DECLARATION OF THOMAS A. DAY REGARDING
`
`THE SWELLSEAL® HYDROPHILIC WATERSTOP BROCHURE
`
`. My name is Thomas A. Day.
`
`.
`
`.
`
`I am competent to execute this Declaration, which I do upon personal knowledge.
`
`I am the principal of Day & Company, LLC, a software development and consulting
`
`firm. I am a forensic software examiner, intellectual property analyst, and
`
`professional software developer with thirty—four years’ experience in the computer
`
`industry. My curriculum vitae is attached to this Declaration as Exhibit A.
`
`I am being
`
`compensated for my work at a rate of $450.00 per hour.
`
`.
`
`In my capacity as a forensic analyst of computer-based evidence, I have examined
`
`numerous electronic storage devices, electronically stored documents, and types of
`
`internet obtained evidence. On multiple occasions I have been qualified by courts as
`
`an expert on matters of the provenance, integrity, authenticity, and the dates of
`
`creation of and public availability of electronically stored evidence.
`
`.
`
`I have been asked by counsel for BLD Services, LLC to examine a document titled
`
`“SWELLSEAL® Hydrophilic Waterstop Solutions” (the “SWELLSEAL Brochure”),
`
`a true and correct copy of which is attached to this Declaration as Exhibit B and
`
`which, according to my understanding, is Exhibit Ex. 1005 in the accompanying IPR
`
`on US Patent No. 8,667,991, and to form an opinion as to when this document was
`
`authored in its present form and when it became publicly available through the
`
`internet.
`
`BLD Services, LLC Ex. 1110
`Page 1
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`
`
`THE SWELLSEAL® HYDROPHILIC WATERSTOP BROCHURE
`
`. My name is Thomas A. Day.
`
`.
`
`.
`
`I am competent to execute this Declaration, which I do upon personal knowledge.
`
`I am the principal of Day & Company, LLC, a software development and consulting
`
`firm. I am a forensic software examiner, intellectual property analyst, and
`
`professional software developer with thirty—four years’ experience in the computer
`
`industry. My curriculum vitae is attached to this Declaration as Exhibit A.
`
`I am being
`
`compensated for my work at a rate of $450.00 per hour.
`
`.
`
`In my capacity as a forensic analyst of computer-based evidence, I have examined
`
`numerous electronic storage devices, electronically stored documents, and types of
`
`internet obtained evidence. On multiple occasions I have been qualified by courts as
`
`an expert on matters of the provenance, integrity, authenticity, and the dates of
`
`creation of and public availability of electronically stored evidence.
`
`.
`
`I have been asked by counsel for BLD Services, LLC to examine a document titled
`
`“SWELLSEAL® Hydrophilic Waterstop Solutions” (the “SWELLSEAL Brochure”),
`
`a true and correct copy of which is attached to this Declaration as Exhibit B and
`
`which, according to my understanding, is Exhibit Ex. 1005 in the accompanying IPR
`
`on US Patent No. 8,667,991, and to form an opinion as to when this document was
`
`authored in its present form and when it became publicly available through the
`
`internet.
`
`BLD Services, LLC Ex. 1110
`Page 1
`
`
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`6. My opinion, in brief, is that the SWELLSEAL Brochure was authored in its present
`
`form on or before March 13, 2006, and was publicly available on or before October
`
`15, 2006. A detailed explanation of my opinion follows.
`
`For an indication of when the SWELLSEAL Brochure was authored in its present
`
`form, I looked first to the internal metadata of the document as it is available on the
`
`Web today, at <htthwwdeneefcom/USA/index2.p_hp?omon=com docman&
`
`
`task=doc View&gid=547<emid=99999999>. It is immaterial which of several
`
`sources for this document is used for this test, because they are all identical, as I will
`
`explain below.
`
`Metadata are information about an electronic document, such as the time the
`
`document was first created and the time it was last modified, and they generally
`
`reside in two places. “System” metadata, also called “external” metadata, are
`
`generated by and attached to the “outside” of the file by the operating system, and are
`
`unreliable for our present purposes. “Application” metadata, also called “internal”
`
`metadata, are generated by the program — in the present case Adobe QuarkXPressl —
`
`that authored, or most recently converted the document, and they are stored within the
`
`document file, Visible to users of that program or to forensic analysts. These latter
`
`metadata are suitable to our purposes here as they survive operations such as posting
`
`to or downloading from Web sites.
`
`1 The document at issue is a PDF document, which we typically think of as having been generated by Adobe Acrobat;
`
`BLD Services, LLC Ex. 1110
`Page 2
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`
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`9. Adobe QuarkXPress’ application metadata for the document show it to have been
`
`modified into its current form at 6:57 PM on March 13, 2006. (The fact that this is
`
`only about eight minutes after it was created simply suggests that QuarkXPress
`
`“created” it from some other format, for example from a Microsoft Word document.)
`
`In the absence of a malicious user tampering with the document using sophisticated
`
`tools, this time stamp is reliable, and, in any case, we have other indicia that support
`
`it. The following is a screen shot of the Document Properties for the document
`
`retrieved through my search:
`
` r
`’o'dw'riw!
`Document Properties
`
`
`
`
`
`File; SwellseaLHydrophi|ic_Waterstop_Solutions.pdf
`
`
`Title;
`
`choklet [3.qu
`
`
`l
`
`Authon
`
`I
`
`Subject:
`Keywords:
`
`
`
`
`
`Additional Metadata".
`
`‘
`
`Created:
`
`3313,3006 6:43:56 PM
`
`Modified:
`
`3/13/2006 6:57:02 PM
`
`Application: QuarkXPresmftm) 6.5
`
`Advanced
`
`PDF Producer: QuarkXPregsitm) 6:5
`
`PDF Version:
`
`1.4 (Acrobat 5.x)
`
`Location: Cz‘xProjectflBLD v. LMK'i
`
`File Size:
`
`805.69 KB (825,026 Bytes]
`
`PageSize:
`
`Tagged PDF: No
`
`8.50x11.00 in
`
`NumberofPage:
`
`Fast Web View: Yes
`
`4
`
`:
`
`i
`
`2
`
`‘
`
`l
`
`l
`
`l
`
`.____ _* WMMMW _-_~.__ Hm" _ u t
`Help
`
`.
`
`w a.“ ,— _ - N.“ -_»-_
`
`_..__ - ._._ M
`
`l
`
`Description ESecurity’ Fonts
`Description
`
`Advanced
`
`
`
`
`
`V
`
`i
`
`3
`l'
`
`i
`'
`
`BLD Services, LLC Ex. 1110
`Page 3
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`
`
`10. A second way of dating the SWELLSEAL Brochure is to examine the dates on which
`
`it was archived by the Internet Archive organization, described at <web.archive.org>.
`
`The Internet Archive is an independent organization that retains periodic snapshots of
`
`the Web. The Internet Archive makes publicly available the pages and documents it
`
`finds and the dates on which it finds them. My review indicates the Deneef site has
`
`been archived 236 times by the Internet Archive so far between 1998 and 2014.
`
`ll.
`
`I examined the snapshot that the Internet Archive took of the Deneef site on May 26,
`
`2006. The home page of the Internet Archive’s rendering of the site on that date may
`
`
`be found at <https://web.archive.org/web/20060526081917/http:/www.deneef.com/>.
`
`By successively traversing menus within the snapshot, I reached the SWELLSEAL
`
`
`Brochure as it was archived on the nearest date, at <https://web.archive.org/web/
`
`20061 01 5 l 80046/http:/www.deneefcom/index.php?optio =com_docman&task=cat_
`
`view&0id=33<emid=3 5>. This tells us that this copy of the brochure was
`
`necessarily posted to the Web by October 15, 2006, and the fact that the Internet
`
`Archive’s crawlers were able to access the brochure on that date means that the
`
`general public was able to access the document as well. This copy is identical to the
`
`copy available today,2 including the 2006 last-modified date, corroborating the
`
`Internet Archive crawl date.
`
`12.
`
`It is almost certainly not possible to falsify Internet Archive content or dates, and I am
`
`not aware of any accounts of it having been done. The US. Patent and Trademark
`
`Office and the European Patent Office both accept date stamps from the Internet
`
`Archive (also referred to as the “Wayback Machine” or “WBM”) as evidence of the
`
`availability of prior art. See USPTO “Preissuance Submissions (Third Party
`
`BLD Services, LLC Ex. 1110
`Page 4
`
`
`
`Submissions)” at 4. The federal courts also generally recognize the Internet Archive
`
`as possessing “sufficient indicia of reliability to support introduction of contents into
`
`evidence.”
`
`3
`
`13. A third way of dating the SWELLSEAL Brochure is to search for it using Google
`
`Search, with a restriction on first-crawled dates. Searching for “swellseal
`
`compression” with a date restriction of January 1, 1990 through March 31, 2007, with
`
`the search performed on December 17, 2014, returns the following as the first two
`
`results :
`
`swellsea! compression
`
`
`
`[PDF’VieW — Deneef Construction Chemicals
`
`1.~«;*.-*».="&."«.»'.deneef.con‘:EU8/1\.~"ino‘e:<2a":351':citenzc0:175:31:mars,,. v
`1
`+3?“ . SWLUSEIAI {
`1' (front .9: Estaterstxagss expand coon. contact witn water
`
`3.3" orgcznt and C? . .te a compression eat .5123'332313 1an e wads-none;
`
`1m] \t/iew - Deneef Construction Chemicals
`
`i.-'n~’.=1'.vtdeneetcomiUSAl-‘ineex’z.ginp?option=comfiocntan... v
`‘
`'
`‘ « SWELL SUM. .- Joint :s a flexz’oée co-exétuo‘ec’ v.31:
`
`gga': compressicm :: >1: “3.; ."-‘ sax-e: 2,;
`record i”
`
`SWEILSEAI
`
`£31372 1‘5:
`
`'
`
`14. The first result is the SWELLSEAL Brochure, and the preview text in the result is
`
`prefaced with date on which Google first found the brochure at that URL, namely
`
`3 ForeWord Magazine, Inc. v. OverDrive, Inc, 1 lo. 1:10—cv—1144, 2011 US. Dist. LEXIS 125373, at *10 (\VD. Mich.
`Oct. 31, 2011); see also Market-Alerts Pty. Ltd. v. Bloomberg Fin. L.P., Nos. 12—780 to —785 (GMS), 2013 US. Dist.
`LEXIS 15300, at *18 n.12 (D. Del. Feb. 5, 2013) (noting that WBM has “generally been accepted as evidence of prior art
`
`BLD Services, LLC Ex. 1110
`Page 5
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`
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`January 1, 2007. (Note that Google does not crawl all sites continuously, so that this
`
`date simply tells us when Google first found the brochure, not when it was posted.)
`
`This copy of the brochure is identical to the copies found by the two previous
`
`methods, supra.
`
`15.
`
`It should be noted that Deneef’s site today provides a “Details” table for the
`
`SWELLSEAL Brochure showing the document as having been created and last
`
`updated at 21 :52 on November 5, 2010. There are several reasons to understand this
`
`as the most recent date on which this branch of the Web site was re-hosted, and not
`
`the time when the underlying document was modified: (a) other brochures in sibling
`
`branches bear identical time stamps, (b) the internal metadata of the document itself
`
`show the 2006 time stamp, and (c) this is typical behavior for Web authoring tools
`
`populating such a properties table — the tools understand only the time at which they
`
`are posting a document, or the time at which a document was most recently copied to
`
`its current location on the Web server, and not the internal structure and content of the
`
`document itself.
`
`I HEREBY DECLARE under penalty of perjury that the foregoing is true and correct.
`
`Thomas A. Day
`
`Date: December 17, 2014
`
`BLD Services, LLC Ex. 1110
`Page 6
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`BLD Services, LLC Ex. 1110
`Exhibit A - Page 7
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`BLD Services, LLC Ex. 1110
`Exhibit A - Page 8
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`BLD Services, LLC Ex. 1110
`Exhibit A - Page 9
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`
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`BLD Services, LLC Ex. 1110
`Exhibit A - Page 10
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`
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`BLD Services, LLC Ex. 1110
`Exhibit A - Page 11
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`
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`BLD Services, LLC Ex. 1110
`Exhibit A - Page 12
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`BLD Services, LLC Ex. 1110
`Exhibit B - Page 13
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`BLD Services, LLC Ex. 1110
`Exhibit B - Page 14
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`BLD Services, LLC Ex. 1110
`Exhibit B - Page 15
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`
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`BLD Services, LLC Ex. 1110
`Exhibit B - Page 16
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`
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