`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SYMANTEC CORP.
`Petitioner
`v.
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`FINJAN, INC.
`Patent Owner
`
`Case: To Be Assigned
`U.S. Patent No. 8,677,494
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`Declaration of Sylvia Hall-Ellis in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,677,494
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`I, Sylvia Hall-Ellis, declare as follows:
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`1.
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`I have been retained by Symantec Corporation ("Symantec") for
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`the above-captioned inter partes review proceeding. I understand that this
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`proceeding involves U.S. Patent No. 8,677,494 ("the '494 patent") entitled
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`"Malicious mobile code runtime monitoring system and methods," and that
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`the '494 patent
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`is currently assigned to Finjan, Inc.
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`I have personal
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`knowledge of the facts set forth herein, and am competent to testify to the
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`same.
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`Symantec 1006
`IPR of U.S. Pat. No. 8,677,494
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`000001
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`2.
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`I
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`am currently the Director of Grants
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`and Resource
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`Development for the Colorado Community College System. I am also an
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`Adjunct Professor in the School of Information at San José State University.
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`I obtained a Masters of Library Sciences from the University of North Texas
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`in 1972, and a Ph.D. in Library and Information Science from the University
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`of Pittsburgh in 1985. I was first employed as a librarian in 1966, and have
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`been involved in the field of library sciences since, holding numerous
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`positions.
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`3.
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`I have also given over one hundred presentations in the field,
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`including several on library cataloging systems and MARC standards. My
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`current research interests include library cataloging systems, metadata, and
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`organization of electronic resources.
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`4.
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`My full curriculum vitae is attached hereto as Symantec Ex.
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`1007. My rate is $300 per hour for my work on these matters. All materials
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`considered in conjunction with this report have been cited herein, including
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`all exhibits attached hereto.
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`5.
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`I am a member of the American Library Association (ALA) and
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`its Association for Library Collections & Technical Services (ALCTS)
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`Division, and I served on the Committee on Cataloging: Resource and
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`Description (which wrote the new cataloging rules) and as the chair of the
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`000002
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`Committee for Education and Training of Catalogers and the Competencies
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`and Education for a Career in Cataloging Interest Group. I also served as the
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`Chair of the ALCTS Division’s Task Force on Competencies and Education
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`for a Career in Cataloging. Additionally, I have served as the Chair for the
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`ALA Office of Diversity’s Committee on Diversity.
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`6.
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`I am fully familiar with a library cataloging standard known as
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`the “Machine Readable Cataloging” standard, also known as “MARC,”
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`which is an industry-wide standard method of organizing library catalog
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`information. MARC was first developed in the 1960’s by the Library of
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`Congress. A MARC-compatible library is one that has a catalog consisting of
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`individual MARC records for each of its works. Today, MARC is the
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`primary communication protocol for the transfer and storage of bibliographic
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`metadata in libraries.
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`7. When an Online Computer Library Center (OCLC) participating
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`institution acquires a work, it creates a MARC record for this work in its
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`computer catalog system and OCLC automatically supplies the date of
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`creation. The MARC record creation date reflects the date on or shortly after
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`the item was first acquired and catalogued. Once the MARC record is created
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`by a cataloger at an OCLC participating member
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`institution,
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`it
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`is
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`instantaneously available to any OCLC participating members, and,
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`therefore, available to the public.
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`8.
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`A MARC record comprises several fields, each of which
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`contains specific data about
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`the work. Each field is identified by a
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`standardized, unique, three-digit code corresponding to the type of data that
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`follow. For example, a work’s title is recorded in field 245, the primary
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`author of the work is recorded in field 100, an item’s International Standard
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`Book Number (“ISBN”) is recorded in field 020, an item’s Library of
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`Congress call number is recorded in field 050, and the publication date is
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`recorded in field 260 under the subfield “c.” If a work is a periodical, then its
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`publication frequency is recorded in field 310, and the publication dates (e.g.,
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`the first and last publication) are recorded in field 362, which is also referred
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`to as the enumeration/chronology field. The library that created the record is
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`recorded in field 040 in subfield “a” with a unique library code.1 When
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`viewing the MARC record online via Online Computer Library Center’s
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`(“OCLC”) Connexion database, hovering over this code with the mouse
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`reveals the name of the library. I used this method of “mousing over” the
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`library codes in the OCLC database to identify the originating library for all
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`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.
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`000004
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`of the MARC records in this declaration. In the MARC records in the OCLC
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`Connexion database, MARC field 040 contains the OCLC symbols of
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`institutions transcribing, creating, and modifying the record.
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`9.
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`OCLC was created “to establish, maintain and operate a
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`computerized library network and to promote the evolution of library use, of
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`libraries themselves, and of librarianship, and to provide processes and
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`products for the benefit of library users and libraries,
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`including such
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`objectives as increasing availability of library resources to individual library
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`patrons and reducing the rate of rise of library per-unit costs, all for the
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`fundamental public purpose of furthering ease of access to and use of the
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`ever-expanding body of worldwide scientific,
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`literary and educational
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`knowledge and information.”2 Among other services, OCLC and its members
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`are
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`responsible
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`for
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`maintaining
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`the WorldCat
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`database
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`(http://www.worldcat.org/), used by independent and institutional libraries
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`throughout
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`the world. OCLC is the international cooperative to which
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`libraries catalog records and others pay to access MARC records. The
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`MARC records extracted from the OCLC database were generated in the
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`ordinary course of business, and were personally located and downloaded by
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`myself.
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`2 Third Article, Amended Articles of Incorporation of OCLC Online Computer Library Center,
`Incorporated (available at http://www.oclc.org/en-US/membership/councils.html).
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`000005
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`10. OCLC also provides its members online access to MARC
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`records through its OCLC Connexion database. When an OCLC member
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`institution acquires a work, it creates a MARC record for this work in its
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`computer catalog system in the ordinary course of its business. MARC
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`records created at the Library of Congress are tape-loaded into the OCLC
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`database through a subscription to MARC Distribution Services daily or
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`weekly. Once the MARC record is created by a cataloger at an OCLC
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`member institution or is tape-loaded from the Library of Congress, it is then
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`made available to any other OCLC members online, and, therefore, made
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`available to the public.
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`11. When an OCLC member institution creates a new record,
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`OCLC automatically supplies the date of creation for that record. The MARC
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`record creation date reflects the date on which, or shortly after which, the
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`item was first acquired or cataloged.
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`12.
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`The date of creation for the MARC record appears in the fixed
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`field (008), characters 00 through 05. Field 005 is a 16 digit field that record
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`the Date characters yyyymmdd include 4 for the year, 2 for the month, and 2 for
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`the day. The Date entered on file never changes. These dates are automatically
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`supplied by the OCLC system and cannot be changed by the user. When the
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`MARC record is created in OCLC, it is available throughout the world to
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`000006
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`other libraries and in WorldCat, the public version of OCLC Connexion.
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`Thus, the date of creation of the MARC record by a cataloger at an OCLC
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`member institution reflects when the underlying item is accessible to the
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`public.
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`13. Upwards of
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`two-thirds to three-quarters of book sales to
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`libraries come from a jobber or wholesaler for online and print resources.
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`These resellers make it their business to provide books to their customers as
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`fast as possible, often providing turnaround times of only a single day after
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`publication. Libraries purchase a significant portion of the balance of their
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`books directly from publishers themselves, which provide delivery on a
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`similarly expedited schedule. In general, libraries make these purchases
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`throughout the year as the books are published and shelve the books as soon
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`thereafter as possible in order to make the books available to their patrons.
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`Thus, books are generally available at libraries across the country within just
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`a few days of publication.
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`14. Authoritative databases such as Institute of Electrical and
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`Electronics Engineers (IEEE) Xplore® Digital Library, were used to confirm
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`citation details of the reference discussed in this declaration.
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`15. Attached hereto as Symantec Ex. 1004 is a true and correct copy
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`of A Sense of Self for Unix Processes, by Stephanie Forrest et al. (“Forrest”,)
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`000007
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`which appeared at pages 120-128 of the Proceedings of the 1996 IEEE
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`Symposium on Security and Privacy, May 6-8, 1996, Oakland, CA (the
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`“IEEE SOSP Proceedings,”) as can be seen from a printout from the (IEEE)
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`Xplore® Digital Library database, a true and correct copy of which is
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`attached hereto as Symantec Ex. 1008.
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`16. Attached hereto as Symantec Ex. 1009 is a true and correct copy
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`of the MARC record for the IEEE SOSP Proceedings. The MARC record at
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`Symantec Ex. 1009 was obtained from the OCLC Connexion database that is
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`maintained during the ordinary course of business, of which I personally
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`identified and located. The MARC record at Symantec Ex. 1009 is identified
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`as OCLC record number 34969890. As can be derived from Symantec Ex.
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`1009, OCLC record number 34969890 for the IEEE SOSP Proceedings was
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`first created on June 21,1996 by a cataloger at the National Security Agency.
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`17.
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`In view of the foregoing, the IEEE SOSP Proceedings, including
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`Forrest, would have been accessible to the public as of June 21,1996.
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`18. Attached hereto as Symantec Ex. 1005 is a true and correct copy
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`of Dynamic Detection and Classification of Computer Viruses Using
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`General Behavior Patterns, by Morton Swimmer (“Swimmer,”) which
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`appeared in the Proceedings of the Fifth Virus Bulletin International
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`Conference, September
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`20-22, Boston, MA (the
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`“Virus Bulletin
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`000008
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`
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`Proceedings,”) as can be seen from Symantec Ex. 1010, which is a true and
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`correct copy of the Virus Bulletin Proceedings.
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`19. Attached hereto as Symantec Ex. 1011 is a true and correct copy
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`of the MARC record for the Virus Bulletin Proceedings. The MARC record
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`at Symantec Ex. 1011 was obtained from the OCLC Connexion database that
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`is maintained during the ordinary course of business, of which I personally
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`identified and located. The MARC record at Symantec Ex. 1011 is identified
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`as OCLC record number 33834197. As can be derived from Symantec Ex.
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`1011, OCLC record number 33834197 for the Virus Bulletin Proceedings
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`was first created on December 1, 1995 by a cataloger at the University of
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`Washington Library.
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`20.
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`In view of the foregoing,
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`the Virus Bulleting Proceedings,
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`including Swimmer, would have been accessible to the public as of
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`December 1, 1995.
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`000009
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`[‘1\ U1 U.D. 1"c1L. IVU. O,U/ l,"|‘7’+
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`In signing this declaration, I recognize that the declaration will be filed as
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`evidence in a contested case before the Patent Trial and Appeal Board of the
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`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
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`place within the United States. If cross-examination is required of me, I will
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`appear for cross-examination within the United States during the time allotted
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`for cross-examination.
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`I hereby 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 7-/0 <'/.f
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`at-
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`000010
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`
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`Dr. Sylvia
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`all—Ellis
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`000010