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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`PATENT: 5,978,791
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`INVENTOR: DAVID A. FARBER
`AND RONALD D. LACHMAN
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`FILED: OCTOBER 24, 1997
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` ISSUED: NOVEMBER 2, 1999
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`
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`TITLE: DATA PROCESSING
`SYSTEM USING SUBSTANTIALLY
`UNIQUE IDENTIFIERS TO
`IDENTIFY DATA ITEMS,
`WHEREBY IDENTICAL DATA
`ITEMS HAVE THE SAME
`IDENTIFIERS
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`DECLARATION OF JASON S. SADOFSKY
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`EMC/VMware v. PersonalWeb
`IPR2013-00082
`EMCVMW 1072
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`
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`I, Jason S. Sadofsky, declare as follows:
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`U.S. Patent 5,978,791
`IPR2013-00082
`Declaration of Jason S. Sadofsky
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`1.
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`I have been asked by Petitioner to provide this Declaration regarding
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`certain factual issues that are common to six Inter Partes Review proceedings, Case
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`Nos. IPR2013-00082, -00083, -00084, -00085, -00086 and -00087.
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`2.
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`The testimony I provide in this Declaration is based on my personal
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`knowledge of the relevant facts. Upon investigation, I came across several
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`documents that confirm my recollection of these facts. A list of these documents is
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`attached hereto as Appendix A.
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`I.
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`Background
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`3.
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`I am a technology archivist and software historian. I am currently an
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`archivist for the Internet Archive, a non-profit digital library offering free universal
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`access to books, movies, and music, as well as 342 billion archived webpages
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`available through the Wayback Machine service.
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`4.
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`In addition to my archival work at Internet Archive, for the last 15
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`years, I have been independently collecting, archiving, and making, once again
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`publicly available, historical software, shareware, and freeware programs that were
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`first published and released to the public in the 1980s and 1990s. Many in my
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`industry refer to this time period as the Bulletin Board System (“BBS”) era.
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`Related to this work, I directed the film, The BBS Documentary, an eight-episode
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`documentary about the subculture born from the creation of the BBS. This film
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`was initially released in May 2005.
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`II. BBS, Walnut Creek CDROM, and the Proliferation of Shareware
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`5.
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`A BBS is a computer system that allows users to connect directly to
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`the system using a modem. Once connected, users can perform functions such as
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`uploading and downloading computer files, reading news and bulletins, and
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`exchanging messages with other users.
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`6.
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`The term “Bulletin Board System” was coined as a reference to the
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`traditional cork-and-pin bulletin boards often found in entrances of supermarkets,
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`schools, libraries, and other public areas where people can post messages,
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`advertisements, or community news. In many ways, BBSs were a precursor to the
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`World Wide Web, social network services, and other aspects of the Internet.
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`7.
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`In the 1980s and 1990s, much of the shareware and freeware
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`movement was driven by user distribution of software through BBSs. In the
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`1990s, many companies started collecting as much of this shareware and freeware
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`that they could find directly from BBS sites, as well as from Simtel, a highly
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`respected electronic archive of shareware and freeware collected from various
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`BBSs as well as from other sources. The Simtel archive was initially maintained
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`on network servers maintained by the U.S. Army in New Mexico and mirrored
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`around the world.1 After collecting all of this software, these companies would
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`publish as many of those programs as they could onto CD-ROMs, which they
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`would then offer for sale.
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`8.
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`One of the first and largest worldwide commercial distributors of free
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`software on CD-ROMs was Walnut Creek CDROM (“Walnut Creek”). Walnut
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`Creek was founded in or around 1991 and ran the busiest FTP site on the Internet,
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`ftp.cdrom.com, for many years. Walnut Creek would collect and publish onto CD-
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`ROMs as much shareware on a regular basis as they could, and would sell these
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`CD-ROMs for as little as $15 per disc.
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`III. cd.textfiles.com
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`9.
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`In 1998, I launched the website textfiles.com. This website was and
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`still is dedicated to collecting files and related materials from the BBS era.
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`Originally built from files I collected as a BBS user in my early teens, as well as
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`1 B. Graves, “CD-evelopment: Discovering a Wealth of Dev Tools on CD-ROM,”
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`Computer Shopper (Apr. 1, 1994) (“[T]he Simtel disc (also published by Walnut
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`Creek) … holds the entire contents of the Simtel-20 archives, . . . You’ll also see
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`[shareware programs involving] time and date manipulation, hashing functions,
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`data compression . . . .”) (EMCVMW 1043).
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`system operator (“sysop”) of The Works BBS, this website has expanded to many
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`gigabytes of data and receives thousands of visitors a day.
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`10.
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`In 2003, I launched a subdomain of textfiles.com called
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`cd.textfiles.com. This website was and still is dedicated to preserving, archiving,
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`and providing free universal access to unaltered historical shareware and freeware
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`programs and data that were initially made publically available in the BBS era of
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`the 1980s and 1990s. The primary sources of this archive are a combination of
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`CD-ROMs—several of which are Walnut Creek CD-ROMs—from my own
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`collection, those donated from various individuals, and those purchased at auctions
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`such as eBay.
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`11.
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`In order to publish online the historical software and data (including
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`software user manuals) stored on these CD-ROMs while preserving all of the
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`original metadata (including the creation dates of files made by the file system, the
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`date on which I uploaded the files, and file names), I first transfer a perfect copy
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`(an “ISO” image) of the original CD-ROM to a computer, then use a software
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`program to extract the individual files from that copy, and then publish these files
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`onto cd.textfiles.com. The result is a collection of files that—instead of sitting in
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`the CD-ROM—sit in an online file directory making it easier for people to browse
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`and download. It was also my practice to scan images of the CD-ROM label and
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`package inserts, such as the images shown in EMCVMW 1045.
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`IV. The Kantor Reference
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`U.S. Patent 5,978,791
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`12.
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`I have been asked to provide my understanding of certain facts
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`relating to the Frederick W. Kantor FWKCS™ Contents-Signature System Version
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`1.22 (August 10, 1993) user manual (the “Kantor Reference,” EMCVMW 1004),
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`an electronic file distributed with the software package of the same name.
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`13.
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`It is my belief that the Kantor Reference is a true and correct copy of
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`the document that Petitioner claims it is. It is also my belief that the Kantor
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`Reference was publicly accessible prior to April 11, 1994.
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`14.
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`I verified the authenticity of the Kantor Reference by comparing it
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`with a version I obtained from cd.textfiles.com.2 I had previously archived the ZIP
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`file of Kantor’s software and documentation, FWKCS122.ZIP, to cd.textfiles.com
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`from my copy of the Simtel MSDOS Archive, October 1993 Edition, Walnut Creek
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`CD-ROM (the “October 1993 Walnut Creek CD-ROM”). A picture of the label
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`and package inserts for this CD-ROM is attached as EMCVMW 1045. I also
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`2 J. Sadofsky, “Index of /simtel/simtel9310/MSDOS/BBS,” cd.textfiles.com,
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`archived on March 2, 2009,
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`http://cd.textfiles.com/simtel/simtel9310/MSDOS/BBS/ (follow link for
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`“FWKCS122.ZIP”).
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`archived a copy of the ISO file from the original CD-ROM at my employer’s web
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`service, the Software Archive.3
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`15. To perform the verification, I downloaded the FWKCS122.ZIP file to
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`my personal computer, and unzipped the file. The file included an installer
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`program and instructions for installation. I installed the program. After installing
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`the program, I determined that the included text file manual “FWKCS122.REF” is
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`identical to the Kantor Reference filed as EMCVMW 1004.
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`16.
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`It is also my belief that the Kantor Reference was publicly accessible
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`prior to April 11, 1994. The Kantor Reference is dated August 10, 1993. The
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`timestamp associated with the source file FWKCS122.REF has a timestamp of
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`August 10, 1993 at 1:22 AM. The Kantor Reference is part of the FWKCS122.ZIP
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`file from my copy of the October 1993 Walnut Creek CD-ROM. This particular
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`edition was advertised and reviewed in various publications such as Computer
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`3 “Simtel-20 MS-DOS Collection CD-ROM (Walnut Creek) (October 1993),” The
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`Shareware CD Archive, archived on Sept. 16, 2011,
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`http://archive.org/details/cdrom-simteloctober1993.
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`Shopper4 and would have been widely distributed to the public prior to April 11,
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`1994.
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`17. Similarly, the Simtel archive also contained a copy of the
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`FWKCS122.ZIP file, which contained the Kantor Reference. In fact, it was this
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`copy of the FWKCS122.ZIP file from Simtel that Walnut Creek CDROM
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`collected and published in its October 1993 edition of Simtel MSDOS Archive.
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`Accordingly, the Kantor Reference was also publicly accessible through the online
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`Simtel archive prior to April 11, 1994.
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`18. Additionally, the Kantor Reference identifies several BBSs that ran
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`and hosted the file FWKCS122.ZIP, including The Invention Factory BBS,
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`Channel One BBS, and Executive Network (“ExecNet”) BBS. Kantor Reference,
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`at 16 (EMCVWM 1004). The Kantor Reference also includes information about
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`4 See A. Nallawalla, “Easier CIS Access with QModem Patch,” The Age Company
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`(Feb. 8, 1994) (“WALNUT Creek CDROM is well-known for its compilations of
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`popular Internet archives. It recently released the October edition of the Simtel
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`MSDOS Collection. Simtel is a highly respected repository of shareware and
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`public domain software in the United States, although its contents are mirrored by
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`other machines around the world…”) (EMCVMW 1044).
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`U.S. Patent 5,978,791
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`Declaration of Jason S. Sadofsky
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`freely distributing the FWKCS Version 1.22 shareware and registering after trying
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`it for a demo period. Kantor Reference, at 30, 166 (EMCVMW 1004).
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`19. Nothing in the Kantor Reference indicates that it was modified in any
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`way from its original form.
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`20.
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`In signing this declaration, I recognize that the declaration will be
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`filed as evidence in a contested case before the Patent Trial and Appeal Board of
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`the United States Patent and Trademark Office.
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`I also recognize that I may be
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`subject to cross examination in the case and that cross examination will take place
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`within the United States. If cross examination is required of me, I will appear for
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`cross examination within the United States during the time allotted for cross
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`examination.
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`21.
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`I declare that all statements made herein of my own knowledge are
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`true and that all statements made on information and belief are believed to be true;
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`and further that these statements were made with the knowledge that willful false
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`statements and the like so made are punishable by fine or imprisonment, or both,
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`under Section 1001 of Title 18 of the United States Code.
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`Executed on June 11, 2013
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`U.S. Patent 5,978,791
`IPR2013-00082
`Declaration of Jason S. Sadofsky
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`APPENDIX A: EXHIBIT LIST
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`Exhibit Description
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`F. Kantor, “The Frederick W. Kantor Contents-Signature System
`Version 1.22,” FWKCS122.REF (August 10, 1993)
` B. Graves, “CD-evelopment: Discovering a Wealth of Dev Tools on
`CD-ROM,” Computer Shopper (Apr. 1, 1994)
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`A. Nallawalla, “Easier CIS Access with QModem Patch,” The Age
`Company (Feb. 8, 1994)
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`Simtel MSDOS Archive, October 1993 Edition, Walnut Creek CD-
`ROM label, as well as front, back, and inside cover
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`1004.
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`1043.
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`1044.
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`1045.
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