Filed on behalf of:
`
`Patent Owner SightSound Technologies, LLC
`
`Paper No.
`
`By: David R. Marsh, PhD.
`Kristan L. Lansbery, Ph.D.
`ARNOLD & PORTER LLP
`
`555 12th Street, NW.
`Washington, DC 20004
`Tel: (202) 942-5068
`Fax:
`(202) 942-5999
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC,
`
`Petitioner,
`
`V.
`
`SIGHTSOUND TECHNOLOGIES, LLC,
`
`Patent Owner.
`
`Case CBM2013-00023
`
`Patent 5,966,440
`
`DECLARATION OF DAVID R. MARSH IN SUPPORT OF PATENT
`
`OWNER SIGHTSOUND TECHNOLOGIES, LLC’S RESPONSE PETITION
`
`SIGHTSOUND TECHNOLOGIES
`EXHIBIT 2323
`
`CBM2013-00023 (APPLE v. SIGHTSOUND)
`PAGE 000001
`
`
`
`Patent Owner SightSound Technologies, LLC
`
`Paper No.
`
`By: David R. Marsh, PhD.
`Kristan L. Lansbery, Ph.D.
`ARNOLD & PORTER LLP
`
`555 12th Street, NW.
`Washington, DC 20004
`Tel: (202) 942-5068
`Fax:
`(202) 942-5999
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC,
`
`Petitioner,
`
`V.
`
`SIGHTSOUND TECHNOLOGIES, LLC,
`
`Patent Owner.
`
`Case CBM2013-00023
`
`Patent 5,966,440
`
`DECLARATION OF DAVID R. MARSH IN SUPPORT OF PATENT
`
`OWNER SIGHTSOUND TECHNOLOGIES, LLC’S RESPONSE PETITION
`
`SIGHTSOUND TECHNOLOGIES
`EXHIBIT 2323
`
`CBM2013-00023 (APPLE v. SIGHTSOUND)
`PAGE 000001
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`US. Patent & Trademark Office
`
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`1, David R. Marsh, hereby declare as follows:
`
`1.
`
`I am a member of the Bar of the United States Patent and Trademark
`
`Office and a partner with the law firm of Arnold & Porter LLP, attorneys for
`
`Patent Owner SightSound Technologies, LLC.
`
`1 make this declaration in support
`
`of Patent Owner’s Response to Apple Inc.’s (“Petitioner”) Petition for Covered
`
`Business Method Patent Review of United States Patent No. 5,966,440.
`
`I have
`
`personal knowledge of all facts set forth in this declaration.
`
`2.
`
`Attached hereto as Exhibit 2324 is a true and correct copy of the full
`
`written transcript of the deposition of David M. Schwartz in the matter of Apple
`
`Inc. v. SightSound Technologies, LLC, dated December 9-10, 2013.
`
`3.
`
`Attached hereto as Exhibit 2325 is a true and correct copy of the full
`
`written transcript of the deposition of David M. Schwartz in the matter of
`
`SightSound. com Inc. v. N2K, Inc., dated February 1, 2001.
`
`4.
`
`Attached hereto as Exhibit 2326 is a true and correct copy of the full
`
`written transcript of the deposition of John P. J. Kelly in the matter of Apple Inc. v.
`
`SightSound Technologies, LLC, dated December 4, 2013.
`
`PAGE 000002
`
`
`
`5.
`
`Attached hereto as Exhibit 2327 is a true and correct copy of
`
`Recording Industry Association of America Year-End Shipment Statistics for
`
`2008, 2009, 2010, 2011, and 2012.
`
`6.
`
`Attached hereto as Exhibit 2328 is a true and correct copy of the full
`
`written transcript of a 1987 lecture given at Stanford University by David M.
`
`Schwartz and John Stautner.
`
`7.
`
`Attached hereto as Exhibit 2329 is a true and correct copy of an article
`
`entitled A Management/Preservation Scorecard, written by Bill Bolland, and
`
`published in the November 6, 1999 edition of Billboard Newspaper (available at
`
`http://books.google.com/books?id=eggEAAAAMBAJ&pg=PA92).
`
`8.
`
`Attached hereto as Exhibit 2330 is a true and correct copy of excerpts
`
`of Petitioner’s SEC Form 10-K for the fiscal year ending September 29, 2012
`
`(obtained fiom http ://www. sec. gov/edgar. shtml).
`
`9.
`
`Attached hereto as Exhibit 2331 is a true and correct copy of a Press
`
`Release by Petitioner, dated January 9, 2001, detailing Petitioner’ s introduction of
`
`its iTunes software at the 2001 San Francisco MacWorld Expo (available at
`
`
`htt
`://www.a 'le.com/ r/libr
`/2001/01/09A,
`le-hitroduces-iTune-s-Worlds-
`
`Best-and—Easiest-To-Use-Jukebox-Softwarehtml).
`
`PAGE 000003
`
`
`
`10. Attached hereto as Exhibit 2332 is a true and correct copy of excerpts
`
`of Petitioner’s SEC Form 10-K405 for the fiscal year ending September 29, 2001
`
`
`(obtained fiom http ://www. secgov/edgar. shtml).
`
`ll. Attached hereto as Exhibit 2333 is a true and correct copy of a Press
`
`Release by Petitioner, dated July 17 , 2002, detailing Petitioner’s introduction of its
`
`iTunes 3 software at the 2002 New York MacWorld Expo (available at
`
`
`htt
`://www.a
`
`le.com/ r/libra /2002/07/l7A le-Announces-iTunes-3.html).
`
`l2. Attached hereto as Exhibit 2334 is a true and correct copy of a Press
`
`Release by Petitioner, dated October 23, 2001, detailing Petitioner’s introduction
`
`of its iPod MP3 music player (available at
`
`
`htt
`://www.a ‘lecom/ r/libra /2001/10/23A le-Presents-iPodhtml).
`
`l3. Attached hereto as Exhibit 2335 is a true and correct copy of a Press
`
`Release by Petitioner, dated March 21, 2002, detailing Petitioner’s introduction of
`
`its second model of the iPod digital music player (available at
`
`
`htt
`://www.a
`lecom/ r/libr
`/2002/03/20A le-Introduces-lOGB-iPod-2-000-
`
`Songs-in-Your-Pockethtml).
`
`l4. Attached hereto as Exhibit 2336 is a true and correct copy of a Press
`
`Release by Petitioner, dated July 17 , 2002, detailing Petitioner’s introduction of its
`
`next generation iPod at the 2002 New York MacWorld Expo (available at
`
`
`htt
`://www.a 'le.com/ r/libr
`/2002/07/l7A,
`
`le-Unveils—New-iPodshtml).
`
`PAGE 000004
`
`
`
`15. Attached hereto as Exhibit 2337 is a true and correct copy of a Press
`
`Release by Petitioner, dated April 28, 2003, detailing Petitioner’s launch of the
`
`iTunes Music Store (available at
`
`
`htt
`://www.a
`lecorn/ r/libra ‘/2003/04/28A le-Launches-the-iTunes-Music-
`
`Storehtml).
`
`16. Attached hereto as Exhibit 2338 is a true and correct copy of a Press
`
`Release by Petitioner, dated October 16, 2003, detailing Petitioner’s launch of its
`
`second generation of the iTunes Music Store, which was available for use by both
`
`Mac and Windows users (available at
`
`
`htt
`://www.a
`le.com/ r/libra /2003/10/16A le-Launches-iTunes-for—
`
`Windowshtml).
`
`17. Attached hereto as Exhibit 2339 is a true and correct copy of a Press
`
`Release by Petitioner, dated February 25, 2010, detailing Petitioner’s
`
`announcement that the iTunes Music Store had sold more than 10 billion songs
`
`
`(available at ht ://www.a
`le.com/ r/libra /2010/02/25iTunes—Store—To s-10-
`
`Billion-Songs- Soldhtml).
`
`18. Attached hereto as Exhibit 2340 is a true and correct copy of a Press
`
`Release by Petitioner, dated February 6, 2013, detailing Petitioner’s announcement
`
`that the iTunes Music Store had sold more than 25 billion songs (available at
`
`PAGE 000005
`
`
`
`
`htt
`://Www.a
`le.com/ r/libra ‘/2013/02/06iTunes-Store-Sets-New-Record-With-
`
`25 Billion-Songs-Sold.html).
`
`19. Attached hereto as Exhibit 2341 is a true and correct copy of excerpts
`
`of Petitioner’s Fourth Quarter of Fiscal Year 2005 Earnings Call Transcript, dated
`
`October 13, 2005.
`
`20. Attached hereto as Exhibit 2342 is a true and correct copy of excerpts
`
`of Petitioner’s Second Quarter of Fiscal Year 2008 Earnings Call Transcript, dated
`
`April 23, 2008.
`
`21. Attached hereto as Exhibit 2343 is a true and correct copy of an article
`
`entitled Top Music Seller ’s Store has no Door, dated April 04, 2008, and published
`
`in the Los Angeles Times (available at
`
`htt
`
`://articles.latimes.com/2008/a r/04/business/fi-itunes4).
`
`22. Attached hereto as Exhibit 2344 is a true and correct copy of excerpts
`
`of Petitioner’s SEC Form 10-K for the fiscal year ending September 28, 2013
`
`(obtained fiom http://wwwsec.gov/edgarshtml).
`
`23. Attached hereto as Exhibit 2345 is a true and correct copy of excerpts
`
`of Petitioner’s SEC Form 10-K for the fiscal year ending September 24, 2011
`
`(obtained fiom http://wwwsec. gov/edgarshtml).
`
`PAGE 000006
`
`
`
`24. Attached hereto as Exhibit 2346 is a true and correct copy of excerpts
`
`of Petitioner’s First Quarter of Fiscal Year 2008 Earnings Call Transcript, dated
`
`January 22, 2008.
`
`25. Attached hereto as Exhibit 2347 is a true and correct copy of an online
`
`article entitled How i Tunes Works, written by Julie Layton and Jonathan Strickland
`
`(available at ht , ://electronics.howstuffworks.com/itunes5.htm).
`
`26. Attached hereto as Exhibit 2348 is a true and correct copy of a Joint
`
`Press Release between Petitioner and Akamai Technologies, Inc., dated April 23,
`
`2001, detailing Petitioner’s streaming model of content distribution (available at
`
`
`htt
`://www.a
`le.com/ r/libra /2001/04/23Akamai-and-A le-to-C-ontinue-
`
`
`Delive
`-of-Indust -Leadin -Intern’et-Streamm -Video-and-Audio.html).
`
`27. Attached hereto as Exhibit 2349 is a true and correct copy of
`
`Petitioner’s Corrected Opening Brief and Addendum in the matter ofApple Inc. v.
`
`[TC & Motorola Mobility, Inc, dated August 27, 2012.
`
`28. Attached hereto as Exhibit 2350 is a true and correct copy of a
`
`screenshot obtained fiom Petitioner’s website, detailing features of the “Music tab”
`
`found in its iTunes Music Store (obtained from
`
`http://www.apple.c-om/itunes/featur~es/).
`
`29. Attached hereto as Exhibit 2351 is a true and correct copy of a
`
`screenshot obtained fiom Petitioner’s website, detailing features of the “artist
`
`PAGE 000007
`
`
`
`page” found in its iTunes Music Store (obtained from
`
`http://wwwapp‘le.com/itunes/features/).
`
`30. Attached hereto as Exhibit 2352 is a true and correct copy of US.
`
`Patent No. 4,636,876, entitled “Audio Digital Recording and Playback System.”
`
`31. Mr. John Stautner provided a signed declaration, submitted herewith
`
`as Exhibit 2321, prior to counsel being informed by staff for the Board, on January
`
`2, 2014, that Patent Owner was to cite to Exhibit numbers provided by Petitioner’ s
`
`most recent Exhibit list. Therefore, citations within Mr. Stautner” s declaration to
`
`Exhibits 1310, 1315, 1320, and 1333 refer to Petitioner’s Exhibits 4310, 4315,
`
`4320, and 4333, respectively.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Sworn this 3rd day of January, 2014, at Washington, DC.
`
`
`/David R. Marsh/
`
`David R. Marsh
`
`Reg. No. 41,408
`
`PAGE 000008
`
`
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