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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`____________
`
`
`Unified Patents Inc.,
`Petitioner
`
`v.
`
`Bradium LLC
`Patent Owner
`
`IPR2018-00952
`U.S. Patent 9,253,239
`
`____________
`
`
`
`DECLARATION OF DR. SYLVIA D. HALL-ELLIS
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`
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`
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`I, Dr. Sylvia D. Hall-Ellis, declare as follows:
`
`
`I.
`
`INTRODUCTION
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`1. My name is Sylvia Hall-Ellis. I have been retained as an expert by
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`Unified Patents Inc. in connection with its petition for inter partes review of
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`United States Patent No. 9,253,239.
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`2.
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`I have written this report to provide my expert opinion regarding the
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`public availability of certain publications. My report sets forth my opinions in
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`detail and provides the basis for my opinions regarding the authenticity and public
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`availability of these publications. If called to testify in the above-captioned matter,
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`I will testify with regard to the opinions and bases set forth below.
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`3.
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`I reserve the right to supplement or amend my opinions, and bases for
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`them, in response to any opinions expressed by patentee’s experts, or in light of
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`any additional evidence, testimony, discovery, and/or argument advanced by
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`patentee, and/or other additional information that may be provided to me after the
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`date of this report. Additionally, I reserve the right to prepare any exhibits that will
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`be used to summarize or support my opinions, including demonstrative exhibits. I
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`reserve the right to create additional summaries, tutorials, demonstrations, charts,
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`drawings, tables, and/or animations that may be appropriate to supplement and
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`demonstrate my opinions.
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`
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`4.
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`I am being compensated for my time spent working on this matter at
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`my normal consulting rate of $300 per hour, plus reimbursement for any additional
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`reasonable expenses. My compensation is not in any way tied to the content of this
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`report, the substance of my opinions, or the outcome of the petition. I have no
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`other interests in this matter with any of the parties.
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`5.
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`Aside from the documents and references mentioned below, these are
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`the additional materials I have considered in forming the opinions expressed in this
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`report:
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`a. Webpages hosted at www.iec.ch;
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`b. Wayback Machine archives for www.iec.ch and www.dnp.org;
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`c. OCLC (www.worldcat.org);
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`d. Online catalogs at academic libraries (San José State University; Cal
`Tech University; University of California – Berkeley; University of
`Washington; University of Michigan; Georgia Tech; University of
`Wisconsin – Madison; Carnegie Mellon University; Cornell University;
`Stanford University; and University of Illinois at Urbana-Champaign).
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`II. QUALIFICATIONS
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`6.
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`I am currently an Adjunct Professor in the School of Information at
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`San José State University. I obtained a Masters of Library Science from the
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`University of North Texas in 1972 and a Ph.D. in Library Science from the
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`University of Pittsburgh in 1985. Over the last forty-five years, I have held various
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`positions in the field of library and information resources. I was first employed as
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`
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`
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`a librarian in 1966, and have been involved in the field of library sciences since,
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`holding numerous positions.
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`7.
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`I am a member of the American Library Association (ALA) and its
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`Association for Library Collections & Technical Services (ALCTS) Division, and I
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`served on the Committee on Cataloging: Resource and Description (which wrote
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`the new cataloging rules) and as the chair of the Committee for Education and
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`Training of Catalogers and the Competencies and Education for a Career in
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`Cataloging Interest Group. I also served as the Chair of the ALCTS Division’s
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`Task Force on Competencies and Education for a Career in Cataloging.
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`Additionally, I have served as the Chair for the ALA Office of Diversity’s
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`Committee on Diversity. Currently I serve as a member of the Editorial Board for
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`the ALCTS premier cataloging journal, Library Resources and Technical Services.
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`8.
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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 Machine-Readable Cataloging
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`(“MARC”) standards. My current research interests include library cataloging
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`systems, metadata, and organization of electronic resources. My full curriculum
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`vitae is attached hereto as Exhibit 1021. I have previously testified at deposition in
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`five cases: Apple Inc. v. Samsung Electronics Co., Ltd. et al., 5:12-cv-630-LHK
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`(N.D. Cal.), on behalf of Samsung Electronics Co., Ltd.; Hitachi Maxell, Ltd. v.
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`Top Victory Electronics Co., Ltd., 2:14-CV-1121 on behalf of Top Victory
`
`
`
`
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`Electronics Co. Ltd.; Symantec, Corp. v. Finjan, Inc., Petition for Inter Partes
`
`Review of U. S. Patent No. 6,154,844, on behalf of Symantec Corp.; Intellectual
`
`Venture I LLC v. ATT Mobility LLC et al., C.A. No. 12-193 (D. Del.) and related
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`cases, on behalf of AT&T Mobility LLC, AT&T Mobility II LLC, T-Mobile USA,
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`Inc., T-Mobile US, Inc., Sprint Spectrum L.P., and U.S. Cellular Corporation; and,
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`Symantec, Corp. v. Finjan, Inc., 14:cv-2998 (N.D. Cal.), on behalf of Symantec
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`Corp. I have never testified at trial as an expert.
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`III. LIBRARY CATALOGING PRACTICES
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`9.
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`I am fully familiar with the library cataloging standard known as the
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`MARC standard, which is an industry-wide standard method of storing and
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`organizing library catalog information.1 MARC was first developed in the 1960’s
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`by the Library of Congress. A MARC-compatible library is one that has a catalog
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`consisting of individual MARC records for each of its items. Today, MARC is the
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`primary communications protocol for the transfer and storage of bibliographic
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`metadata in libraries.2
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`
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`1 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliographic/.
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`2 Almost every major library in the world is MARC-compatible. See, e.g., MARC
`Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS,
`https://www.loc.gov/marc/faq.html (last visited March 10, 2018) (“MARC is the
`acronym for MAchine-Readable Cataloging. It defines a data format that emerged
`from a Library of Congress-led initiative that began nearly forty years ago. It
`provides the mechanism by which computers exchange, use, and interpret
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`
`
`
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`10. A MARC record comprises several fields, each of which contains
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`specific data about the work. Each field is identified by a standardized, unique,
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`three-digit code corresponding to the type of data that follow. For example, a
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`work’s title is recorded in field 245, the primary author of the work is recorded in
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`field 100, an item's International Standard Book Number (“ISBN”) is recorded in
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`field 020, an item’s Library of Congress call number is recorded in field 050, and
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`the publication date is recorded in field 260 under the subfield “c.” If a work is a
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`periodical, then its publication frequency is recorded in field 310, and the
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`publication dates (e.g., the first and last publication) are recorded in field 362,
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`which is also referred to as the enumeration/chronology field.
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`11. The library that created the record is recorded in field 040 in subfield
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`“a” with a unique library code. When viewing the MARC record online via Online
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`Computer Library Center’s (“OCLC”) Connexion database, hovering over this
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`code with the mouse reveals the full name of the library. I used this method of
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`“mousing over” the library codes in the OCLC database to identify the originating
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`library for all of the MARC records discussed in this report. Where this “mouse
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`over” option was not available, I consulted the Directory of OCLC Libraries in
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`
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`bibliographic information, and its data elements make up the foundation of most
`library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994 (reaffirmed
`2009) standard for Information Interchange Format.
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`
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`
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`order to identify the institution that created the MARC record.3
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`12. MARC records also include several fields that include subject matter
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`classification information. An overview of MARC record fields is available
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`through the Library of Congress at http://www.loc.gov/marc/bibliographic/. For
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`example, 6XX fields are termed “Subject Access Fields.” See
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`http://www.loc.gov/marc/bibliographic/bd6xx.html. Among these, for example, is
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`the 650 field; this is the “Subject Added Entry – Topical Term” field. See
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`http://www.loc.gov/marc/bibliographic/bd650.html. The 650 field is a “[s]ubject
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`added entry in which the entry element is a topical term.” Id. These entries “are
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`assigned to a bibliographic record to provide access according to generally
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`accepted thesaurus-building rules (e.g., Library of Congress Subject Headings
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`(LCSH), Medical Subject Headings (MeSH)).” Id. Further, MARC records
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`include call numbers, which themselves include a classification number. For
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`example, the 050 field is the “Library of Congress Call Number.” See
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`http://www.loc.gov/marc/bibliographic/bd050.html. A defined portion of the
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`Library of Congress Call Number is the classification number, and “source of the
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`classification number is Library of Congress Classification and the LC
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`Classification-Additions and Changes.” Id. Thus, included in the 050 field is a
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`
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`3 http://www.oclc.org/contacts/libraries.en.html.
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`
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`
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`subject matter classification. Each item in a library has a single classification
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`number. A library selects a classification scheme (e.g., the Library of Congress
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`Classification scheme just described or a similar scheme such as the Dewey
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`Decimal Classification scheme) and uses it consistently. When the Library of
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`Congress assigns the classification number, it appears as part of the 050 field. If a
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`local library assigns the classification number, it appears in a 090 field. In either
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`scenario, the MARC record includes a classification number that represents a
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`subject matter classification.
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`13. The 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 products
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`for the benefit of library users and libraries, including such objectives as increasing
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`availability of library resources to individual library patrons and reducing the rate
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`of rise of library per-unit costs, all for the fundamental public purpose of furthering
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`ease of access to and use of the ever-expanding body of worldwide scientific,
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`literary and educational knowledge and information.”4 Among other services,
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`OCLC and its members are responsible for maintaining the WorldCat database
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`
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`4 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`Library Center, Incorporated (available at http://www.oclc.org/en-
`US/councils/documents/amended_articles.html).
`
`
`
`
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`(http://www.worldcat.org/), used by independent and institutional libraries
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`throughout the world.
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`14. OCLC also provides its members online access to MARC records
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`through its OCLC Connexion database. When an OCLC member institution
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`acquires a work, it creates a MARC record for this work in its computer catalog
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`system in the ordinary course of its business. MARC records created at the Library
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`of Congress are tape-loaded into the OCLC database through a subscription to
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`MARC Distribution Services daily or weekly. Once the MARC record is created
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`by a cataloger at an OCLC member institution or is tape-loaded from the Library
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`of Congress, the MARC record is then made available to any other OCLC
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`members online, and therefore made available to the public. Accordingly, once the
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`MARC record is created by a cataloger at an OCLC member institution or is tape-
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`loaded from the Library of Congress or another library anywhere in the world, any
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`publication corresponding to the MARC record has been cataloged and indexed
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`according to its subject matter such that a person interested in that subject matter
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`could, with reasonable diligence, locate and access the publication through any
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`library with access to the OCLC Connexion database or through the Library of
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`Congress.
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`15. When an OCLC member institution creates a new MARC record,
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`OCLC automatically supplies the date of creation for that record in field 005. The
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`
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`
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`MARC record creation date reflects the date on which, or shortly after which, the
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`item was first acquired or cataloged. Initially, field 005 of the MARC record is
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`automatically populated with the date the MARC record was created in year,
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`month, day format (YYYYMMDD) (some of the newer library catalog systems
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`also include hour, minute, second (HHMMSS)). Thereafter, the library’s computer
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`system may automatically update the date in field 005 every time the library
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`updates the MARC record (e.g., to reflect that an item has been moved to a
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`different shelving location within the library). Field 005 is visible when viewing a
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`MARC record via an appropriate computerized interface, but when a MARC
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`record is printed to hardcopy, no “005” label appears. The initial field 005 date
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`(i.e., the date the MARC record was created) does appear, however, next to the
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`label “Entered.”5 The date upon which the most recent update to field 005
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`occurred also appears, next to the label “Replaced.” Thus, when an item’s MARC
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`record has been printed to hardcopy—as is the case with the exhibits to this
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`report—the date reflected next to the label “Entered” is necessarily on or after the
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`date the library first cataloged and indexed the underlying item.
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`16. Once one library has cataloged and indexed a publication by creating
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`a MARC record for that publication, other libraries that receive the publication do
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`
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`5 In this report, I sometimes refer to the “Entered” entry as field 008, characters
`00-05.
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`
`
`
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`not create additional MARC records—the other libraries instead rely on the
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`original MARC record. They may update or revise the MARC record to ensure
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`accuracy, but they do not replace or duplicate it. This practice does more than save
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`libraries from duplicating labor. It also enhances the accuracy of MARC records.
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`Further, it allows librarians around the world to know that a particular MARC
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`record is authoritative (in contrast, a hypothetical system wherein duplicative
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`records were created would result in confusion as to which record is authoritative).
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`17. Catalogers can create MARC records for all types of print, online, and
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`digital resources. For example, MARC records cover serial publications, including
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`both serially-published monographs and journals. OCLC hosts MARC records for
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`more than 320 million serial publications. Serial publications are those
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`publications that have the same collective title but are intended to be continued
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`indefinitely with enumeration such as a volume or issue number (e.g., magazines,
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`journals, etc.). In the OCLC Connexion database, the first issue of the serial
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`publication is typically cataloged (i.e., a corresponding MARC record is created),
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`but the date is left open-ended with the use of a punctuation mark such as a dash.
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`OCLC serial publication MARC records represent the entire run of the serial title.
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`With knowledge of the first issue published, future issues can be predicted based
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`on the information provided in the MARC record, for example in field 362. In my
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`extensive professional experience, is it highly unusual for a library to stop
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`
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`
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`collecting and shelving a serial publication prior to the end of its publication run.
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`If a subscription to a serial publication ends its run or is cancelled before the end of
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`its run, the library will denote that it has stopped receiving new volumes by filling
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`in the end date in the MARC record.
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`18. When individual issues of a serial publication are received by a
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`library, the individual issue is indexed, added to library holdings records, and made
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`available for library visitors. Typically, individual issues are available within a
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`few days of receipt by the library—or at most a few weeks. Typically, academic
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`libraries use property and date stamps to mark the receipt of a new journal issue.
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`The issue is checked in and then processed so that it can be placed out in a public
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`area for patrons. The foregoing process has been standard library practice longer
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`than I have been working in the profession. I first learned the steps in the process
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`in the late 1970s and later supervised it. Although the checking in process has
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`become automated and now links electronically to holdings records for the MARC
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`record for each serial title, the manual stamping and placing the issue in a public
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`area has not changed for 50 years. Unless I note otherwise below in reference to a
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`specific serial publication, it is my expert opinion that this standard protocol was
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`followed for each of the serial publications discussed below.
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`19. The handling of printed journal subscriptions is shown on the covers
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`of individual issues. As typical practice among libraries, issues arrive at a central
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`
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`facility and are immediately received, verified as part of a subscription, checked in,
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`and stamped with the institution’s name and date. Determining that the issue is
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`part of the library subscription allows the library to ensure that the entire set of
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`publications for the year has been received so that they can be professionally
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`bound and retained. This process verifies that all published issues have arrived so
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`that the library staff knows whether it must request or claim an issue that did not
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`arrive as expected. In large public libraries with branches and multi-campus
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`libraries within academic institutions, the journals are sorted and delivered to the
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`subscribing unit. The issues are frequently stamped again to acknowledge receipt.
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`The new issue is then placed in the public area; the older issue is stored so that it
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`remains available. In my experience, this process occurs quickly. Not only is
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`there a short window to notify a publisher of a defective issue or non-receipt, there
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`are often patrons waiting for a new issue of a particular journal. A rule of thumb
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`that I have used is to get the new issue processed and available in a public area
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`within three days or sooner based on staffing and the volume of materials received.
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`Unless I note otherwise below in reference to a specific serial publication, it is my
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`expert opinion that this standard protocol was followed for each of the serial
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`publications discussed below.
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`20. Upwards of two-thirds to three-quarters of book sales to libraries
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`come from a jobber or wholesaler for online and print resources. These resellers
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`
`
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`make it their business to provide books to their customers as fast as possible, often
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`providing turnaround times of only a single day after publication. Libraries
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`purchase a significant portion of the balance of their books directly from publishers
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`themselves, which provide delivery on a similarly expedited schedule. In general,
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`libraries make these purchases throughout the year as the books are published and
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`shelve the books as soon thereafter as possible in order to make the books available
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`to their patrons. Thus, books are generally available at libraries across the country
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`within just a few days of publication.
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`21.
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`In preparing this report, I used authoritative databases, such as the
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`OCLC Connexion database and the Library of Congress Online Catalog, to
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`confirm citation details of the various publications discussed.
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`IV. LEGAL STANDARDS
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`22.
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`I am not an attorney and will not offer opinions on the law. I do,
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`however, have an understanding of several principles concerning the public
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`accessibility of printed publications that have guided me in arriving at my stated
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`conclusions in this report.
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`23.
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`I understand that a printed publication qualifies as “publicly
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`accessible” as of the date it was disseminated or otherwise made available such
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`that a person interested in and ordinarily skilled in the relevant subject matter could
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`locate it through the exercise of ordinary diligence.
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`
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`
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`24. While I understand that the determination of public accessibility under
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`the foregoing standard rests on a case-by-case analysis of the facts particular to an
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`individual publication, I also understand that a printed publication is rendered
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`“publicly accessible” if it is cataloged and indexed by a library such that a person
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`interested in the relevant subject matter could locate it (i.e., I understand that
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`cataloging and indexing by a library is sufficient, though there are other ways that
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`a printed publication may qualify as “publicly accessible”). One manner of
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`sufficient indexing is indexing according to subject matter category. I understand
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`that it is not necessary to prove someone actually looked at a printed publication in
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`order to show it was publicly accessible by virtue of a library’s cataloging and
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`indexing thereof. I understand that the cataloging and indexing by a single library
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`of a single instance of a particular printed publication is sufficient, even if the
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`single library is in a foreign country. I understand that, even if access to a library
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`is restricted, a printed publication that has been cataloged and indexed therein is
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`publicly accessible so long as a presumption is raised that the portion of the public
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`concerned with the relevant subject matter would know of the printed publication.
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`I also understand that the cataloging and indexing of information that would guide
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`a person interested in the relevant subject matter to the printed publication, such as
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`the cataloging and indexing of an abstract for the printed publication, is sufficient
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`to render the printed publication publicly accessible.
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`
`
`
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`25.
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`I understand that evidence showing the specific date when a printed
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`publication became publicly accessible is not necessary. Rather, routine business
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`practices, such as general library cataloging and indexing practices, can be used to
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`establish an approximate date on which a printed publication became publicly
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`accessible.
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`V.
`
`IDENTIFIED PUBLICATION
`
`A. Exhibit 1004
`
`a.
`
`Exhibit 1004 is a copy of Volume 19, Number 2 of the IEEE
`
`Computer Graphics and Applications journal found in the Gemmill Library of
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`Engineering, Mathematics, and Physics at the University of Colorado – Boulder.
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`The article “TerraVision II: Visualizing Massive Terrain Databases in VRML” by
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`Martin Reddy, Yvan Leclerc, Lee Iverson, and Nat Bletter (hereinafter called
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`“Reddy”) appears on pages 30-38 of this issue dated March/April 1999. The
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`exhibit filed in this proceeding as Exhibit 1004 is a true and correct copy of the
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`issue cover, table of contents, and the article. I obtained this copy of the article
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`comprising Exhibit 1004 from the Gemmill Library of Engineering, Mathematics,
`
`and Physics at the University of Colorado – Boulder. Specifically, the text of the
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`article is complete; no pages are missing, and the text on each page appears to flow
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`seamlessly from one page to the next; further, there are no visible alterations to the
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`document. Exhibit 1004 was found within the custody of a library – a place where,
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`
`
`
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`if authentic, a copy of this journal would likely be. Exhibit 1004 is a true and
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`correct copy in a condition that creates no suspicion about its authenticity.
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`b.
`
`Based on finding a print copy of Exhibit 1004 in the Gemmill Library
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`of Engineering, Mathematics, and Physics at the University of Colorado – Boulder
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`and a record in its online library catalog attached as Attachment 1a, it is my
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`opinion that “TerraVision II: Visualizing Massive Terrain Databases in VRML” by
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`Martin Reddy et. al. published in the IEEE Computer Graphics and Applications
`
`journal was available from the Gemmill Library of Engineering, Mathematics, and
`
`Physics at the University of Colorado – Boulder.
`
`c.
`
`Exhibit 1004 has a receipt label affixed to the issue cover at the
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`Gemmill Library of Engineering, Mathematics, and Physics at the University of
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`Colorado – Boulder which indicates that the March/April 1999, issue arrived on
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`February 24, 1999. As noted in the 362 field, the Gemmill Library of Engineering,
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`Mathematics, and Physics at the University of Colorado – Boulder received the
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`print version of the IEEE Computer Graphics and Applications journal from 1981
`
`until 2001, and continues to receive the journal digitally. In view of the MARC
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`record for Exhibit 1004, the Reddy article was publicly available no later than
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`February 24, 1999, because the serial title had been cataloged and indexed in the
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`Gemmill Library of Engineering, Mathematics, and Physics at the University of
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`Colorado – Boulder and made part of its online catalog database.
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`
`
`
`
`d.
`
`Attached hereto as Attachment 1b is a true and correct copy of the
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`MARC record for the IEEE Computer Graphics and Applications journal obtained
`
`from the OCLC Connexion database. As previously noted, the library that created
`
`the record is recorded in field 040 with a unique library code. For Exhibit 1004,
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`that library code is “NSD,” which means that the MARC record for this serial was
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`cataloged as part of the National Serials Data Program at the Library of Congress.
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`As can be seen in the “Entered” field in MARC record for this exhibit, a cataloger
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`created OCLC record number 6794952 on October 6, 1980. The “BLvl” entry in
`
`Attachment 1b is “s,” which indicates that the IEEE Computer Graphics and
`
`Applications journal is a serial publication. Field 310 of Attachment 1b reads
`
`“Bimonthly, since 1989.” Accordingly, the MARC record for Exhibit 1004
`
`corresponds to those issues of the IEEE Computer Graphics and Applications from
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`1989 to the present day. Attachment 1b further includes an entry in field 050
`
`(“T385 ‡b .I18”)—as described above, this includes a subject matter classification
`
`number consistent with the Library of Congress classification system (analogous to
`
`the Dewey Decimal System). Attachment 1b further includes an entry in field 082
`
`(“001.6443”), a subject matter consistent with the Dewey Decimal System.
`
`Attachment 1b further includes an English language field 650 entry reading
`
`“Computer graphics ‡v Periodicals.” Thus, as of its cataloging, the publication
`
`corresponding to the MARC record attached hereto as Attachment 1b was indexed
`
`
`
`
`
`according to its subject matter by virtue of at least three independently sufficient
`
`classifications: the field 050 entry, the field 082 entry, and the field 650 entry.
`
`Further, as of October 6, 1980, the MARC record attached hereto as Attachment 1b
`
`was accessible through any library with access to the OCLC Connexion database
`
`or the online catalog at a library regularly subscribed to this serial, which means
`
`that the corresponding publication was publicly available on or before that same
`
`date through any library with access to the OCLC Connexion database or through
`
`an individual library.
`
`e.
`
`Attachment 1b indicates that the IEEE Computer Graphics and
`
`Applications journal as cataloged at the Library of Congress is currently available
`
`from 595 libraries. In view of Attachment 1b, this issue of the IEEE Computer
`
`Graphics and Applications journal was publicly available no later than February
`
`24, 1999, because by that date it had been cataloged and indexed at the Library of
`
`Congress, made part of the OCLC Connexion database, and received at the
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`Gemmill Library of Engineering, Mathematics, and Physics at the University of
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`Colorado – Boulder For these reasons, I find that Exhibit 1004 published and was
`
`accessible to the public no later than February 24, 1999.
`
`VI. CONCLUDING STATEMENTS
`
`72.
`
`In signing this declaration, I understand that the declaration will be
`
`filed as evidence in a contested case before the Patent Trial and Appeal Board of
`
`
`
`
`
`the United States Patent and Trademark Office. I acknowledge that I may be
`
`subject to cross-examination in this case and that cross-examination will take place
`
`at an agreed location within the United States. If cross-examinationis required of
`me, I will appear for cross-examination at ain agreed location within the United
`
`States during the timeallotted for cross-examination.
`
`27.
`
`I declare that all statements made herein of my knowledgeare true,
`
`and that all statements made on information and beliefare believedto be true, and
`
`that these statements were made with the knowledge that willful false statements
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`and the like so madeare punishable byfine or imprisonment, or both, under
`
`Section 1001 of Title 18 of the United States Code.
`
` DATED: April 18, 2018
`By: Dr. Sylva D. Hall-Ellis
`
`
`
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`d DLC ‡d OCL ‡d NSD ‡d NST ‡d OCL ‡d NSD ‡d NST ‡d OCL ‡d NSD ‡d NST ‡
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`d AIP ‡d NST ‡d AIP ‡d NST‡d IUL ‡d NST ‡d IUL ‡d NST ‡d OCL ‡d NST ‡d MYG ‡
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`d LVB ‡d CIT ‡d OCLCQ ‡d UKMGB ‡d OCLCQ ‡dOCLCF ‡d OCLCO ‡d OCLCQ ‡
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`d OCLCO ‡d AVA ‡d OCLCO ‡d OCLCA
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` 032 574590 ‡b USPS
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` 037 ‡b IEEE Computer Society, 10662 Los Vaqueros Circle, Los Alamitos, CA 90720-
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`2578
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` 246 3_ In