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Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`——————————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`——————————
`
`Axis Communications AB, Canon Inc., and Canon U.S.A., Inc.,
`
`Petitioner
`
`v.
`
`Avigilon Fortress Corporation,
`
`Patent Owner
`——————————
`Cases: IPR2019-00235 & IPR2019-00236
`
`U.S. Patent No. 7,868,912
`Issue Date: January 11, 2011
`
`Title: Video Surveillance System Employing Video Primitives
`——————————
`
`DECLARATION OF EMILY R. FLORIO
`
`
`

`

`I, Emily R. Florio, state and declare as follows:
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`1.
`
`I have prepared this Declaration in connection with the Petitions of
`
`Axis Communications AB, Canon Inc., and Canon U.S.A., Inc. (collectively
`
`“Petitioner”) for two inter partes reviews of U.S. Patent No. 7,868,912 (“the ’912
`
`patent”), Case Nos. IPR2019-00235 and IPR2019-00236, which I understand will
`
`be filed concurrently with this Declaration.
`
`2.
`
`I am currently the Director of Research & Information Services at
`
`Finnegan, Henderson, Farabow, Garrett & Dunner LLP, 901 New York Avenue
`
`NW, Washington, DC 20001-4413.
`
`3.
`
`I am over 18 years of age and am competent to make this Declaration.
`
`I make this Declaration based on my own personal knowledge, based on my
`
`knowledge of library science practices, as well as my knowledge of the practices at
`
`the Massachusetts Institute of Technology (“MIT”) Libraries.
`
`4.
`
`I earned a Master’s of Library Science (“MLS”) from Simmons
`
`College in 2006, and I have worked as a librarian for over a decade. I have been
`
`employed in the Research & Information Services (formerly Library) Department
`
`of Finnegan since 2013, and from 2005-2013, I worked in the Library Department
`
`of Fish & Richardson P.C.
`
`
`
`2
`
`

`

`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`I am currently the Vice-President Elect of the American Association
`
`5.
`
`of Law Libraries and the President of the Law Librarians’ Society of Washington,
`
`DC, and a member of the International Legal Technology Association.
`
`Attachments
`
`6.
`
`Attached as Exhibit A (Exhibit 1003 to the Petition in IPR2019-
`
`00235) is a true and correct copy of “Visual Memory,” May 1993, pp. 1-92, by
`
`Christopher James Kellogg (“Kellogg”), obtained from the MIT Libraries.
`
`7.
`
`Attached as Exhibit B is a true and correct copy of the “Standard”
`
`record from the MIT Libraries’ catalog system (known as the Barton Catalog) for
`
`its copy of Kellogg.
`
`8.
`
`Attached as Exhibit C is a true and correct copy of the MARC record
`
`of the MIT Libraries for its copy of Kellogg.
`
`9.
`
`Attached as Exhibit D (Exhibit 1005 to the Petition in IPR2019-
`
`00235) is a true and accurate copy of B. Flinchbaugh et al., “Autonomous Video
`
`Surveillance,” SPIEScene Monitoring System,” Proceedings, 25th AIPR
`
`Workshop: Emerging Applications of Computer Vision, Feb. 26, 1997, Vol. 2962,
`
`p. 144-15110th Annual Joint Government-Industry Security Technology
`
`Symposium & Exhibition, June 20-23, 1994, pp. 205-209 (“Flinchbaugh”),
`
`obtained from the MIT Libraries. British Library.
`
`
`
`3
`
`

`

`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`10. Attached as Exhibit E is a true and correct copy of the MARC record
`
`of the British Library of Congress for its copy of the SPIE Proceedings publication
`
`that includes Flinchbaugh.
`
`11. Attached as Exhibit F is a true and correct copy of the MARC record
`
`of the MIT Libraries for its copy of the SPIE Proceedings publication that includes
`
`Flinchbaugh.
`
`11. Attached as Exhibit F are documents further showing the public
`
`availability of Flinchbaugh. Exhibit F-1 is a true and correct copy of U.S. Patent
`
`No. 7,023,469 (the ’469 Patent), and the list of references filed by the applicant of
`
`the ’469 Patent with its filing on April 15, 1999, obtained from the U.S. Patent and
`
`Trademark Office’s PAIR files. Exhibit F-2 is a true and correct copy of R.
`
`Collins et al., “A System for Video Surveillance and Monitoring,” Robotics
`
`Institute, Carnegie Mellon University, Pittsburgh, PA (“Collins”) and information
`
`concerning this 1999 publication available at https://www.semanticscholar.org.
`
`12. Attached as Exhibit G (Exhibit 1004 in each Petition in IPR2019-
`
`00235 and IPR2019-00236) is a true and correct copy of. Brill et al., “Event
`
`Recognition and Reliability Improvements for the Autonomous Video Surveillance
`
`System,” Proceedings of the Image Understanding Workshop, Monterey, CA, Nov.
`
`20-23, 1998, Vol. 1, pp. 267-283 (“Brill”), obtained from the Duderstadt Center,
`
`formerly known as the University of Michigan Media Union (UMMU).
`
`
`
`4
`
`

`

`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`13. Attached as Exhibit H is a true and correct copy of the MARC record
`
`of the University of Virginia Library for its copy of Brill.
`
`14. Attached as Exhibit I is a true and correct copy of the MARC record
`
`of the North Carolina State University library for its copy of Brill.
`
`The MARC Cataloging System
`
`15. The MAchine-Readable Cataloging (“MARC”) system is used by
`
`libraries to catalog materials. The MARC system was developed in the 1960s to
`
`standardize bibliographic records so they could be read by computers and shared
`
`among libraries. By the mid-1970’s, MARC had become the international standard
`
`for bibliographic data, and it is still used today.
`
`16. Each field in a MARC record provides information about the
`
`cataloged item. MARC uses a simple three-digit numeric code (from 001-999) to
`
`identify each field in the record.
`
`17. For example, field 245 lists the title of the work and field 260 lists
`
`publisher information. In addition, field 008 provides the date the item was
`
`cataloged. The first six characters of the field 008 are always in the “YYMMDD”
`
`format.
`
`18.
`
`It is standard library practice that once an item is cataloged using the
`
`MARC system, it is shelved. This process may take a relatively nominal amount
`
`of time (i.e., a few days or weeks). During the time between the cataloging and
`
`
`
`5
`
`

`

`shelving of an item, the public may still find the item by searching the catalog and
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`requesting the item from the library.
`
`Kellogg
`
`19. As indicated in Exhibit A (Exhibit 1003 to the Petition in IPR2019-
`
`00235), Kellogg has an MIT Libraries date stamp of “JUL 09 1993” on page 1,
`
`indicating that the MIT Libraries received Kellogg on July 9, 1993. Further, as
`
`indicated in Exhibit B, the Standard record of the Barton Catalog confirms that
`
`Kellogg is shelved at the MIT Libraries and was published in 1993. In view of the
`
`above and the following, Kellogg was published and accessible to the public in
`
`1993, years before October 1999.
`
`20. As indicated in Exhibit C, Kellogg has a cataloging date of September
`
`28, 1993 (shown as “930928” in field 008). This confirms that Kellogg was
`
`entered into the OCLC database, in which MIT does its cataloging, on September
`
`28, 1993. This is also consistent with its noted year of publication in the MARC
`
`record (shown as “1993” in field 260). The OCLC database (also referred to as
`
`“WorldCat”) is the largest online public access catalog (OPAC) in the world.
`
`21. Soon after Kellogg received a cataloging date, a record of its existence
`
`would have appeared in and been keyword-searchable through the Barton Catalog
`
`of the MIT Libraries. The Barton Catalog is currently available online to any user
`
`of the World Wide Web. Before it was accessible by Web (i.e., at the time the
`
`
`
`6
`
`

`

`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`Kellogg thesis was received by the MIT Libraries in July 1993), it would have been
`
`accessible to anyone on the MIT campus and anyone who had access to the OCLC
`
`database.
`
`22. During the time period from September 1993 through October 1999,
`
`the Barton Catalog allowed keyword searching for words in the thesis title, and
`
`Kellogg would have appeared in a relevant Barton Catalog search conducted on or
`
`shortly after September 28, 1993.
`
`23. After being cataloged, a document such as Kellogg will undergo a
`
`process of being labeled and then shelved at the MIT Libraries. Based on my
`
`knowledge of MIT Libraries’ current and prior practices, Kellogg would have been
`
`shelved in a relatively nominal amount of time (i.e., a few days or weeks). Thus,
`
`Kellogg was cataloged and shelved at the MIT Libraries at least before the end of
`
`1993.
`
`24. Once shelved, Kellogg can be borrowed by any member of the MIT
`
`community. Furthermore, a copy of Kellogg can be purchased from MIT by any
`
`member of the public. Indeed, the first page of Kellogg confirms that there were
`
`no restrictions placed on its publication, as it states that “[t]he author hereby grants
`
`to MIT permission to reproduce and to distribute copies of this thesis document in
`
`whole or in part, and to grant others the right to do so.”
`
`
`
`7
`
`

`

`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`25. Further evidence of the public availability of Kellogg before October
`
`1999 is provided in Exhibit D, which is a copy of Flinchbaugh. In its
`
`Bibliography“References” section, Flinchbaugh cites to Kellogg (reference [41] on
`
`p. 151).209). It also states that Kellogg is available as a Technical Report, CSL-
`
`93-05-20, from Texas Instruments. As addressed below, Flinchbaugh was
`
`published in SPIE Volume 2962, which corresponds to the Proceedings from the
`
`25th10th Annual AIPR Workshop on Emerging Applications of Computer
`
`Vision.Joint Government-Industry Security Technology Symposium and
`
`Exhibition. The WorkshopSymposium was held October 16-18, 1996June 20-23,
`
`1994, and the Proceedings were published by at least 1997. Thus, Kellogg was at
`
`least available to members of the public in 1997, as shown by its citation in
`
`Flinchbaugh.
`
`26. For the avoidance of any doubt, I note that on June 23, 2001, Kellogg
`
`was also cataloged in the MIT Archive Noncirculating Collection 1,
`
`Noncirculating Collection 3, and in microfiche form in the Barker Library, as
`
`indicated in the three entries for PST8 and in the second, third, and fourth instances
`
`of field 008 on page 1 of Exhibit C. However, none of this alters the fact that
`
`Kellogg was published and accessible to the public in 1993, as indicated above.
`
`
`
`8
`
`

`

`Flinchbaugh
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`27. As indicated in Exhibit D, Flinchbaugh (Exhibit 1005 to the Petition
`
`in IPR2019-00235) was published in the Proceedings of the 25th AIPR Workshop:
`
`Emerging Applications of Computer Vision, SPIE Vol. 2962. 10th Annual Joint
`
`Government-Industry Security Technology Symposium and Exhibition. The
`
`WorkshopSymposium was held in Washington, D.C.Williamsburg, VA during
`
`October 16-18, 1996June 20-23, 1994, and the Proceedings was published by SPIE
`
`(The International Society for Optical Engineering). the American Defense
`
`Preparedness Association. Ex. D at 1. In view of the above and the following,
`
`Flinchbaugh was published and accessible to the public before October 1999.
`
`28. Page 2 of Exhibit D shows a copyright date of 1997. The edition of
`
`the SPIE Proceedings that was published with Flinchbaugh is Volume 2962, and it
`
`was “Printed in the United States of America.” Ex. D at 2.
`
`29.28. Although the copyright date of Flinchbaugh is listed as 1997, it
`
`appears that Flinchbaugh was actually published before that, in 1996. First, as
`
`noted above, the WorkshopSymposium was held in Washington,
`
`D.C.Williamsburg, VA during October 16-18, 1996. June 20-23, 1994. Second, a
`
`copy of Flinchbaugh was received and cataloged by the British Library of
`
`Congress in November 1996. February 1997. See Ex. E at 1. Exhibit E is the
`
`MARC record for the SPIE Proceedings, including Flinchbaugh, that was obtained
`
`
`
`9
`
`

`

`from the British Library of Congress. . As shown in field 008 near the top of on
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`page 21 of Exhibit E, Flinchbaugh was cataloged by the library on November 21,
`
`1996. February 17, 1997 (shown as 970217 in field 008). Based on standard library
`
`practices, this reference would have been shelved shortly after it was cataloged
`
`(i.e., within a few days or weeks). The above is corroborated by the dates stamped
`
`on the cover of the Proceedings, including the “12 Feb 1997” date at the top of the
`
`page indicating that it was received into the British Library’s “serials file” and the
`
`“17 Feb 1997” date on the middle-left side of the page indicating “conference
`
`indexed.” Ex. D at 1. Field 85241, subfield j of Exhibit E also has the number
`
`1086.803000, which matches the stamp in the upper right corner of Flinchbaugh.
`
`Collectively, Exhibits D and E show that Flinchbaugh was published and
`
`accessible to the public years before October 1999.
`
`30.29. Further evidence of the publication and public availability of
`
`Flinchbaugh can be found in Exhibit F, which is the MARC record for the SPIE
`
`Proceedings, including Flinchbaugh, that was obtained from the MIT Libraries.
`
`As shown in field 008 on page 1 of Exhibit F, Flinchbaugh was cataloged by the
`
`library on March 10, 1997. Based on standard library practices and my
`
`understanding of the practices of the MIT Libraries, this reference would have
`
`been shelved shortly after it was cataloged (i.e., within a few days or weeks) and
`
`accessible to the public before October 1999.. For example, Exhibit F-1 is a copy
`
`
`
`10
`
`

`

`of the ’469 Patent, which lists Thomas J. Olson as the inventor and shows that
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`Flinchbaugh was cited to the Patent Office. See Ex. F-1 at 1-2. Based on the Patent
`
`Office’s prosecution file of the ’469 Patent, Flinchbaugh was cited by the applicant
`
`with the filing of the application on April 15, 1999, more than a year before the
`
`earliest possible filing date of the ’912 Patent. Ex. F-1 at 20.
`
`30. For the avoidance of any doubt, I note that on April 8, 2011, online
`
`access to Flinchbaugh was provided to certain MIT-associated individuals, as
`
`indicated by the fields 008 and 8528 and the URL entry at the top of page 2 of
`
`Exhibit F. Also, on June 23, 2001, the SPIE Proceedings, including Flinchbaugh,
`
`was archived at the MIT Library Storage Annex (“LSA”), as indicated by the
`
`second 008 field and subsequent 8520 entry on page 2 of Exhibit F. As further
`
`evidence of the publication and public availability of Flinchbaugh, Exhibit F-2 is a
`
`copy of Collins, which is co-authored by one of the inventors of the ’912 Patent,
`
`Alan J. Lipton. Ex. F-2 at 1. As part of the “References” section in Collins,
`
`Flinchbaugh is listed and Collins states that Flinchbaugh was published in “June
`
`1994.” Ex. F-2 at 15.
`
`31. For the avoidance of any doubt, I note that Collins itself was
`
`published in 1999 and is a highly cited paper. For example, as indicated on the
`
`website “www.semanticscholar.org,” Collins was published in “1999” and is a
`
`highly cited paper, having “1,676 citations.” See Ex. F-2 at 16. However, none of
`
`
`
`11
`
`

`

`this alters the fact that Flinchbaugh was published and accessible to the public
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`years before October 1999, as indicated above.
`
`Brill
`
`32. As indicated in Exhibit G, Brill (Exhibit 1004 to each Petition in
`
`IPR2019-00235 and IPR2019-00236) is part of the published Proceedings of the
`
`1998 Image Understanding Workshop. The Workshop was held in Monterey,
`
`California during November 20-23, 1998, and the Proceedings were “APPROVED
`
`FOR PUBLIC RELEASE” with “DISTRIBUTION UNLIMITED.” Ex. G at 1. In
`
`view of the above and the following, the Proceedings, including Brill, was
`
`published and accessible to the public before October 1999.
`
`33. Evidence of Brill’s publication and availability to the public includes
`
`the hand-written receipt date of “8-13-99” at the top of page 3 of Exhibit G. This
`
`indicates it was received by the UMMU (the University of Michigan Media Union,
`
`now known as the Duderstadt Center) on August 13, 1999. In my experience as a
`
`librarian and knowledge of standard library practices, the hand-written information
`
`at the top of p. 2 of Exhibit G appears to be the catalog record information for
`
`Brill. Based on standard library practices, this reference would have been shelved
`
`shortly after being received and cataloged by UMMU.
`
`34. Further evidence of the publication and accessibility of Brill to the
`
`public can be found in Exhibit H, which is the MARC record for the Proceedings,
`
`
`
`12
`
`

`

`including Brill, that was obtained from the University of Virginia Library. As
`
`Case Nos. IPR2019-00235 and IPR2019-00236
`United States Patent No. 7,868,912
`
`
`shown in field 008 near the top of page 2 of Exhibit H, Brill was cataloged by the
`
`library on December 15, 1998. Based on standard library practices, this reference
`
`would have been shelved shortly after (i.e., within a few days or weeks) and been
`
`accessible to the public prior to October 1999.
`
`35. Further evidence of the publication and public availability of Brill can
`
`be found in Exhibit I, which is the MARC record for the Proceedings, including
`
`Brill, that was obtained from North Carolina State University. As shown in field
`
`008 on page 1 of Exhibit I, Brill was cataloged by the library on December 15,
`
`1998. Based on standard library practices, this reference would have been shelved
`
`shortly after (i.e., within a few days or weeks) and been accessible to the public
`
`prior to October 1999.
`
` declare under penalty of perjury that the foregoing is true and correct.
`
` I
`
`Executed on November 9, 2018April 1, 2019 in Washington, D.C.
`
`
`
`
`
`
`
`____________________________________
`Emily R. Florio
`
`13
`
`

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