Rick and Kurt -
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`Thanks for making time for the call this afternoon. It sounds like it wasn't the most convenient
`time to get you both in the same place, so we appreciate it.
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`If you couldn't tell, Jordan and I were completely caught off-guard by your accusation that
`somebody on our legal team “forged” Ex. 1004 to the Petition. As we said on the call, we
`roundly reject your serious accusation against us (and against our client).
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`When we first reviewed the section of the POPR and Howell declaration that suggested
`something was purportedly amiss with the timing of Ex. 1004, we never expected that we
`would be personally accused of anything nefarious.
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`Before you publicly damage our professional reputations with baseless allegations of forgery, we
`want to make sure you are both aware that Mr. Howell’s declaration suggests that his
`understanding of the Internet Archive’s Wayback Machine is seriously flawed. Take, for example,
`the screenshot that appears at paragraph 70 of his declaration:
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`After this paragraph Mr. Howell spends many paragraphs in his declaration needlessly explaining
`how he examined HTML source code to try to understand when the screenshots that comprise
`Ex. 1004 were archived from the Internet. Given the purported goal and nature of his inquiry, it
`is surprising that Mr. Howell completely fails in his declaration to first review the "About this
`capture" page (available in the upper righthand corner of every archived page):
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`Selecting that “About this capture” dropdown page for each of the links/crawls in question
`would have revealed that each of those links/crawls were archived by the Alexa Crawls project
`(run by Alexa Internet, Inc. (a wholly-owned subsidiary of Amazon)) on the date set forth as the
`“archive date” set forth in the masthead of Internet Explorer (i.e., FEB 01, 2011) and (as
`acknowledged on the “About this capture” page) later uploaded to Archive.org:
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`So, with just one click, it would have been abundantly clear to Mr. Howell (and you) that a third-
`party organization known for archiving webpages and subsequently providing the archived pages
`to Internet Archive (http://blog.archive.org/2013/10/25/fixing-broken-links/) was responsible for
`archiving the information contained in Ex. 1004 (on February 1, 2011), not Guardian nor anyone
`else associated with Guardian, and especially not the lawyers that submitted Ex. 1004 to the U.S.
`Patent Trial and Appeal Board.
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`Frankly, we have contemplated raising Mr. Howell’s mischaracterization of the operation of the
`Internet Archive at trial (assuming the Board decides to institute). However, now we are
`contemplating the possibility of moving for leave to file a three-page reply to debunk that
`portion of Mr. Howell’s Declaration (and particularly the paragraphs that suggest foul play on
`behalf of Guardian (i.e. paragraphs 79-80)) before the Board’s institution decision. We would be
`willing to entertain an unopposed motion by Patent Owner to file an amended declaration (and
`amended POPR) that remove these issues instead. Please let us know your thoughts on this, so
`we know what permission to seek from the Board.
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`At a minimum, after you have reviewed the information provided by the Internet Archive and
`Alexa Internet for yourselves, please confirm that today’s call is the last anyone will hear your
`baseless “forgery” allegations. If you somehow continue to believe something is amiss with Ex.
`1004 after reviewing the information readily available on the Internet Archive, please provide the
`"additional" evidence/authority you alluded to on yesterday afternoon’s call by close of business
`eastern time today, as the timing of our request for a call with the Board over Petitioner's
`Motion to Correct is a factor in consideration of such motions.
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`We will quickly review the information you provide, let you know our thoughts, and submit a
`request to the Board for a teleconference regarding whatever motions (including Petitioner’s
`request for leave to file a Motion to Correct) no later than the following evening (Friday).
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`Regards,
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`Evan
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