UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SYMANTEC CORP.
`Petitioner
`v.
`
`FINJAN, INC.
`Patent Owner
`
`Case: To Be Assigned
`U.S. Patent No. 8,141,154
`
`Declaration of Sylvia Hall-Ellis in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,141,154
`
`I, Sylvia Hall-Ellis, declare as follows:
`
`1.
`
`I have been retained by Symantec Corporation ("Symantec") for
`
`the above-captioned inter partes review proceeding. I understand that this
`
`proceeding involves U.S. Patent No. 8,141,154 ("the '154 patent") entitled
`
`"System and Method for Inspecting Dynamically Generated Executable
`
`Code," and that the '154 patent is currently assigned to Finjan, Inc.
`
`I have
`
`personal knowledge of the facts set forth herein, and am competent to testify
`
`to the same.
`
`000001
`
`Symantec 1005
`IPR of U.S. Pat. No. 8,141,154
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SYMANTEC CORP.
`Petitioner
`v.
`
`FINJAN, INC.
`Patent Owner
`
`Case: To Be Assigned
`U.S. Patent No. 8,141,154
`
`Declaration of Sylvia Hall-Ellis in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,141,154
`
`I, Sylvia Hall-Ellis, declare as follows:
`
`1.
`
`I have been retained by Symantec Corporation ("Symantec") for
`
`the above-captioned inter partes review proceeding. I understand that this
`
`proceeding involves U.S. Patent No. 8,141,154 ("the '154 patent") entitled
`
`"System and Method for Inspecting Dynamically Generated Executable
`
`Code," and that the '154 patent is currently assigned to Finjan, Inc.
`
`I have
`
`personal knowledge of the facts set forth herein, and am competent to testify
`
`to the same.
`
`000001
`
`Symantec 1005
`IPR of U.S. Pat. No. 8,141,154
`
`
`
`2.
`
`I
`
`am currently the Director of Grants
`
`and Resource
`
`Development for the Colorado Community College System. I am also an
`
`Adjunct Professor in the School of Information at San José State University.
`
`I obtained a Masters of Library Sciences from the University of North Texas
`
`in 1972, and a Ph.D. in Library and Information Science from the University
`
`of Pittsburgh in 1985. I was first employed as a librarian in 1966, and have
`
`been involved in the field of library sciences since, holding numerous
`
`positions.
`
`3.
`
`I have also given over one hundred presentations in the field,
`
`including several on library cataloging systems and MARC standards. My
`
`current research interests include library cataloging systems, metadata, and
`
`organization of electronic resources.
`
`4.
`
`My full curriculum vitae is attached hereto as Symantec 1006.
`
`My rate is $300 per hour for my work on these matters. All materials
`
`considered in conjunction with this report have been cited herein, including
`
`all exhibits attached hereto.
`
`5.
`
`I am a member of the American Library Association (ALA) and
`
`its Association for Library Collections & Technical Services (ALCTS)
`
`Division, and I served on the Committee on Cataloging: Resource and
`
`Description (which wrote the new cataloging rules) and as the chair of the
`
`000002
`
`
`
`Committee for Education and Training of Catalogers and the Competencies
`
`and Education for a Career in Cataloging Interest Group. I also served as the
`
`Chair of the ALCTS Division’s Task Force on Competencies and Education
`
`for a Career in Cataloging. Additionally, I have served as the Chair for the
`
`ALA Office of Diversity’s Committee on Diversity.
`
`6.
`
`I am fully familiar with a library cataloging standard known as
`
`the “Machine Readable Cataloging” standard, also known as “MARC,”
`
`which is an industry-wide standard method of organizing library catalog
`
`information. MARC was first developed in the 1960’s by the Library of
`
`Congress. A MARC-compatible library is one that has a catalog consisting of
`
`individual MARC records for each of its works. Today, MARC is the
`
`primary communication protocol for the transfer and storage of bibliographic
`
`metadata in libraries.
`
`7. When an Online Computer Library Center (OCLC) participating
`
`institution acquires a work, it creates a MARC record for this work in its
`
`computer catalog system and OCLC automatically supplies the date of
`
`creation. The MARC record creation date reflects the date on or shortly after
`
`the item was first acquired and catalogued. Once the MARC record is created
`
`by a cataloger at an OCLC participating member
`
`institution,
`
`it
`
`is
`
`000003
`
`
`
`instantaneously available to any OCLC participating members, and,
`
`therefore, available to the public.
`
`8.
`
`A MARC record comprises several fields, each of which
`
`contains specific data about
`
`the work. Each field is identified by a
`
`standardized, unique, three-digit code corresponding to the type of data that
`
`follow. For example, a work’s title is recorded in field 245, the primary
`
`author of the work is recorded in field 100, an item’s International Standard
`
`Book Number (“ISBN”) is recorded in field 020, an item’s Library of
`
`Congress call number is recorded in field 050, and the publication date is
`
`recorded in field 260 under the subfield “c.” If a work is a periodical, then its
`
`publication frequency is recorded in field 310, and the publication dates (e.g.,
`
`the first and last publication) are recorded in field 362, which is also referred
`
`to as the enumeration/chronology field. The library that created the record is
`
`recorded in field 040 in subfield “a” with a unique library code.1 When
`
`viewing the MARC record online via Online Computer Library Center’s
`
`(“OCLC”) Connexion database, hovering over this code with the mouse
`
`reveals the name of the library. I used this method of “mousing over” the
`
`library codes in the OCLC database to identify the originating library for all
`
`1 For more information about MARC field 040, please refer to
`http://www.oclc.org/bibformats/en/0xx/040.html. The symbol in subfield “a” corresponds to the symbol for
`the institution inputting the original record. For a list of OCLC symbols and their corresponding institutions,
`please refer to http://www.oclc.org/contacts/libraries.en.html.
`
`000004
`
`
`
`of the MARC records in this declaration. In the MARC records in the OCLC
`
`Connexion database, MARC field 040 contains the OCLC symbols of
`
`institutions transcribing, creating, and modifying the record.
`
`9.
`
`OCLC was created “to establish, maintain and operate a
`
`computerized library network and to promote the evolution of library use, of
`
`libraries themselves, and of librarianship, and to provide processes and
`
`products for the benefit of library users and libraries,
`
`including such
`
`objectives as increasing availability of library resources to individual library
`
`patrons and reducing the rate of rise of library per-unit costs, all for the
`
`fundamental public purpose of furthering ease of access to and use of the
`
`ever-expanding body of worldwide scientific,
`
`literary and educational
`
`knowledge and information.”2 Among other services, OCLC and its members
`
`are
`
`responsible
`
`for
`
`maintaining
`
`the WorldCat
`
`database
`
`(http://www.worldcat.org/), used by independent and institutional libraries
`
`throughout
`
`the world. OCLC is the international cooperative to which
`
`libraries catalog records and others pay to access MARC records. The
`
`MARC records extracted from the OCLC database were generated in the
`
`ordinary course of business, and were personally located and downloaded by
`
`myself.
`
`10. OCLC also provides its members online access to MARC
`
`000005
`
`
`
`records through its OCLC Connexion database. When an OCLC member
`
`institution acquires a work, it creates a MARC record for this work in its
`
`computer catalog system in the ordinary course of its business. MARC
`
`records created at the Library of Congress are tape-loaded into the OCLC
`
`database through a subscription to MARC Distribution Services daily or
`
`weekly. Once the MARC record is created by a cataloger at an OCLC
`
`member institution or is tape-loaded from the Library of Congress, it is then
`
`made available to any other OCLC members online, and, therefore, made
`
`available to the public.
`
`11. When an OCLC member institution creates a new record,
`
`OCLC automatically supplies the date of creation for that record. The MARC
`
`record creation date reflects the date on which, or shortly after which, the
`
`item was first acquired or cataloged.
`
`12.
`
`The date of creation for the MARC record appears in the fixed
`
`field (008), characters 00 through 05. Field 005 is a 16 digit field that record
`
`the Date characters yyyymmdd include 4 for the year, 2 for the month, and 2 for
`
`the day. The Date entered on file never changes. These dates are automatically
`
`supplied by the OCLC system and cannot be changed by the user. When the
`
`MARC record is created in OCLC, it is available throughout the world to
`
`other libraries and in WorldCat, the public version of OCLC Connexion.
`
`000006
`
`
`
`Thus, the date of creation of the MARC record by a cataloger at an OCLC
`
`member institution reflects when the underlying item is accessible to the
`
`public.
`
`13. Upwards of
`
`two-thirds to three-quarters of book sales to
`
`libraries come from a jobber or wholesaler for online and print resources.
`
`These resellers make it their business to provide books to their customers as
`
`fast as possible, often providing turnaround times of only a single day after
`
`publication. Libraries purchase a significant portion of the balance of their
`
`books directly from publishers themselves, which provide delivery on a
`
`similarly expedited schedule. In general, libraries make these purchases
`
`throughout the year as the books are published and shelve the books as soon
`
`thereafter as possible in order to make the books available to their patrons.
`
`Thus, books are generally available at libraries across the country within just
`
`a few days of publication.
`
`14. Authoritative databases such as Association of Computing
`
`Machinery (ACM) Digital Library, were used to confirm citation details of
`
`the reference discussed in this declaration.
`
`15. Attached hereto as Exhibit Symantec 1004 is a true and correct
`
`copy of Design and implementation of a distributed virtual machine for
`
`networked computers, by Emin Sirer et al. (“Sirer”,) which appeared at pages
`
`000007
`
`
`
`202-216 of the Proceedings of the 17th ACM Symposium on Operating
`
`Systems Principles, December 12-15, 1999, Charleston, SC (the “ACM
`
`SOSP Proceedings,”) as can be seen from a printout from the ACM Digital
`
`Library Portal database, a true and correct copy of which is attached hereto
`
`as Exhibit Symantec 1007.
`
`16. Attached hereto as Exhibit Symantec 1008 is a true and correct
`
`copy of the MARC record for the ACM SOSP Proceedings. The MARC
`
`record at Exhibit Symantec 1008 was obtained from the OCLC Connexion
`
`database that is maintained during the ordinary course of business, of which I
`
`personally identified and located. The MARC record at Exhibit Symantec
`
`1008 is identified as OCLC record number 875003574. As can be derived
`
`from Exhibit Symantec 1008, OCLC record number 875003574 for the ACM
`
`SOSP Proceedings was first created on February 7, 2000 by a cataloger at the
`
`Edinburgh University Library.
`
`17.
`
`In view of
`
`the foregoing,
`
`the ACM SOSP Proceedings,
`
`including Sirer, would have been accessible to the public as of February 7,
`
`2000.
`
`000008
`
`
`
`July 2, 2015
`
`000009
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