`United States Patent No. 9,815,827
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`UNITED STATES PATENT AND TRADEMARK OFF1CE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`SLAYBACK PHARMA LLC
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`Petitioner
`
`v.
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`SUMJTOMO DAINIPPON PHARMA CO., LTD
`
`Patent Owner
`
`Case No. Unassigned
`Patent No. 9,815,827
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`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
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`INTRODUCTION
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`1.
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`My name is Sylvia D. Hall-Ellis. I have been retained by Windels
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`Marx Lane & Mittendorf, LLP (hereinafter "client") to provide expert opinion
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`testimony.
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`2.
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`I have written this report at the request of client to provide my expert
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`opinion regarding the authenticity and public availability of several publications.
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`My report sets forth my opinions in detail and provides the bases for my opinions
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`regarding the public availability of these publications.
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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 any additional evidence, testimony, discovery, argument, and/or
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`other additional information that may be provided to or obtained by me after the
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`date of this report.
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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 this dispute. I have no
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`other interests in this proceeding or with any of the parties.
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`5.
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`All of the materials that I considered are discussed explicitly in this
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`report.
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`I.
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`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 Jose State University.
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`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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`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,
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`and I served on the Committee on Cataloging: Resource and Description (which
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`wrote the new cataloging rules) and as the chair of the Committee for Education
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`and 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 served as the Chair for the ALA Office of Diversity's Committee
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`on Diversity, as a member of the REFORMA National Board of Directors, and as a
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`member of the Editorial Board for the ALCTS premier cataloging journal, Library
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`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.
`
`9.
`
`I have been deposed eleven times: (1) Symantec Corp. vs. Finjan,
`
`Inc., Petition for Inter Partes Review of U.S. Patent No. 7,613,926, May 26,
`
`2016, on behalf of Symantec Corp.; (2) Symantec Corp. vs. Finjan, Inc., 14-cv-
`
`299-HSG (N.D. Cal.), on behalf ofSymantec Corp., September 14, 2017; (3) one
`
`deposition for ten matters: Intellectual Ventures I LLC vs. AT&T Mobility LLC;
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`AT&T Mobility II LLC, New Cingular Wireless Services, Inc., SBC Internet
`
`Services, Inc., Wayport, Inc., and Cricket Wireless LLC, C.A. No. 12-193 (LPS);
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`Intellectual Ventures II LLC vs. AT&T Mobility LLC; AT&T Mobility IT LLC,
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`New Cingular Wireless Services, Inc., SBC Internet Services, Inc., Waypm1, Inc.,
`
`and Cricket Wireless LLC, C.A. No. 13-1631 (LPS); Intellectual Ventures I LLC
`
`vs. T-Mobile USA, Inc. and T-Mobile US, Inc., C.A. No. 13-1632 (LPS);
`
`Intellectual Ventures II LLC vs. T-Mobile USA, Inc. and T-Mobile US, Inc., C.A.
`
`No. 13-1633 (LPS); Intellectual Ventures I LLC, vs. Nextel Operations, Inc., Sprint
`
`Spectrum L.P., Boost Mobile, LLC and Virgin Mobile USA, L.P., C.A. No. 13-1634
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`(LPS); Intellectual Ventures II LLC vs. Nextel Operations, Inc., Sprint Spectrum
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`L.P., Boost Mobile, LLC and Virgin Mobile USA, L.P., C.A. No. 13- 1635 (LPS);
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`Intellectual Ventures I LLC, vs. United States Cellular Corporation, C.A. No. 13-
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`1636 (LPS); Intellectual Ventures I LLC vs. United States Cellular Corporation,
`
`C.A. No. 13-1637 (LPS); Intellectual Ventures If LLC vs. AT&T Mobility LLC,
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`AT&T Mobility 11 LLC, New Cingular Wireless Services, Inc. , C.A. No. 15-799
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`(LPS); Intellectual Ventures I LLC vs. T-Mobile USA, Inc. and T-Mobile US, Inc.,
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`C.A. No. 15-800 (LPS), on behalf of AT&T Mobility LLC; AT&T Mobility II
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`LLC, Boost Mobile, LLC Cricket Wireless LLC, Nextel Operations, Inc., New
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`Cingular Wireless Services, lnc., SBC Internet Services, Inc., Sprint Spectrum
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`L.P., T-Mobile USA, Inc., T-Mobile US, Inc., United States Cellular Corporation
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`Virgin Mobile USA, L.P., and Wayport, Inc., November 15, 2016; (4) Hitachi
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`Maxell, LTD., v. Top Victory Electronics (Taiwan) Co. Ltd., et al., 2:14-cv-1121
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`JRG-RSP (E.D. Texas), on behalf of Top Victory Electronics (Taiwan) Co. LTD,
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`et. al., January 20, 2016; (5) Sprint Spectrum, L.P. vs. General Access Solutions,
`
`Ltd., Petition for Inter Partes Review of U.S. Patent No. 7,173,916, on behalf of
`
`Sprint Spectrum L.P., July 13, 2018; (6) Nichia Corporation vs. Vizio, Inc., 8:16-
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`cv-00545; on behalf ofVizio, Inc., October 12, 2018; (7) Intellectual Ventures I
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`LLC, vs. T-Mobile USA,
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`Inc., T-Mobile US,
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`Inc., Ericsson Inc., and
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`Telefonaktiebolaget LM Ericsson, 2:17-cv-00557 (JRG), on behalf ofT-Mobile
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`USA, Inc., T-Mobile US, Inc., Ericsson Inc., and Telefonaktiebolaget LM
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`Ericsson, October 19, 2018; (8) Pfizer, Inc. vs. Biogen, Inc., Petition for Inter
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`Partes Review of U.S. Patent No. 8,821,873, on behalf of Pfizer, November 3,
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`2018; (9) Finjan, Inc. vs. ESET, LLC and ESET SPOL. S.R.O. , 3:17-cv-00183-
`
`CAB-BGS, on behalf of ESET, January 15, 2019; (1 0) Finjan, Inc. vs. Cisco
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`Systems, Inc., 5:17-cv-00072-BLF-SVK, on behalf of Cisco Systems, Inc.,
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`September 6, 2019; and, (11) Facebook, Inc. , Instagram, LLC and Whatsapp Inc.
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`vs. Blackberry Limited, Petition for Inter Partes Review of U.S. Patent No.
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`9,349,120 B2, on behalf of Facebook, Inc., lnstagram, LLC and Whatsapp Inc.
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`December 20, 2019. I have not testified at trial.
`
`10. My full curriculum vitae is attached hereto as Attachment A.
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`II.
`
`PRELIMINARIES
`
`A.
`
`Scope of This Report
`
`11.
`
`I am not an attorney and will not offer opinions on the law. I am,
`
`however, rendering my expert opinion on the authenticity of the documents
`
`referenced herein and on when and how each of these documents was disseminated
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`or otherwise made available to the extent that persons interested and ordinarily
`
`skilled in the subject matter or art, exercising reasonable diligence, could have
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`located the documents.
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`12.
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`I am informed by counsel that an item is considered authentic if there
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`is sufficient evidence to support a finding that the item is what it is claimed to be. I
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`am also informed that authenticity can be established based on the contents of the
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`documents themselves, such as the appearance, contents, substance, internal
`
`patterns, or other distinctive characteristics of the item, taken together with all of
`
`the circumstances. I am further informed that an item is considered authentic if it
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`at least 20 years old, in a condition that creates no suspicion of its authenticity, and
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`in a place where, if authentic, it would likely be. Lastly, I have been informed that
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`a document's authenticity can be established by comparison with an authentic
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`spectmen.
`
`13.
`
`I am informed by counsel that a printed publication qualifies as
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`publicly accessible as of the date it was disseminated or othetwise made available
`
`such that a person interested in and ordinarily skilled in the relevant subject matter
`
`could locate it through the exercise of ordinary diligence.
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`14. 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. That is, I understand that
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`cataloging and indexing by a library is sufficient, although there are other ways
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`that 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 the cataloging and indexing by a single library of a single instance of a
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`particular printed publication is sufficient, even if the single library is in a foreign
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`country.
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`I understand that, even if access to a library is restricted, a printed
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`publication that has been cataloged and indexed therein is publicly-accessible so
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`long as a presumption is raised that the portion of the public concerned with the
`
`relevant subject matter would know of the printed publication. I also understand
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`that the cataloging and indexing of information that would guide a person
`
`interested in the relevant subject matter to the printed publication, such as the
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`cataloging and indexing of an abstract for the printed publication, is sufficient to
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`render the printed publication publicly-accessible.
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`15.
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`I understand that routine business practices, such as general library
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`cataloging and indexing practices, can be used to establish an approximate date on
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`which a printed publication became publicly accessible.
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`B.
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`Internet Archive
`
`16. The Internet Archive is a non-profit digital library founded in 1996.
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`The Internet Archive maintains an archive of webpages collected from the Internet
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`using software called a crawler.
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`webpages as they existed at a certain point in time. The WayBack Machine is an
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`application using a crawler created by the Internet Archive to search its archive of
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`Web page URLs and to represent, graphically, the date of each crawler capture.
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`The Internet Archive captures data that is publicly available. Some sites are "not
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`archived because they were password protected, blocked by robots.txt, or
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`otherwise inaccessible to our automated systems. Site owners might have also
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`requested that their sites be excluded from the WayBack Machine." Many Internet
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`Archive captures made by the Way Back Machine have a banner at the top with the
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`capture date prominently displayed. Other dates when captures of the same URL
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`have been made are indicated to the right and left of the date provided in the
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`banner. Some captures may lack this banner. In any case, the URL for the capture
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`begins with
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`the
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`identification of
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`the
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`Internet Archive page
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`(e.g.,
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`http://web.archive.org/web/) followed by information that dates and time stamps
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`the capture as follows: year in yyyy, month in mm, day in dd, time code in
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`hh:mm:ss (e.g., 20071120082013, or November 20, 2007 at 8:20:13 a.m.). These
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`elements are then followed by the URL of the original capture site. When links are
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`active, the WayBack Machine is programed to produce the archived file with the
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`closest available date (not the closest available prior date) to the page upon which
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`the link appeared and was clicked. I and other Librarian professionals are familiar
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`with the Internet Archive and the Way back Machine. 1
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`C.
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`Indexing
`
`17. A researcher may discover material relevant to his or her topic in a
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`variety of ways. One common means of discovery is to search for relevant
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`information in an index of periodical and other pub I ications. Having found
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`relevant material, the researcher will then normally obtain it online, look for it in
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`libraries, or purchase it from the publisher, a bookstore, a document delivery
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`service, or other provider.
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`Sometimes, the date of a document' s public
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`accessibility will involve both indexing and library date information. However,
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`date information for indexing entries is often unavailable. This is especially true
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`for online indices.
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`18.
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`Indexing services use a wide variety of controlled vocabularies to
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`provide subject access and other means of discovering the content of documents.
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`The formats in which these access terms are presented vary from service to service.
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`19. Before the widespread development of online databases to index
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`articles in journals, magazines, conference papers, and technical reports, libraries
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`purchased printed volumes of indices. Graduate library school education mandated
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`1 For more information about the lntetnet Archive see the WayBack Machine
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`that students learn about the bibliographic control of disciplines, the prominent
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`indexing volumes, and searching strategies required to use them effectively and
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`efficiently. Half of the courses that I studied in library school were focused on the
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`bibliography and resources in academic disciplines.
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`20. Librarians consulted with information seekers to verify citations,
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`check availability in union catalogs, printed books catalogs, and the OCLC
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`database, and make formal requests for materials, e.g., books, conference
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`proceedings, journal articles. Requests were transmitted using Telex machines,
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`rudimentary email systems, and the United States Postal Service. During my
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`career, I have performed and supervised staff who handled these resource sharing
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`tasks.
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`21. A major firm known for the breadth of subjects and comprehensive
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`treatment in the preparation of index volumes, the H. W. Wilson Company offered
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`these reference resources since the firm was founded in 1898. The Reader 's Guide
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`to Periodical Literature is one of the best-known titles available from H. W.
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`Wilson. Each volume includes a comprehensive index for 300 of the most popular
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`and important periodicals published in the United States and Canada. Information
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`seekers have subject access expressed in plain language terminology, author
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`F AQ, https://archive.org/about/fags.php#The Wayback Machine.
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`access, and cross references to find the desired results from their searches. The
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`family of index titles included Science & Technology Index, Business Periodicals,
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`Applied Science & Technology Index, Humanities Index, Biological & Agricultural
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`Index, and Industrial Arts Index. These printed indices have been superseded by
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`digital database offerings available to information seekers through Ebsco.
`
`22.
`
`Information seekers also used printed versions of Chemical Abstracts
`
`and Index Medicus to locate articles, scientific reports, and research papers.
`
`Chemical Abstracts began publication in 1907 and by 2007 its databases
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`"contained more than 27 million records of journal and patent literature." 2 In
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`2010, Chemical Abstracts discontinued the print index. Access is available
`
`through two databases: CAp/us and Registry.3
`
`23. Established in 1836 as part of the Surgeon General of the Army's
`
`Office, the National Library of Medicine ("NLM") has been instrumental in the
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`development of access to medical books, journals, and research publications. In
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`the 1970s, NLM introduced MEDLINE, followed by "the establishment of the
`
`2 Chemical Abstracts Service, "CAS History," available at
`https://www.cas.org/about/cas-history (last visited March 23, 2020); American
`Chemical Society, "Chemical Abstracts Service," available at
`https://www.acs.org/content/acs/en/education/whatischemistry/landmarks/cas.html
`(last visited March 23, 2020).
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`National Center for Biotechnology Infmmation in 1988, the introduction of free
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`MEDLINE in 1997, the creation of consumer-friendly MedlinePlus in 1998, and
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`the introduction of ClinicalTrials.gov in 2000."4 Index Medicus is a bibliographic
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`index to medical science infmmation, started in 1879. 5 Currently, PubMed
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`includes the content that had been published as Index Medicus .6
`
`24. Online
`
`indexing
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`serviCes
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`commonly
`
`prov ide
`
`bibliographic
`
`information, abstracts, and full-text copies of the indexed publications, along with
`
`a list of the documents cited in the indexed publication. These services also often
`
`provide lists of publications that cite a given document. A citation of a document
`
`is evidence that the document was publicly available and in use no later than the
`
`publication date of the citing document.
`
`25. Online
`
`indexing
`
`services
`
`commonly
`
`provide
`
`bibliographic
`
`information, abstracts, and full-text copies of the indexed publications, along with
`
`3 American Chemical Society, "Chemical Abstracts Service," available at
`https://www.acs.org/content/acs/en/education/whatischemistry/landmarks/cas.html
`(last visited March 23, 2020).
`4 U.S. National Library of Medicine, "A Brief History ofNLM," available at
`https://www.nlm.nih.gov/about/briefhistory.html (last visited March 23 , 2020).
`5 Stephen Greenberg and Patricia Gallagher, "The great contribution: Index
`Medicus , Index-Catalogue, and IndexCast," Journal of Medical Librwy
`Association, April 2009, available at
`https://www.ncbi.nlm.nih.gov/pmc/articles/PMC26702Ill (last visited March 23,
`2020).
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`a list of the documents cited in the indexed publication. These services also often
`
`provide lists of publications that cite a given document. A citation of a document
`
`is evidence that the document was publicly available and in use by researchers no
`
`later than the publication date of the citing document.
`
`ill. LffiRARY CATALOGING PRACTICES
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`26.
`
`I am fully familiar with the library cataloging standard known as the
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information. 7 MARC was first developed in the 1960s
`
`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. 8
`
`6 U.S . National Library of Medicine, "List of All Journals Cited in PubMed,®"
`https://www.nlm.nih.gov/bsd/serfile addedinfo.html (last visited March 23 , 2020).
`7 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliograpbic/ (last visited March 23, 2020).
`8 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 23, 2020) ("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
`bibliographic information, and its data elements make up the foundation of most
`library catalogs used today."). MARC is the ANSI/NISO 239.2-1994 (reaffirmed
`2016) standard for Information Interchange Format.
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`27.
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`Since at least the early 1970s and continuing to the present day,
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`MARC has been the primary communications protocol for the transfer and storage
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`of bibliographic metadata in libraries.9 As explained by the Library of Congress:
`
`You could devise your own method of organizing the bibliographic
`
`information, but you would be isolating your library, limiting its
`
`options, and creating much more work for yourself. Using the MARC
`
`standard prevents duplication of work and allows libraries to better
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`share bibliographic resources. Choosing to use MARC enables
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`libraries to acquire cataloging data that is predictable and reliable. If a
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`library were to develop a "home-grown" system that did not use
`
`MARC records, it would not be taking advantage of an industry-wide
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`standard whose primary purpose is to foster communication of
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`information .
`
`Using the MARC standard also enables libraries to make use of
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`commercially available library automation systems to manage library
`
`operations. Many systems are available for libraries of all sizes and
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`are designed to work with the MARC format. Systems are maintained
`
`and improved by the vendor so that libraries can benefit from the
`
`latest advances in computer technology. The MARC standard also
`
`9 A complete history of the development of MARC can be found in MARC: Its
`History and Implications by Henrietta D. Avram (Washington, DC: Library of
`Congress, 1975) and available online from the Hathi Trust
`(https://babel.hathitrust.org/cgi/pt?id=mdp.390 15034388556;view= l up;seq=l ; last
`visited March 23, 2020).
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`allows libraries to replace one system with another with the assurance
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`that their data will still be compatible.
`
`Why
`
`Is
`
`a MARC Record Necessary?
`
`LIBRARY
`
`OF
`
`CONGRESS,
`
`http://www.loc.gov/marc/umb/umOI to06.html#part2 (last visited March 23, 2020).
`
`28. Thus, 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 23, 2020) ("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 fifty years ago. It
`
`provides the mechanism by which computers exchange, use, and interpret
`
`bibliographic information, and its data elements make up the foundation of most
`
`library catalogs used today."). MARC is the ANSI/NlSO Z39.2-1994 standard
`
`(reaffmned in 2016) for Information Interchange Format. The full text of the
`
`standard
`
`lS
`
`available
`
`from
`
`the
`
`Library
`
`of
`
`Congress
`
`at
`
`http://www.loc.gov/marc/bibliographic/ (last visited March 23, 2020).
`
`29. A MARC record comprises several fields, each of which contains
`
`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 or creator of the work is
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`recorded in field 100, an item's International Standard Book Number ("ISBN") is
`
`recorded in field 020, an item's International Standard Serial Number ("ISSN") is
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`recorded in field 022, an item's Library of Congress call number is recorded in
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`field 050, and the publication date is recorded in field 260 under the subfield "c."
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`!d. IO If a work is a periodical, then its publication frequency is recorded in field
`
`310, altetnate publication frequency is recorded in field 321, and the publication
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`dates (e.g., the first and last publication) are recorded in field 362, which is also
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`referred
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`to
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`as
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`the
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`enumeration! chronology
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`field .
`
`See
`
`http://www.loc.gov/marc/bibliographic/bd362.html (last visited March 23 , 2020).
`
`30. MARC records also include several fields that include subject matter
`
`classification information. An overview of MARC record fields is available
`
`through the Library of Congress at http://www.loc.gov/marc/bibliographic/. For
`
`example,
`
`6:XX
`
`fields
`
`are
`
`termed
`
`"Subject Access Fields."
`
`See
`
`http://www.loc.gov/marc/bibliographic/bd6xx.html. Among these, for example, is
`
`the 650 field; this is the "Subject Added Entry - Topical Term" field. See
`
`http://www.loc.gov/marc/bibliographic/bd650.html. The 650 field is a " [s]ubject
`
`10 In some MARC records, field 264 is used rather than field 260 to record
`publication information. See http://www.Ioc.gov/marc/bibliographic/bd264.html
`(last visited March 23 , 2020) ("Information in field 264 is similar to information in
`field 260 (Publication, Distribution, etc. (Imprint)). Field 264 is useful for cases
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`added entry in which the entry element is a topical term." Jd. These authenticated
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`subject entries "are assigned to a bibliographic record to provide access according
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`to generally accepted thesaurus-building rules (e.g., Library of Congress Subject
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`Headings (LCSH), Medical Subject Headings (MeSH))." Id.
`
`3l. Further, MARC records include call numbers, which themselves
`
`indicate a subject and physical location within the library collections. For
`
`example, the 050 field
`
`is the "Library of Congress Call Number."
`
`See
`
`http://www.loc.gov/marc/bibljographic/bd050.html (last visited March 23, 2020).
`
`A defined portion of the Library of Congress Call Number is the classification
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`number, and "source of the classification number is Library of Congress
`
`Classification and the LC Classification-Additions and Changes."
`
`Id. Thus,
`
`included in the 050 field is a subject matter classification. Each item in a library
`
`has a single classification number. A library selects a classification scheme (e.g.,
`
`the Library of Congress Classification scheme just described or a similar scheme
`
`such as the Dewey Decimal Classification scheme or the National Library of
`
`Medicine 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
`
`where the content standard or institutional policies make a distinction between
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`scenano, the MARC record includes a classification nwuber that represents a
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`subject matter classification.
`
`32. Each item in a library has a single classification number. A library
`
`selects a classification scheme (e.g., the Library of Congress Classification scheme
`
`just described or a similar scheme such as the Dewey Decimal Classification
`
`scheme) and uses it consistently. When the Library of Congress assigns the
`
`classification number, it appears as patt of the 050 field, as discussed above. For
`
`MARC records created by libraries other than the Library of Congress (e.g., a
`
`university library or a local public library), the classification number may appear in
`
`a 09X (e.g., 090) field. See http://www.loc.gov/marc/bibliographiclbd09x.htmJ
`
`(last visited March 23, 2020).
`
`33. The OCLC was created "to establish, maintain and operate a
`
`computerized library network and to promote the evolution of library use, of
`
`libraries themselves, and of librarianship, and to provide processes and products
`
`for the benefit of library users and libraries, including such objectives as increasing
`
`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
`
`ease of access to and use of the ever-expanding body of worldwide scientific,
`
`functions").
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`literary and educational knowledge and information." 11 Among other services,
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`OCLC and its members are responsible for maintaining the WorldCat database
`
`(http://www.worldcat.org/), used by
`
`independent and
`
`institutional
`
`libraries
`
`throughout the world.
`
`34. OCLC also provides its members online access to MARC records
`
`through its OCLC bibliographic database. When an OCLC member institution
`
`acquires a work, it creates a MARC record for this work in its computer catalog
`
`system in the ordinary course of its business. MARC records created at the Library
`
`of Congress were initially tape-loaded into the OCLC database through a
`
`subscription to MARC Distribution Services daily or weekly. Once the MARC
`
`record is created by a cataloger at an OCLC member institution or is tape-loaded
`
`from the Library of Congress, the MARC record is then made available to any
`
`other OCLC members online, and therefore made available to the public.
`
`Accordingly, once the MARC record is created by a cataloger at an OCLC member
`
`institution or is tape-loaded from the Library of Congress or another library
`
`anywhere in the world, any publication corresponding to the MARC record has
`
`been cataloged and indexed according to its subject matter such that a person
`
`11 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`Library Center, Incorporated (available at
`https://www.oclc.org/contentldam/oclc/membership/articles-of-incorporation.pdt).
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`interested in that subject matter could, with reasonable diligence, locate and access
`
`the publication through any library with access to the OCLC bibliographic
`
`database or through the Library of Congress.
`
`35. When an OCLC member institution creates a new MARC record,
`
`OCLC automatically supplies the date of creation for that record. The date of
`
`creation for the MARC record appears in the fixed field (008), characters 00
`
`through 05. The MARC record creation date reflects the date on which, or shortly
`
`after which, the item was first acquired or cataloged. Initially, field 005 of the
`
`MARC record is automatically populated with the date the MARC record was
`
`created in year, month, day format (YYYYMMDD) (some of the newer library
`
`catalog systems also include hour, minute, second (HHMMSS)). Thereafter, the
`
`library's computer system may automatically update the date in field 005 every
`
`time the library updates the MARC record (e.g., to reflect that an item has been
`
`moved to a different shelving location within the library). Field 005 is visible
`
`when viewing a MARC record via an appropriate computerized interface, but
`
`when a MARC record is printed to hardcopy, no "005'' label appears. The initial
`
`field 005 date (i.e., the date the MARC record was created) does appear, however,
`
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`next to the label "Entered." 12 The date upon which the most recent update to field
`
`005 occUlTed also appears, next to the label "Replaced." Thus, when an item's
`
`MARC record has been printed to hardcopy-as is the case with Attachments 1 a
`
`and 1 c to this report-the date reflected next to the label "Entered" is necessarily
`
`on or after the date the library first cataloged and indexed the underlying item.
`
`36. Once one library has cataloged and indexed a publica