DOCKET NO: 0100157-00244
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`PATENT: 6,415,280
`
`
`INVENTOR: DAVID A. FARBER
`AND RONALD D. LACHMAN
`
`
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`FILED: APR. 1, 1999
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` ISSUED: JUL. 2, 2002
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`
`
`TITLE: IDENTIFYING AND
`REQUESTING DATA IN A
`NETWORK USING IDENTIFIERS
`WHICH ARE BASED ON THE
`CONTENT OF THE DATA
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`DECLARATION OF MICHAEL A. SUSSELL
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`EMC/VMware v. PersonalWeb
`IPR2013-00083
`EMCVMW 1042
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`PATENT: 6,415,280
`
`
`INVENTOR: DAVID A. FARBER
`AND RONALD D. LACHMAN
`
`
`
`FILED: APR. 1, 1999
`
`
`
` ISSUED: JUL. 2, 2002
`
`
`
`TITLE: IDENTIFYING AND
`REQUESTING DATA IN A
`NETWORK USING IDENTIFIERS
`WHICH ARE BASED ON THE
`CONTENT OF THE DATA
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
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`DECLARATION OF MICHAEL A. SUSSELL
`
`EMC/VMware v. PersonalWeb
`IPR2013-00083
`EMCVMW 1042
`
`
`
`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
`
`I, Michael A. Sussell, declare as follows:
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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 and have been a self-employed computer technician since around
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`1996. From 1983 to 1996, I was the co-owner and system operator (“sysop”) of
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`The Invention Factory Bulletin Board System (the “Invention Factory”), which I
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`ran with my wife, Kathy Sussell.
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`II. Bulletin Board Systems
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`4.
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`Bulletin Board Systems (“BBSs”) are computer systems that allow
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`users to share files, messages, and articles. Once connected to a BBS, users can
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`search for as well as upload and download content such as computer files, read
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`news articles, and exchange messages with each other.
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`- 2 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
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`5.
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`By the mid-1990s, users could generally find software and other files
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`by either browsing through file directories or performing keyword searches.
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`III. The Invention Factory
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`6. My wife and I launched the Invention Factory in 1983. Starting with
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`one phone line in 1983, the Invention Factory quickly grew to become one of the
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`world’s largest BBSs. As one newspaper reported, by mid-1993, we had over
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`3,000 subscribers, with nearly 500 from other countries. D. Welcher, “A family’s
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`line of business,” Business Times (Singapore), at 1 (June 21, 1993) (“Welcher”,
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`EMCVMW 1043). In the 1993-1994 timeframe, we routinely received around
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`4,000 to 5,000 calls on average per day.
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`7.
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`The Invention Factory offered both paid and unpaid access to files
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`uploaded to and saved on its servers. Unpaid users had access to freeware
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`uploaded to our BBS, whereas paid subscribers had access to freeware and
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`shareware.
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`8.
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`By 1993, the Invention Factory ran PCBoard BBS software.1 This
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`software enabled the Invention Factory’s keyword search functionality that was
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`
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`1 See generally F. Clark, “PCBoard v 14.5 User Manual” (1990) (EMCVMW
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`1047) for a description of PCBoard’s various functions.
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`- 3 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
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`provided to all of our users—both paid and non-paid. To utilize this function,
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`users would first select the particular “Welcome” screen that contained the search
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`bar. They would then enter in a word or phrase and select one of the various
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`search commands. A search command would instruct our BBS servers to search
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`both the titles and descriptions of the files that were previously uploaded to our
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`BBS and still stored by our servers.
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`9.
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`The other main way that users would search for content of interest
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`during this time period would be to browse through the Invention Factory’s simple
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`directory structure of categories (which we called, “directories”), ranging from
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`various descriptive and meaningful directories such as “games” or “file utilities.”
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`Any given file could show up in more than one directory depending on the number
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`of directories assigned to it. After selecting one of these file directories, users
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`could browse the list of file titles and descriptions.
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`10.
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`It was common for any given file that we hosted—i.e., a file that was
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`uploaded to our BBS and stored on our servers—to be publicly accessible and
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`available for an extended period of time such as several months or even years.
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`- 4 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
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`IV. The Kantor Reference
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`11.
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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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`12.
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`It is my belief that the Kantor Reference (EMCVMW 1004) was
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`publicly accessible prior to April 11, 1994.
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`13. Many years prior to 1993, Dr. Kantor reached out to our BBS and
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`together we discussed a common BBS sysop problem of managing storage space.
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`After various discussions, Dr. Kantor developed and then released the first version
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`of Frederick W. Kantor FWKCS™ Contents-Signature System software, and chose
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`the Invention Factory as one of the software’s initial release sites. In addition to
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`hosting this software on our site, we also installed and utilized the program on our
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`BBS servers.
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`14.
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`I have reviewed a July 2, 1994 post to the “comp.sys.novell”
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`newsgroup entitled, “Pirated software on server. Who’s liable?”, and it is
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`consistent with my recollection that “FWKCS has been [as of July 2, 1994] used
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`for years on the largest BBS’s such as Channel 1 and The Invention Factory.” N.
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`Hirsch, “Pirated software on server. Who’s liable?” post to the “comp.sys.novell”
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`newsgroup on July 2, 1994, at 1 (EMCVMW 1046). I recall Channel 1 (also
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
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`referred to as “Channel One”) as having also used FWKCS because its sysop,
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`Brian Miller, would ocassionally call me with various questions about the
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`installation and operation of various versions of FWKCS. See B. Miller, “ziplab
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`on bbses other,” post to the “alt.bbs” newsgroup on March 30, 1992, at 1
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`(recommending FWKCS v 1.17, described as a program that “automatically
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`process[es] uploaded files on BBS” and “catches duplicate or redundant files”)
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`(EMCVMW 1045).
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`15. From the first time we released and installed Frederick W. Kantor
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`FWKCS™ Contents-Signature System software through the close of business in
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`1996, the Invention Factory extensively utilized and hosted current versions of
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`FWKCS software on its BBS. During this same time, the Invention Factory also
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`hosted and thus made publicly accessible and available the complete FWKCS ZIP
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`file that contained both the software as well as related documentation such as user
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`manuals.
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`16. Dr. Kantor’s software eliminated duplicate files from our hard drives
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`and thus increased our storage capacity. It did so by creating an alphanumeric
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`signature which came to be known and thought of as a “fingerprint” of every file
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`on our hard drives. It then used these fingerprints (called “contents-signatures”) to
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`find and delete duplicates.
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`- 6 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
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`17. Because we found FWKCS to be useful, we promoted the software
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`and publicly distributed the corresponding ZIP file as widely as possible—to both
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`users and other BBS sysops alike.
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`18. For example, we advertised FWKCS to users by including
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`information about it on our “Welcome” screen, which all users—whether paid or
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`non-paid—could immediately see. Additionally, we made the FWKCS ZIP files
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`publicly accessible and available under four different directories of our single-page
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`directory list—“system utilities,” “file utilities,” “BBS,” and “PCBoard utilities” (a
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`separate directory targetted towards PCBoard sysops). Moreoever, we distributed
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`these ZIP files on floppy disks at various BBS-related conferences.2
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`
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`2 For example, I recall distributing floppy disks of then-current versions of various
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`shareware—including FWKCS—hosted by the Invention Factory at the 1993 One
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`BBSCon Convention that took place in Colorado Springs, CO. I have reviewed the
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`Computer Shopper article entitled, “Treading the boards,” dated January 1, 1994
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`(EMCVMW 1044), and this article refreshes my recollection that this convention
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`took place on August 25-29, 1993. D. Fowler, “Treading the boards: Online
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`Networking Exchange and BBS Convention 1993 report,” Computer Shopper (Jan.
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`1, 1994), at 54 (EMCVMW 1044).
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`- 7 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
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`19.
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`I accordingly believe that the Kantor Reference was publicly
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`accessible on and through the Invention Factory prior to April 11, 1994. The
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`Kantor Reference—like its other versions—was shareware and thus freely
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`downloadable and widely available to the general public for an extended period of
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`time.
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`20. Moreover, the Kantor Reference was readily accessible and available
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`to people interested in file management. People interested in file management—
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`such as other BBS sysops—would have found the Kantor Reference by browsing
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`under categories that contained words such as “system,” “file,” “BBS,” and/or
`
`“utilities.”
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`21. Additionally, people interested in file management would have also
`
`found the Kantor Reference by performing a keyword search including the word or
`
`words “file” and/or “duplicate,” which I recall as being part of the automatically
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`posted description that Dr. Kantor used when uploading his FWKCS ZIP files.
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`22.
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`It is my recollection that Dr. Kantor normally distributed his software
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`by uploading a ZIP file containing not only his software but also other
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`documentation to our BBS (as well as other BBSs, whose sysops would contact me
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`with questions about installing and operating FWKCS). The only way for users to
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`access this software through our BBS was to download the entire ZIP file that
`- 8 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
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`contained not only the software but also its associated documentation.
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`Accordingly, users and other BBS sysops who were interested in and received the
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`FWKCS v 1.22 software from our BBS would have also received the Kantor
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`Reference.
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`23. Based on my extensive interactions and conversations with Dr.
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`Kantor, I recognize certain distinctive characteristics of the contents and substance
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`of the Kantor Reference.
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`24. For example, I recognize by the title of the Kantor Reference that it
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`refers to Dr. Kantor’s de-duplication software which he distinctively referred to as
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`the “FWKCS Contents-Signature Sytem.” I recognize “FWK” as referring to Dr.
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`Kantor’s initials and the “CS” as referring to his software’s distinctive “contents-
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`signature” feature. I recall that the phrase “contents-signature” refers to a file’s
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`“fingerprint,” which was used by Dr. Kantor’s system to find and delete duplicate
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`files.
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`25.
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`I have reviewed the Kantor Reference and its description of FWKCS
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`v 1.22 is consistent with my recollection of how FWKCS software ran on our BBS.
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`For example, the Kantor Reference’s explanation regarding saving hard drive
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`space by deleting duplicate files (EMCVMW 1004, at Preface) and regarding
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`master lists (e.g., CSLIST.SRT) for keeping track of the fingerprints for all of the
`- 9 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
`
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`files on various hard drives (EMCVMW 1004, at 18) are consistent with my
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`recollection of how FWKCS software ran on our BBS.
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`26. Moreover, the Kantor Reference describes certain interactions I had
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`with Dr. Kantor as well as certain aspects of the Invention Factory that only Dr.
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`Kantor would have known. For example, to facilitate Dr. Kantor’s provision of
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`FWKCS technical support to the Invention Factory, I granted Dr. Kantor special
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`access to our BBS’s data. The table listing “Invention Factory” data disclosed on
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`page 212 of the Kantor Reference (EMCVMW 1004) is consistent with my
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`recollection of our BBS’s data. More specifically, I recognize the first two
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`columns as listing a file’s contents-signature, the third column as listing a file’s
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`name, the fourth column as listing the name of the ZIP file that contains the file
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`named in the third column, and the fifth column as the directory path where the
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`particular ZIP file resides.
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`27. Lastly, I have reviewed page 5 of the Kantor Reference (EMCVMW
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`1004) and its description of the Invention Factory as storing 14.6 gigabytes of data
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`and utilizing 46 “nodes” is consistent with my recollection of our BBS’s activities
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`on or around the August 1993 copyright date of this manual. In BBS terminology,
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`a “node” referred to a single telephone line that was connected to a modem that
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`was connected to a computer. The June 21, 1993 Business Times (Singapore)
`- 10 -
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
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`article’s description of the Invention Factory as having “46 lines” as of June 1993
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`is also consistent with both my recollection and the Kantor Reference. (Welcher at
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`2, EMCVMW 1043).
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`28.
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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. 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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`- 11 -
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`US. Patent 6,415,280
`1PR20'1 3-00083
`Declaration of Michael A. Sussell
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`29.
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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 M2013
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`ink/1%: W
`
`Michael A. Sussell
`
`Brooklyn, NY
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`-12-
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`U.S. Patent 6,415,280
`IPR2013-00083
`Declaration of Michael A. Sussell
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`APPENDIX A: EXHIBIT LIST
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`
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`Exhibit Description
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` 1004.
`
`F. Kantor, “The Frederick W. Kantor Contents-Signature System
`Version 1.22,” FWKCS122.REF (August 10, 1993)
`1043. D. Welcher, “A family’s line of business,” Business Times
`(Singapore) (June 21, 1993)
`1044. D. Fowler, “Treading the boards: Online Networking Exchange and
`BBS Convention 1993 report,” Computer Shopper (Jan. 1, 1994)
`1045. B. Miller, “ziplab on bbses other,” post to the “alt.bbs” newsgroup on
`March 30, 1992
`1046. N. Hirsch, “Pirated software on server. Who’s liable?” post to the
`“comp.sys.novell” newsgroup on July 2, 1994
`
`1047.
`
`F. Clark, “PCBoard v 14.5 User Manual” (1990)
`
`
`
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`- 13 -
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