`United States Patent No. 7,868,912
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`Axis Communications AB, Canon Inc., and Canon U.S.A., Inc.,
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`Petitioner
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`v.
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`Avigilon Fortress Corporation,
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`Patent Owner
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`Cases: IPR2019-00235 & IPR2019-00236
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`U.S. Patent No. 7,868,912
`Issue Date: January 11, 2011
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`Title: Video Surveillance System Employing Video Primitives
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`DECLARATION OF EMILY R. FLORIO
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`I, Emily R. Florio, state and declare as follows:
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`1.
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`I have prepared this Declaration in connection with the Petitions of
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`Axis Communications AB, Canon Inc., and Canon U.S.A., Inc. (collectively
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`“Petitioner”) for two inter partes reviews of U.S. Patent No. 7,868,912 (“the ’912
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`patent”), Case Nos. IPR2019-00235 and IPR2019-00236, which I understand will
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`be filed concurrently with this Declaration.
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`2.
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`I am currently the Director of Research & Information Services at
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`Finnegan, Henderson, Farabow, Garrett & Dunner LLP, 901 New York Avenue
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`NW, Washington, DC 20001-4413.
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`3.
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`I am over 18 years of age and am competent to make this Declaration.
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`I make this Declaration based on my own personal knowledge, based on my
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`knowledge of library science practices, as well as my knowledge of the practices at
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`the Massachusetts Institute of Technology (“MIT”) Libraries.
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`4.
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`I earned a Master’s of Library Science (“MLS”) from Simmons
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`College in 2006, and I have worked as a librarian for over a decade. I have been
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`employed in the Research & Information Services (formerly Library) Department
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`of Finnegan since 2013, and from 2005-2013, I worked in the Library Department
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`of Fish & Richardson P.C.
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`2
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`I am currently the Vice-President Elect of the American Association
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`5.
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`of Law Libraries and the President of the Law Librarians’ Society of Washington,
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`DC, and a member of the International Legal Technology Association.
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`Attachments
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`6.
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`Attached as Exhibit A (Exhibit 1003 to the Petition in IPR2019-
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`00235) is a true and correct copy of “Visual Memory,” May 1993, pp. 1-92, by
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`Christopher James Kellogg (“Kellogg”), obtained from the MIT Libraries.
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`7.
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`Attached as Exhibit B is a true and correct copy of the “Standard”
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`record from the MIT Libraries’ catalog system (known as the Barton Catalog) for
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`its copy of Kellogg.
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`8.
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`Attached as Exhibit C is a true and correct copy of the MARC record
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`of the MIT Libraries for its copy of Kellogg.
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`9.
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`Attached as Exhibit D (Exhibit 1005 to the Petition in IPR2019-
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`00235) is a true and accurate copy of B. Flinchbaugh et al., “Autonomous Video
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`Surveillance,” SPIEScene Monitoring System,” Proceedings, 25th AIPR
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`Workshop: Emerging Applications of Computer Vision, Feb. 26, 1997, Vol. 2962,
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`p. 144-15110th Annual Joint Government-Industry Security Technology
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`Symposium & Exhibition, June 20-23, 1994, pp. 205-209 (“Flinchbaugh”),
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`obtained from the MIT Libraries. British Library.
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`10. Attached as Exhibit E is a true and correct copy of the MARC record
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`of the British Library of Congress for its copy of the SPIE Proceedings publication
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`that includes Flinchbaugh.
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`11. Attached as Exhibit F is a true and correct copy of the MARC record
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`of the MIT Libraries for its copy of the SPIE Proceedings publication that includes
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`Flinchbaugh.
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`11. Attached as Exhibit F are documents further showing the public
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`availability of Flinchbaugh. Exhibit F-1 is a true and correct copy of U.S. Patent
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`No. 7,023,469 (the ’469 Patent), and the list of references filed by the applicant of
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`the ’469 Patent with its filing on April 15, 1999, obtained from the U.S. Patent and
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`Trademark Office’s PAIR files. Exhibit F-2 is a true and correct copy of R.
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`Collins et al., “A System for Video Surveillance and Monitoring,” Robotics
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`Institute, Carnegie Mellon University, Pittsburgh, PA (“Collins”) and information
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`concerning this 1999 publication available at https://www.semanticscholar.org.
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`12. Attached as Exhibit G (Exhibit 1004 in each Petition in IPR2019-
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`00235 and IPR2019-00236) is a true and correct copy of. Brill et al., “Event
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`Recognition and Reliability Improvements for the Autonomous Video Surveillance
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`System,” Proceedings of the Image Understanding Workshop, Monterey, CA, Nov.
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`20-23, 1998, Vol. 1, pp. 267-283 (“Brill”), obtained from the Duderstadt Center,
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`formerly known as the University of Michigan Media Union (UMMU).
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`13. Attached as Exhibit H is a true and correct copy of the MARC record
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`of the University of Virginia Library for its copy of Brill.
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`14. Attached as Exhibit I is a true and correct copy of the MARC record
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`of the North Carolina State University library for its copy of Brill.
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`The MARC Cataloging System
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`15. The MAchine-Readable Cataloging (“MARC”) system is used by
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`libraries to catalog materials. The MARC system was developed in the 1960s to
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`standardize bibliographic records so they could be read by computers and shared
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`among libraries. By the mid-1970’s, MARC had become the international standard
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`for bibliographic data, and it is still used today.
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`16. Each field in a MARC record provides information about the
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`cataloged item. MARC uses a simple three-digit numeric code (from 001-999) to
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`identify each field in the record.
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`17. For example, field 245 lists the title of the work and field 260 lists
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`publisher information. In addition, field 008 provides the date the item was
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`cataloged. The first six characters of the field 008 are always in the “YYMMDD”
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`format.
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`18.
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`It is standard library practice that once an item is cataloged using the
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`MARC system, it is shelved. This process may take a relatively nominal amount
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`of time (i.e., a few days or weeks). During the time between the cataloging and
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`shelving of an item, the public may still find the item by searching the catalog and
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`requesting the item from the library.
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`Kellogg
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`19. As indicated in Exhibit A (Exhibit 1003 to the Petition in IPR2019-
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`00235), Kellogg has an MIT Libraries date stamp of “JUL 09 1993” on page 1,
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`indicating that the MIT Libraries received Kellogg on July 9, 1993. Further, as
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`indicated in Exhibit B, the Standard record of the Barton Catalog confirms that
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`Kellogg is shelved at the MIT Libraries and was published in 1993. In view of the
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`above and the following, Kellogg was published and accessible to the public in
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`1993, years before October 1999.
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`20. As indicated in Exhibit C, Kellogg has a cataloging date of September
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`28, 1993 (shown as “930928” in field 008). This confirms that Kellogg was
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`entered into the OCLC database, in which MIT does its cataloging, on September
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`28, 1993. This is also consistent with its noted year of publication in the MARC
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`record (shown as “1993” in field 260). The OCLC database (also referred to as
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`“WorldCat”) is the largest online public access catalog (OPAC) in the world.
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`21. Soon after Kellogg received a cataloging date, a record of its existence
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`would have appeared in and been keyword-searchable through the Barton Catalog
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`of the MIT Libraries. The Barton Catalog is currently available online to any user
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`of the World Wide Web. Before it was accessible by Web (i.e., at the time the
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`Kellogg thesis was received by the MIT Libraries in July 1993), it would have been
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`accessible to anyone on the MIT campus and anyone who had access to the OCLC
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`database.
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`22. During the time period from September 1993 through October 1999,
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`the Barton Catalog allowed keyword searching for words in the thesis title, and
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`Kellogg would have appeared in a relevant Barton Catalog search conducted on or
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`shortly after September 28, 1993.
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`23. After being cataloged, a document such as Kellogg will undergo a
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`process of being labeled and then shelved at the MIT Libraries. Based on my
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`knowledge of MIT Libraries’ current and prior practices, Kellogg would have been
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`shelved in a relatively nominal amount of time (i.e., a few days or weeks). Thus,
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`Kellogg was cataloged and shelved at the MIT Libraries at least before the end of
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`1993.
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`24. Once shelved, Kellogg can be borrowed by any member of the MIT
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`community. Furthermore, a copy of Kellogg can be purchased from MIT by any
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`member of the public. Indeed, the first page of Kellogg confirms that there were
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`no restrictions placed on its publication, as it states that “[t]he author hereby grants
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`to MIT permission to reproduce and to distribute copies of this thesis document in
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`whole or in part, and to grant others the right to do so.”
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`25. Further evidence of the public availability of Kellogg before October
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`1999 is provided in Exhibit D, which is a copy of Flinchbaugh. In its
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`Bibliography“References” section, Flinchbaugh cites to Kellogg (reference [41] on
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`p. 151).209). It also states that Kellogg is available as a Technical Report, CSL-
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`93-05-20, from Texas Instruments. As addressed below, Flinchbaugh was
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`published in SPIE Volume 2962, which corresponds to the Proceedings from the
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`25th10th Annual AIPR Workshop on Emerging Applications of Computer
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`Vision.Joint Government-Industry Security Technology Symposium and
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`Exhibition. The WorkshopSymposium was held October 16-18, 1996June 20-23,
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`1994, and the Proceedings were published by at least 1997. Thus, Kellogg was at
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`least available to members of the public in 1997, as shown by its citation in
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`Flinchbaugh.
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`26. For the avoidance of any doubt, I note that on June 23, 2001, Kellogg
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`was also cataloged in the MIT Archive Noncirculating Collection 1,
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`Noncirculating Collection 3, and in microfiche form in the Barker Library, as
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`indicated in the three entries for PST8 and in the second, third, and fourth instances
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`of field 008 on page 1 of Exhibit C. However, none of this alters the fact that
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`Kellogg was published and accessible to the public in 1993, as indicated above.
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`Flinchbaugh
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`27. As indicated in Exhibit D, Flinchbaugh (Exhibit 1005 to the Petition
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`in IPR2019-00235) was published in the Proceedings of the 25th AIPR Workshop:
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`Emerging Applications of Computer Vision, SPIE Vol. 2962. 10th Annual Joint
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`Government-Industry Security Technology Symposium and Exhibition. The
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`WorkshopSymposium was held in Washington, D.C.Williamsburg, VA during
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`October 16-18, 1996June 20-23, 1994, and the Proceedings was published by SPIE
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`(The International Society for Optical Engineering). the American Defense
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`Preparedness Association. Ex. D at 1. In view of the above and the following,
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`Flinchbaugh was published and accessible to the public before October 1999.
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`28. Page 2 of Exhibit D shows a copyright date of 1997. The edition of
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`the SPIE Proceedings that was published with Flinchbaugh is Volume 2962, and it
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`was “Printed in the United States of America.” Ex. D at 2.
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`29.28. Although the copyright date of Flinchbaugh is listed as 1997, it
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`appears that Flinchbaugh was actually published before that, in 1996. First, as
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`noted above, the WorkshopSymposium was held in Washington,
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`D.C.Williamsburg, VA during October 16-18, 1996. June 20-23, 1994. Second, a
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`copy of Flinchbaugh was received and cataloged by the British Library of
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`Congress in November 1996. February 1997. See Ex. E at 1. Exhibit E is the
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`MARC record for the SPIE Proceedings, including Flinchbaugh, that was obtained
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`from the British Library of Congress. . As shown in field 008 near the top of on
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`page 21 of Exhibit E, Flinchbaugh was cataloged by the library on November 21,
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`1996. February 17, 1997 (shown as 970217 in field 008). Based on standard library
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`practices, this reference would have been shelved shortly after it was cataloged
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`(i.e., within a few days or weeks). The above is corroborated by the dates stamped
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`on the cover of the Proceedings, including the “12 Feb 1997” date at the top of the
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`page indicating that it was received into the British Library’s “serials file” and the
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`“17 Feb 1997” date on the middle-left side of the page indicating “conference
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`indexed.” Ex. D at 1. Field 85241, subfield j of Exhibit E also has the number
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`1086.803000, which matches the stamp in the upper right corner of Flinchbaugh.
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`Collectively, Exhibits D and E show that Flinchbaugh was published and
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`accessible to the public years before October 1999.
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`30.29. Further evidence of the publication and public availability of
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`Flinchbaugh can be found in Exhibit F, which is the MARC record for the SPIE
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`Proceedings, including Flinchbaugh, that was obtained from the MIT Libraries.
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`As shown in field 008 on page 1 of Exhibit F, Flinchbaugh was cataloged by the
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`library on March 10, 1997. Based on standard library practices and my
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`understanding of the practices of the MIT Libraries, this reference would have
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`been shelved shortly after it was cataloged (i.e., within a few days or weeks) and
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`accessible to the public before October 1999.. For example, Exhibit F-1 is a copy
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`of the ’469 Patent, which lists Thomas J. Olson as the inventor and shows that
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`Flinchbaugh was cited to the Patent Office. See Ex. F-1 at 1-2. Based on the Patent
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`Office’s prosecution file of the ’469 Patent, Flinchbaugh was cited by the applicant
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`with the filing of the application on April 15, 1999, more than a year before the
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`earliest possible filing date of the ’912 Patent. Ex. F-1 at 20.
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`30. For the avoidance of any doubt, I note that on April 8, 2011, online
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`access to Flinchbaugh was provided to certain MIT-associated individuals, as
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`indicated by the fields 008 and 8528 and the URL entry at the top of page 2 of
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`Exhibit F. Also, on June 23, 2001, the SPIE Proceedings, including Flinchbaugh,
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`was archived at the MIT Library Storage Annex (“LSA”), as indicated by the
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`second 008 field and subsequent 8520 entry on page 2 of Exhibit F. As further
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`evidence of the publication and public availability of Flinchbaugh, Exhibit F-2 is a
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`copy of Collins, which is co-authored by one of the inventors of the ’912 Patent,
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`Alan J. Lipton. Ex. F-2 at 1. As part of the “References” section in Collins,
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`Flinchbaugh is listed and Collins states that Flinchbaugh was published in “June
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`1994.” Ex. F-2 at 15.
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`31. For the avoidance of any doubt, I note that Collins itself was
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`published in 1999 and is a highly cited paper. For example, as indicated on the
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`website “www.semanticscholar.org,” Collins was published in “1999” and is a
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`highly cited paper, having “1,676 citations.” See Ex. F-2 at 16. However, none of
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`this alters the fact that Flinchbaugh was published and accessible to the public
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`years before October 1999, as indicated above.
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`Brill
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`32. As indicated in Exhibit G, Brill (Exhibit 1004 to each Petition in
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`IPR2019-00235 and IPR2019-00236) is part of the published Proceedings of the
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`1998 Image Understanding Workshop. The Workshop was held in Monterey,
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`California during November 20-23, 1998, and the Proceedings were “APPROVED
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`FOR PUBLIC RELEASE” with “DISTRIBUTION UNLIMITED.” Ex. G at 1. In
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`view of the above and the following, the Proceedings, including Brill, was
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`published and accessible to the public before October 1999.
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`33. Evidence of Brill’s publication and availability to the public includes
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`the hand-written receipt date of “8-13-99” at the top of page 3 of Exhibit G. This
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`indicates it was received by the UMMU (the University of Michigan Media Union,
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`now known as the Duderstadt Center) on August 13, 1999. In my experience as a
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`librarian and knowledge of standard library practices, the hand-written information
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`at the top of p. 2 of Exhibit G appears to be the catalog record information for
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`Brill. Based on standard library practices, this reference would have been shelved
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`shortly after being received and cataloged by UMMU.
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`34. Further evidence of the publication and accessibility of Brill to the
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`public can be found in Exhibit H, which is the MARC record for the Proceedings,
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`including Brill, that was obtained from the University of Virginia Library. As
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`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
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`shown in field 008 near the top of page 2 of Exhibit H, Brill was cataloged by the
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`library on December 15, 1998. Based on standard library practices, this reference
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`would have been shelved shortly after (i.e., within a few days or weeks) and been
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`accessible to the public prior to October 1999.
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`35. Further evidence of the publication and public availability of Brill can
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`be found in Exhibit I, which is the MARC record for the Proceedings, including
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`Brill, that was obtained from North Carolina State University. As shown in field
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`008 on page 1 of Exhibit I, Brill was cataloged by the library on December 15,
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`1998. Based on standard library practices, this reference would have been shelved
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`shortly after (i.e., within a few days or weeks) and been accessible to the public
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`prior to October 1999.
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` declare under penalty of perjury that the foregoing is true and correct.
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` I
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`Executed on November 9, 2018April 1, 2019 in Washington, D.C.
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`____________________________________
`Emily R. Florio
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`13
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