic
`
`journals, conference papers, theses, technical reports, and other material. Google does not
`
`publish the size of the Google Scholar database, but researchers have estimated that it contained
`
`approximately 160 million items in 2014 (Enrique Oduña-Malea, et al., “About the size of
`
`Google Scholar: playing the numbers,” Granada: EC3 Working Papers, 1B: 23 July 2014,
`
`available at https://arxiv.org/ftp/arxiv/papers/1407/1407.6239.pdf).
`
`44.
`
`ProQuest. ProQuest is a global information-content and technology company
`
`founded in 1938 (as University Microfilms) and marketing its products primarily to libraries.
`
`With over 125 billion digital pages of material, ProQuest provides access to dissertations and
`
`
`
`-10-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 16 of 36 PageID #: 43069
`
`theses, e-books, newspapers, periodicals, historical collections, governmental and cultural
`
`archives, and aggregated databases.
`
`IV. OPINIONS REGARDING INDIVIDUAL DOCUMENTS
`Document 1. Shoubridge, Peter, and Dadej, Arek. “Hybrid Routing in
`45.
`
`Dynamic Networks” in 1997 IEEE International Conference on Communications:
`
`Toward the Knowledge Millennium. ICC ’97, 8-12 June 1997 Montréal, Québec, Canada.
`
`Vol. 3 (Piscataway, NJ: Institute of Electrical and Electronics Engineers, 1997), 1381-1386.
`
`46.
`
`Authentication. Document 1 is a research paper given at an IEEE sponsored
`
`conference in Montréal in 1997 and published in the conference proceedings.
`
`47.
`
`Exhibit 1a, which is bates stamped BENNETT_000001-05, is a copy of
`
`Document 1 from the Northwestern University Library. Exhibit 1b, which is bates stamped
`
`BENNETT_000006, is a copy of that library’s catalog record for the proceedings of the 1997
`
`IEEE International Conference on Communications. Document 1 is also available online.
`
`Exhibit 1c, which is bates stamped BENNETT_000007-12, is a copy of Document 1 from the
`
`IEEE Xplore Digital Library, a common source of engineering literature.
`
`48.
`
`Public Accessibility. Document 1 entered the public realm of discourse when it
`
`was presented at the 1997 IEEE International Conference on Communications, held on 8-12 June
`
`1997 in Montréal.
`
`49.
`
`Exhibit 1d, which is bates stamped BENNETT_000013, is a copy of the
`
`Statewide Illinois Library Catalog monograph record for the proceedings of 1997 IEEE
`
`International Conference on Communications. It shows the proceedings are held by 70 libraries
`
`world-wide. It shows a date of Entry of 24 September 1997.
`
`
`
`-11-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 17 of 36 PageID #: 43070
`
`86.
`
`Conclusion. Based on the evidence presented here—periodical publication and
`
`library processing—it is my opinion that Document 7 is an authentic document that was publicly
`
`accessible to an ordinarily skilled researcher by May 1980.
`
`87.
`
`Document 8 has been translated from Hungarian to English. See Document 8,
`
`below, for my attestation regarding this translation.
`
`88.
`
`89.
`
`Document 8. Affidavit by Stephen Matthew Grimes, 8 January 2016.
`
`Exhibit 8a, which is bates stamped BENNETT_000244-66, is a copy of the
`
`affidavit, provided by counsel. I have compared the copy of Document 7 included in Mr.
`
`Grimes’s affidavit, which is bates stamped BENNETT_000245-52, with Exhibit 7a of this
`
`report, which is a copy of Document 7 from the University of Illinois at Urbana-Champaign
`
`Library. I find them to be the same document.
`
`90.
`
`Document 9. Bargen, Bradley and Donnelly, Peter. Inside DirectX. In-Depth
`
`Techniques for Developing High-Performance Multimedia Applications. Redmond, WA:
`
`Microsoft Press, 1998.
`
`91.
`
`92.
`
`Authentication. Document 9 is a book published in 1998.
`
`Exhibit 9a, which is bates stamped BENNETT_000267-87, is a copy of the
`
`book’s cover, title page, table of contents, other preliminary matter, Chapter 1, and the CD
`
`published with the book, from the Southern Illinois University Library. Exhibit 9b, which is
`
`bates stamped BENNETT_000288,, is a copy of that library’s catalog record for Document 9; it
`
`specifies the presence of the CD with the book.
`
`93.
`
`Public accessibility. Exhibit 9c, which is bates stamped BENNETT_000289-91,
`
`is a copy of the Statewide Illinois Library catalog record for Document 9, specifying the
`
`
`
`-18-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 18 of 36 PageID #: 43071
`
`presence of the CD and showing the book is held by 85 libraries world-wide. The date of Entry
`
`for this record is 22 September 1997.
`
`94.
`
`Exhibit 9d which is bates stamped BENNETT_000292, is a list of 2 publications
`
`citing Document 9 in 1998 identified by Google Scholar.
`
`95.
`
`Conclusion. Based on the evidence presented here—book publication, library
`
`cataloging, and citations—it is my opinion that Document 9 is an authentic document that was
`
`publicly accessible to ordinarily skilled researchers by early October 1997 and in actual use by
`
`researchers in 1998.
`
`96.
`
`Document 11. Naugle, Matthew. Network Protocol Handbook. McGraw-Hill
`
`Series on Computer Communications. New York, NY: McGraw-Hill, 1994.
`
`97.
`
`98.
`
`Authentication. Document 11 is a book published late in 1993.
`
`Exhibit 11a, which is bates stamped BENNETT_000293-408, is a copy of the
`
`cover, title page, table of contents, preliminary matter, and Chapter 6 of Document 11 from the
`
`University of Illinois at Urbana-Champaign Library. Exhibit 11b which is bates stamped
`
`BENNETT_000409, is that library’s catalog record, in MARC format, for Document 17.
`
`99.
`
`Public Accessibility. Exhibit 11c, which is bates stamped BENNETT_000410, is
`
`a copy of the Statewide Illinois Library Catalog record for Document 11, showing it is held by
`
`268 libraries world-wide.
`
`100. Exhibit 11d, which is bates stamped BENNETT_000411, is a copy of the United
`
`States Copyright Office registration information for Document 11. It shows that Document 11
`
`was published on 1 October 1993 and its copyright registered on 27 October 1993. Books
`
`published in the last quarter of the year often bear a printed publication date of the following
`
`year, as is the case with Document 11.
`
`
`
`-19-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 19 of 36 PageID #: 43072
`
`144. Conclusion. Based on the evidence presented here—library holdings, United
`
`States Copyright Office record, library catalog records, Internet Archive capture, and reviews—it
`
`is my opinion that Document 17 is an authentic document that was publicly available from its
`
`publisher on or about 30 October 1997, was publicly available in libraries at least by February
`
`1998, and was publicly available online at least by 5 December 1998. The evidence of reviews
`
`presented here indicates that Document 17 was publicly available at least by October 1997.
`
`145. Document 18. Heavy Gear II. Activision, 1999.
`
`146. Authentication. Document 18 is a computer game published on a CD in 1999.
`
`Exhibit 18a which is bates stamped BENNETT_000585-87, is a copy of the Moby Games
`
`description of Document 18, available at http://www.mobygames.com/game/heavy-gear-ii .
`
`147. Exhibit 18b, which is bates stamped BENNETT_000588, is a copy of the
`
`Statewide Illinois Library Catalog record for Document 18, showing this CD was first published
`
`in 1999.
`
`148. Public Accessibility. Exhibit 18c, which is bates stamped BENNETT_000589, is
`
`a copy of the United States Copyright Office record for Document 18, showing that Document
`
`18 was published on 22 June 1999 and registered for copyright on 25 June 1999. I conclude that
`
`Document 18 was publicly available from its publisher on or about 22 June 1999.
`
`149. Exhibit 18b, the Statewide Illinois Library Catalog record for Document 18, has a
`
`date of entry of 18 August 1999. Allowing for some time between the creation of this catalog
`
`record and the appearance of Document 18 on library shelves, where it would be publicly
`
`available, it is my opinion that Document 17 was publicly available in at least one library by
`
`September 1999.
`
`
`
`-28-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 20 of 36 PageID #: 43073
`
`150. Exhibit 18d, which is bates stamped BENNETT_000590, is a copy of an Internet
`
`Archive capture, of 23 August 2000, of an Activision page announcing the public availability of
`
`Document 18 for sale. It is self-evident that the Activision would have wished to make
`
`Document 18 as readily available as possible. Therefore, the reasonable conclusion is that (1)
`
`Internet search engines in 2000 would have been able to find and index Document 18, and (2) a
`
`person of ordinary skill in the art in 2000 using typical Internet search tools would have readily
`
`found Document 18.
`
`151. Exhibit 18a, the Moby Games description of Document 18, includes a list of
`
`reviews of Document 18, 8 of which were published between March 1999 and September 1999.
`
`152. Conclusion. Based on the evidence presented here—United States Copyright
`
`Office record, library catalog record, Internet Archive capture, and reviews—it is my opinion
`
`that Document 18 is an authentic document that was publicly available from its publisher on or
`
`about 25 June 1999, was publicly available in at least one library by September 1999, and was
`
`publicly available online at least by 23 August 2000. The evidence of reviews presented here
`
`indicates that Document 18 was publicly available at least by the Summer of 1999.
`
`153. Document 20. S. Alagar et al., “Reliable Broadcast in Mobile Wireless
`
`Networks, in Conference Record:MILCOM'95, , IEEE Military Communications
`
`Conference, November 6-8 1995, San Diego, CA, Vol. 1, (IEEE, November 1995): 236-240.
`
`154. Authentication. Document 20 is a paper given at a 1995 conference and published
`
`in the first volume of the three volume proceedings of that conference.
`
`155. Exhibit 20a, which is bates stamped BENNETT_000591-622, is a copy of
`
`Document 20, along with the Conference Record:MILCOM'95 title page and title page verso,
`
`welcoming messages, conference program, including panels, tutorials, an overview of conference
`
`
`
`-29-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 21 of 36 PageID #: 43074
`
`179. Conclusion. Based on the evidence presented here—bookseller listings and the
`
`Internet Archive—it is my opinion that Document 22 is an authentic document that was publicly
`
`available from its publisher no later than 14 November 1999.
`
`V.
`
`EXHIBITS
`
`180. The Exhibits referenced in this Report are true and correct copies of the materials
`
`identified above. Helen Sullivan is a Managing Partner in Prior Art Documentation Services.
`
`One of her primary responsibilities in our partnership is to secure the bibliographic
`
`documentation used in Exhibits to our reports.
`
`181. Ms. Sullivan and I work in close collaboration on the bibliographic
`
`documentation needed in each report. I will sometimes request specific bibliographic documents
`
`or, more rarely, secure them myself. In all cases, I have carefully reviewed the bibliographic
`
`documentation used in my report. My signature on the report indicates my full confidence in the
`
`authenticity, accuracy, and reliability of the bibliographic documentation used.
`
`182. All Exhibits were created on 29 February 2016 – 12 September 2017, and all
`
`URLs referenced in this report were available on 19 September 2017. In labeling the Documents
`
`and Exhibits, I have intentionally omitted Documents and corresponding Exhibits for numbers 2,
`
`10, 12, 14, and 19.
`
`VI. CONCLUSION
`183.
`In summary, I have concluded that Documents 1, 3, 4, 5, 6, 7, 8, 9, 11, 13, 15,
`
`16, 17, 18, 20, 21, and 22, discussed above, are all authentic documents that were all publicly
`
`accessible before 31 July 2000.
`
`184.
`
`I reserve the right to supplement my opinions in the future to respond to any
`
`arguments that Patent Owner or its expert(s) may raise and to take into account new information
`
`as it becomes available to me.
`
`
`
`-35-
`
`

`

`Case 1:16-cv-00453-RGA Document 499-1 Filed 03/08/18 Page 22 of 36 PageID #: 43075
`
`185.
`
`I declare that all statements made herein of my knowledge are true, and that all
`
`statements made on information and belief are believed to be true, and that these statements were
`
`made with the knowledge that willful false statements and the like so made are punishable by
`
`fine or imprisonment, or both, under Section 1001 of Title 18 of the United States Code.
`
` Executed th