UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HEWLETT-PACKARD COMPANY,
`Petitioner
`
`v.
`
`
`
`YYZ, LLC,
`Patent Owner
`
`
`
`CBM No. Unassigned
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`U.S. PATENT NO. 7,603,674
`
`
`
`
`
`DECLARATION OF CHANE CULLENS
`
`
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`HP_1030_0001
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HEWLETT-PACKARD COMPANY,
`Petitioner
`
`v.
`
`
`
`YYZ, LLC,
`Patent Owner
`
`
`
`CBM No. Unassigned
`
`U.S. PATENT NO. 7,603,674
`
`
`
`
`
`DECLARATION OF CHANE CULLENS
`
`
`
`
`
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`HP_1030_0001
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`
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`I, Chane Cullens, do hereby declare that:
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`1.
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`The information set forth in this declaration is based on my personal
`
`knowledge and recollection.
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`2.
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`I am currently employed as Product Manager by Hewlett-Packard
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`Company (“HP”) in Sandy Hook, Connecticut. I have been employed by HP since
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`2007.
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`3.
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`From 1999 to 2002 I was President of Bristol Technology, Inc. (“Bristol”).
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`From 2002 to 2007 I was Senior Vice President of Technology at Bristol. Bristol was
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`acquired by HP in or around 2007.
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`4.
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`Bristol was a software development company that developed and sold a
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`number of different software products. One of the software products developed and
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`sold by Bristol was called eSleuth.
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`5.
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`As President of Bristol, I was ultimately responsible for managing the
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`development, marketing, and sale of Bristol’s software products, including Bristol’s
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`eSleuth software product.
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`6.
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`Bristol offered Version 1.0 of Bristol’s eSleuth software (“eSleuth 1.0”) for
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`sale to Morgan Stanley and others, such as IBM, beginning in March of 2000. Bristol
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`offered for sale and distributed eSleuth 1.0 software to other customers beginning in
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`April 2000 as part of an early adoption release.
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`7.
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`I maintain a digital archive that contains some information and documents
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`from my time at Bristol. In 2014, I personally searched my archive for documents
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`-1-
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`HP_1030_0002
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`related to eSleuth and identified a number of files that are discussed herein.
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`8.
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`Exhibit 1004 is a printed copy of a file named “eSleuth History.doc” from
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`my digital archive of material from my time at Bristol. I am the author of Exhibit 1004.
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`9.
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`I authored the document identified as Exhibit 1004 on or about March 5,
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`2000. I drafted this document as part of my preparation for presenting Bristol’s eSleuth
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`software at the IBM MQSeries Conference in Las Vegas in June 2000. I wrote this
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`document to summarize, for my own use, the history of Bristol’s development of the
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`eSleuth software so that I could speak about Bristol’s development of eSleuth at the
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`conference. The document properties for the original file represented in Exhibit 1004
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`contain a DOCUMENT CREATED date of 3/5/2000 and a LAST MODIFIED date
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`of 3/5/2000. A partial screenshot showing these document properties is presented
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`below:
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`-2-
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`HP_1030_0003
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`10. Bristol began developing the eSleuth product in 1998. In 1998 and early
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`1999, eSleuth software was referred to as “Sonar.” Beginning sometime in the summer
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`of 1999, eSleuth software was referred to as “eScope.” By the fall of 1999 Bristol began
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`using the name “eSleuth” to refer to this software, and used the name eSleuth when the
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`product was first distributed to customers in 2000.
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`11.
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`I personally participated in several visits to potential customer sites, during
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`-3-
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`HP_1030_0004
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`at least the first half of 2000, for the purpose of marketing and demonstrating the
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`functionality of the eSleuth 1.0 product and for the purpose of lining up future sales of
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`the product. During these visits, I was accompanied by one or more sales
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`representatives from Bristol and we demonstrated the functionality of the eSleuth
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`software on a Bristol laptop computer, connected to a projector.
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`12.
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`I do not recall the names of all of the customer locations I visited in the
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`first half of 2000 to present eSleuth. I do recall visiting the office of Morgan Stanley in
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`New York City in the first quarter of 2000 and demonstrating the functionality of
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`eSleuth at this meeting. As reflected in Exhibit 1004, Morgan Stanley was also one of
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`the first customers to whom Bristol delivered a sales quote for eSleuth 1.0. While I did
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`not participate in every visit made by Bristol to potential customers during this time
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`period, other Bristol employees made similar visits to other potential customers during
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`the first half of 2000.
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`13.
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`In the first quarter of 2000, Bristol created eSleuth demonstration discs
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`for distribution to potential customers. These discs contained a copy of a technical
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`paper, along with demonstration video files, to help explain the features of the eSleuth
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`1.0 product. As part of our marketing efforts for eSleuth, Bristol provided copies of
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`these eSleuth demonstration discs to the potential customers we visited on sales calls
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`during the first half of 2000. Bristol also made the demonstration discs available to
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`potential customers upon request. The discs (and the materials contained on the disc)
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`were provided without any confidentiality restrictions on use of the information about
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`-4-
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`HP_1030_0005
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`eSleuth. Scanned images of two such eSleuth demonstration discs are depicted in
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`Exhibits 1005 and 1007.
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`14. Exhibit 1005 is a scanned copy of a Bristol eSleuth demonstration disc
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`that Bristol distributed to potential customers in the first quarter of 2000. I scanned the
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`eSleuth demonstration disc depicted in Exhibit 1005 and saved the scanned image to
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`my digital archive. The disc depicted in Exhibit 1005 is marked “© 1999.” I copied to
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`my digital archive a file named “Esleuthwhitepaper.pdf” from the disc depicted in
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`Exhibit 1005.
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`15. Exhibit 1006 is a copy of the digital file named “Esleuthwhitepaper.pdf”
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`that I copied to my personal archive from the disc depicted in Exhibit 1005. The
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`document identified as Exhibit 1006 bears the title “eSleuth - eBusiness Transaction
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`Analysis Software that Simplifies the Development of Reliable, High-Quality eBusiness
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`Systems.” The document properties for the original file represented in Exhibit 1006
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`contain a CREATED date of 1/28/2000 and a MODIFIED date of 1/28/2000. A
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`partial screenshot showing these document properties is presented below:
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`-5-
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`HP_1030_0006
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`16. Bristol employees who ultimately reported to me authored the whitepaper
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`in Exhibit 1006 which provided technical information about functionality of eSleuth 1.0
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`to potential customers.
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`17. Exhibit 1007 is a scanned copy of a Bristol eSleuth demonstration disc
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`that Bristol distributed to potential customers in the first half of 2000. I scanned the
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`eSleuth demonstration disc depicted in Exhibit 1007 and saved the scanned image to
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`my digital archive. The disc depicted in Exhibit 1007 is marked “© 2000.” I copied to
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`my digital archive a second file named “Esleuthwhitepaper.pdf” from the disc depicted
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`in Exhibit 1007.
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`18. Exhibit 1008 is a copy of the digital file named “Esleuthwhitepaper.pdf”
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`that I copied to my personal archive from the disc depicted in Exhibit 1007. The
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`-6-
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`HP_1030_0007
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`document identified as Exhibit 1008 bears the title “eBusiness Transaction Analysis
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`Software that Improves Reliability, Performance, and Quality.” The document
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`properties for the original file represented in Exhibit 1008 contain a CREATED date of
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`2/22/2000; the document does not contain any data in the MODIFIED field. A
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`partial screenshot showing these document properties is presented below:
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`
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`19. Bristol employees who ultimately reported to me authored the whitepaper
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`in Exhibit 1008 which provided technical information about functionality of eSleuth 1.0
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`to potential customers.
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`20. Bristol published the whitepaper in Exhibit 1008 on the Bristol website,
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`and also provided a copy of the whitepaper in Exhibit 1008 to potential customers
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`upon request.
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`-7-
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`HP_1030_0008
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`21.
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`Page 4 of Exhibit 1009 is a copy of a page from the Bristol website as it
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`existed at least as early as February 29, 2000 describing the eSleuth 1.0 software product
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`and containing a link to a copy of an eSleuth whitepaper. Pages 6 – 12 of Exhibit 1009
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`is a copy of a page from the Bristol website as it existed at least as early as May 28, 2000
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`describing the eSleuth software product in an online version of the whitepaper.
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`22. Bristol shipped multiple units of eSleuth 1.0 software in the United States
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`in April 2000 as part of its early adoption release launch. Two such recipients of
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`eSleuth 1.0 software were Morgan Stanley and IBM.
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`23. Around the time of Bristol’s early adoption release launch of eSleuth 1.0, I
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`was involved in Bristol’s marketing effort to introduce eSleuth 1.0 to the industry. An
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`example of my involvement with this marketing effort is reflected in Exhibit 1010,
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`which is a copy of a press release in which I am quoted, dated April 25, 2000 entitled
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`“Bristol Technology Inc. Announces Esleuth, Revolutionary E-business Transaction
`
`Analysis Software for IBM MQseries”. This press release, placed via Business Wire,
`
`announced the availability of Bristol’s eSleuth product though its early adoption
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`program.
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`24. Exhibit 1011 is a document entitled “eSleuth 1.0 User’s Guide” and
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`bearing a printed date of April 13, 2000. This document describes features of the
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`eSleuth 1.0 software product. This document is the user guide that Bristol distributed
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`to customers of eSleuth 1.0 in April 2000 and thereafter, along with the eSleuth 1.0
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`software product, and was provided without any confidentiality restrictions on use of
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`-8-
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`HP_1030_0009
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`the information about eSleuth. The document properties for the file represented in
`
`Exhibit 1011 contain a CREATED date of 4/13/2000 and a MODIFIED date of
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`4/13/2000. A partial screenshot showing these document properties is presented
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`below:
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`
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`25. Exhibit 1012 is a document entitled “eSleuth 1.0 Administrator’s Guide”
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`and bearing a printed date of April 10, 2000. This document describes features of the
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`eSleuth 1.0 software product. This document is the administrator guide that Bristol
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`distributed to customers of eSleuth 1.0 in April 2000 and thereafter, along with the
`
`eSleuth 1.0 software product, and was provided without any confidentiality restrictions
`
`on use of the information about eSleuth. The document properties for the file
`
`represented in Exhibit 1012 contain a CREATED date of 4/10/2000 and a
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`-9-
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`HP_1030_0010
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`
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`MODIFIED date of 4/10/2000. A partial screenshot showing these document
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`properties is presented below:
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`26. Bristol typically published release notes with the release of any version of a
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`software product, summarizing the documentation, installation requirements, support
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`options, and/or changes or known issues related to the new release. Exhibit 1013 is a
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`document entitled “Release Notes eSleuth Early Adoption1.0.0.” This document is the
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`release note that Bristol distributed to customers of eSleuth 1.0 in April 2000 and
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`thereafter, along with the eSleuth 1.0 software product, and was provided without any
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`confidentiality restrictions on use of the information about eSleuth. The document
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`properties for the file represented in Exhibit 1013 contain a CREATED date of
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`4/13/2000 and a MODIFIED date of 4/13/2000. A partial screenshot showing these
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`-10-
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`HP_1030_0011
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`
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`document properties is presented below:
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`27.
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`I attended the IBM MQSeries Conference in Las Vegas in June 2000 and
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`spoke with potential customers about Bristol’s eSleuth software. At this conference,
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`Bristol had a booth at which the eSleuth software product was demonstrated and from
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`which marketing materials regarding the eSleuth software product, such as the disc
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`depicted in Exhibit 1007, were distributed to attendees of the conference. During this
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`conference, employees from Bristol gave two presentations about eSleuth. At this
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`conference, Bristol collected names of individuals who visited the Bristol booth where
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`eSleuth was displayed, and used those names in a raffle with prizes. The IBM
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`MQSeries Conference in LasVegas in June of 2000 was open to interested members of
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`the public.
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`28.
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`I was quoted in a press release dated June 13, 2000 entitled “Bristol
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`-11-
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`HP_1030_0012
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`Technology Inc. Ships eSleuth; Revolutionary e-Business Transaction Analysis Software
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`for IBM MQSeries.” This press release, placed via Business Wire, announced that
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`Bristol would demonstrate eSleuth at the IBM MQSeries Conference in LasVegas in
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`June of 2000. A copy of this press release is attached as Exhibit 1014. Bristol
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`demonstrated the features of eSleuth 1.0 at this conference in June of 2000.
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`29.
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`eSleuth 1.0 software and related documentation in the form of the eSleuth
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`User’s Guide at Exhibit 1011, the eSleuth 1.0 Administrator’s Guide at Exhibit 1012,
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`the eSleuth 1.0 Release Notes at Exhibit 1013, and the whitepapers at Exhibits 1006
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`and 1008 were available to the public without restriction as of April 2000. The
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`whitepaper at pages 6 – 12 of Exhibit 1009 was available to the public without
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`restriction at least as early as May 28, 2000.
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`30. At some point in between 2000 and 2006, after the launch of eSleuth and
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`prior to HP’s acquisition of Bristol, Bristol changed the name of the eSleuth software
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`product to TransactionVision.
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`31. As President of Bristol, I was on occasion asked to sign legal documents
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`related to the protection of Bristol’s intellectual property, including trademarks owned
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`by Bristol.
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`32. On April 2, 2001 I signed a declaration related to Bristol’s application for
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`the trademark “eSleuth”. The declaration states in part: “Date of first use of mark
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`anywhere: December 27, 2000”; “Date of first use of mark in commerce which the U.S.
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`Congress may regulate: February 28, 2001”. A copy of this April 2, 2001 declaration is
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`-12-
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`HP_1030_0013
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`attached as Exhibit 1015.
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`33. On May 16, 2001 I signed an affidavit which contained the same
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`information concerning the date of first use and first use in commerce of the “eSleuth”
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`mark. The affidavit, attached as Exhibit 1016 states in part: “The date of first use and
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`date of first use in commerce for BRISTOL’s ESLEUTH trademark in International
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`Class 42 are December 27, 2000 and February 28, 2001 respectively, as stated in the
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`Amendment to Allege Use dated April 2, 2001.” The affidavit in Exhibit 1016 states
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`that 3 specimens showing use of the “eSleuth” mark are being submitted with Bristol’s
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`Office Action Reply.
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`34.
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`I do not recall why the specific dates of December 27, 2000 and February
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`28, 2001 were cited in the declaration, however, I knew that Bristol had begun to use
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`the “eSleuth” mark at least as early as the dates identified in Exhibit 1015 and Exhibit
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`1016.
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`35. To the extent that the dates of use as stated in these affidavits do not
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`reflect that use of the mark began on or before the listed dates, I believe that the dates
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`listed are incorrect.
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`36.
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`Furthermore, to the extent that one would conclude, based on the dates of
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`use as stated in these affidavits, that the company did not otherwise engage in the sales
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`and marketing efforts described above, such a conclusion would be incorrect. The
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`company did engage in these efforts to promote and sell the eSleuth product, including
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`providing the information and materials relating to the eSleuth product to customers
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`-13-
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`HP_1030_0014
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`HP_1030_0015
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`HP_1030_0015
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