`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`Yita LLC,
` Petitioner
`v.
`
`MacNeil IP LLC,
`Patent Owner
`
`
`Case No. IPR2020-01138
`U.S. Patent No. 8,382,186
`
`
`
`
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`IN SUPPORT OF PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 8,382,186
`
`
`
`
`
`
`
`
`
`
`
`
`
`EX1033
`Yita v. MacNeil
`IPR2020-01138
`
`
`
`
`
`I, Sylvia D. Hall-Ellis, Ph.D., declare as follows:
`
`I.
`
`INTRODUCTION
`1. My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`Yita LLC (“the Petitioner”), who I am informed is a petitioner for the inter partes
`
`review (IPR) proceeding in which this declaration is being submitted.
`
`2.
`
`I have written this declaration at the request of the Petitioner to
`
`provide my expert opinion regarding the authenticity and public availability of a
`
`publication, identified in Section V below. My declaration sets forth my opinions
`
`in detail and provides the basis for my opinions regarding the authenticity and
`
`public availability of the publication. If called to testify in the above-captioned
`
`matter, I will testify with regard to the opinions and bases set forth below.
`
`3.
`
`I reserve the right to supplement or amend my opinions, and bases for
`
`them, in response to any additional evidence, testimony, discovery, argument,
`
`and/or other additional information that may be provided to me after the date of
`
`this declaration.
`
`4.
`
`As of the preparation and signing of this declaration, libraries across
`
`the nation are closed pursuant to an order of the federal and state governments due
`
`to the COVID-19 virus. However, were the libraries open, I would expect to be
`
`able to obtain paper copies of the documents in this declaration. Additionally, it is
`
`my typical practice to obtain a paper copy of each publication to further confirm
`
`- 1 -
`
`
`
`
`
`my opinions that the documents were available prior to the alleged priority date of
`
`a patent under consideration. I reserve the right to supplement my declaration when
`
`the libraries reopen to provide such information.
`
`5.
`
`I am being compensated for my time spent working on this matter at
`
`my normal consulting rate of $300 per hour, plus reimbursement for any additional
`
`reasonable expenses. My compensation is not in any way tied to the content of this
`
`report, the substance of my opinions, or the outcome of this proceeding. I have no
`
`other interests in this proceeding or with any of the parties.
`
`6.
`
`All of the materials that I considered and relied upon are discussed
`
`explicitly in this declaration.
`
`II. QUALIFICATIONS
`I am currently an Adjunct Professor in the School of Information at
`7.
`
`San José State University in San José, California. I obtained a Masters of Library
`
`Science from the University of North Texas in 1972 and a Ph.D. in Library Science
`
`from the University of Pittsburgh in 1985. Over the last fifty years, I have held
`
`various positions in the field of library and information resources. I was first
`
`employed as a librarian in 1966 and have been involved in the field of library
`
`sciences since, holding numerous positions.
`
`8.
`
`I am a member of the American Library Association (ALA) and its
`
`Association for Library Collections & Technical Services (ALCTS) Division, and I
`
`- 2 -
`
`
`
`
`
`served on the Committee on Cataloging: Resource and Description (which wrote
`
`the new cataloging rules) and as the chair of the Committee for Education and
`
`Training of Catalogers and the Competencies and Education for a Career in
`
`Cataloging Interest Group. I also served as the Chair of the ALCTS Division’s
`
`Task Force on Competencies and Education for a Career in Cataloging.
`
`Additionally, I have served as the Chair for the ALA Office of Diversity’s
`
`Committee on Diversity, as a member of the REFORMA National Board of
`
`Directors, and as a member of the Editorial Board for the ALCTS premier
`
`cataloging journal, Library Resources and Technical Services.
`
`9.
`
`I have also given over one hundred presentations in the field,
`
`including several on library cataloging systems and Machine-Readable Cataloging
`
`(“MARC”) standards. My current research interests include library cataloging
`
`systems, metadata, and organization of electronic resources.
`
`10. My full curriculum vitae is attached hereto as Attachment B
`
`III. PRELIMINARIES
`Scope of Declaration and Legal Standards
`A.
`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
`
`or otherwise made available to the extent that persons interested and ordinarily
`
`- 3 -
`
`
`
`
`
`skilled in the subject matter or art, exercising reasonable diligence, could have
`
`located the documents before the dates discussed below with respect to the specific
`
`documents.
`
`12.
`
`I am informed by counsel that a printed publication qualifies as
`
`publicly accessible as of the date it was disseminated or otherwise 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.
`
`13. While I understand that the determination of public accessibility under
`
`the foregoing standard rests on a case-by-case analysis of the facts particular to an
`
`individual publication, I also understand that a printed publication is rendered
`
`“publicly accessible” if it is cataloged and indexed by a library such that a person
`
`interested in the relevant subject matter could locate it (i.e., I understand that
`
`cataloging and indexing by a library is sufficient, though there are other ways that
`
`a printed publication may qualify as publicly accessible). One manner of sufficient
`
`indexing is indexing according to subject matter category. I understand that the
`
`cataloging and indexing by a single library of a single instance of a particular
`
`printed publication is sufficient, even if the single library is in a foreign country. I
`
`understand that, even if access to a library is restricted, a printed publication that
`
`has been cataloged and indexed therein is publicly accessible so long as a
`
`presumption is raised that the portion of the public concerned with the relevant
`
`- 4 -
`
`
`
`
`
`subject matter would know of the printed publication. I also understand 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 cataloging and
`
`indexing of an abstract for the printed publication, is sufficient to render the
`
`printed publication publicly accessible.
`
`14.
`
`I understand that routine business practices, such as general library
`
`cataloging and indexing practices, can be used to establish an approximate date on
`
`which a printed publication became publicly accessible.
`
`B.
`15.
`
`Persons of Ordinary Skill in the Art
`I am told by counsel that the subject matter of this proceeding
`
`generally relates to vehicle floor trays, and more specifically thermoformed
`
`rubberized or plastic vehicle floor trays.
`
`16.
`
`I have been informed by counsel that a “person of ordinary skill in the
`
`art at the time of the invention” (POSITA) is a hypothetical person who is
`
`presumed to be familiar with the relevant field and its literature at the time of the
`
`inventions. This hypothetical person is also a person of ordinary creativity, capable
`
`of understanding the scientific principles applicable to the pertinent field.
`
`17.
`
`I am told by counsel that a person of ordinary skill in this subject
`
`matter or art would have had a bachelor’s degree in engineering: plastics,
`
`mechanical, or a closely related field, or equivalent formal training, education, or
`
`- 5 -
`
`
`
`
`
`practical experience in a field relating to plastic product design, material science,
`
`or manufacturing, and that this person would also have a minimum of three to five
`
`years of experience in plastics engineering, manufacturing, plastic product design,
`
`or a related industry. I have been further informed by counsel that a person of
`
`ordinary skill in the art would have been familiar with and able to understand the
`
`information known in the art relating to these fields, including the publication
`
`discussed in this declaration.
`
`C. Use of Authoritative Databases
`In preparing this report, I used authoritative databases, such as the
`18.
`
`OCLC bibliographic database and the Library of Congress Online Catalog, to
`
`confirm citation details of the publication discussed. Unless I note otherwise below
`
`in reference to a specific serial publication, it is my expert opinion that this
`
`standard protocol was followed for the publications discussed in Section V below.
`
`19.
`
`Indexing. A researcher may discover material relevant to his or her
`
`topic in a variety of ways. One common means of discovery is to search for
`
`relevant information in an index of periodical and other publications. Having found
`
`relevant material, the researcher will then normally obtain it online, look for it in
`
`libraries, or purchase it from the publisher, a bookstore, a document delivery
`
`service, or other provider. Sometimes, the date of a document’s public accessibility
`
`will involve both indexing and library date information.
`
`- 6 -
`
`
`
`
`
`20.
`
`Indexing services use a wide variety of controlled vocabularies to
`
`provide subject access and other means of discovering the content of documents.
`
`The formats in which these access terms are presented vary from service to service.
`
`21. Online indexing services and digital repositories commonly provide
`
`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 by researchers no later than the publication date of the citing document.
`
`D.
`22.
`
`Summary of Opinions
`I am informed by counsel that the earliest possible priority date for the
`
`patent at issue is October 29, 2004. As I will explain below, it is my opinion that
`
`the printed publication discussed in my Declaration was publicly accessible before
`
`the earliest possible priority date.
`
`IV. LIBRARY CATALOGING PRACTICES
`A. MARC Records and OCLC
`I am fully familiar with the library cataloging standard known as the
`23.
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information. MARC was first developed in the 1960’s
`
`by the Library of Congress. A MARC-compatible library is one that has a catalog
`
`consisting of individual MARC records for works made available at that library.
`
`- 7 -
`
`
`
`24. Since at least the early 1970s and continuing to the present day,
`
`MARC has been the primary communications protocol for the transfer and storage
`
`of bibliographic metadata in libraries.1 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 share
`
`bibliographic resources. Choosing to use MARC enables libraries to acquire
`
`cataloging data that is predictable and reliable. If a library were to develop a
`
`“home-grown” system that did not use MARC records, it would not be
`
`taking advantage of an industry-wide standard whose primary purpose is to
`
`foster communication of information.
`
`Using the MARC standard also enables libraries to make use of
`
`commercially available library automation systems to manage library
`
`
`1 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.39015034388556;view=1up;seq=1; last
`
`visited May 20, 2020).
`
`- 8 -
`
`
`
`
`
`operations. Many systems are available for libraries of all sizes and 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 allows libraries to replace
`
`one system with another with the assurance that their data will still be
`
`compatible.
`
`Why Is a MARC Record Necessary? LIBRARY OF CONGRESS,
`
`http://www.loc.gov/marc/umb/um01to06.html#part2 (last visited May 20, 2020).
`
`25. 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 May 20, 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/NISO Z39.2-1994 standard
`
`(reaffirmed in 2016) for Information Interchange Format. The full text of the
`
`standard is available from the Library of Congress at
`
`http://www.loc.gov/marc/bibliographic/ (last visited May 20, 2020).
`
`26. A MARC record comprises several fields, each of which contains
`
`- 9 -
`
`
`
`
`
`specific data about the work. Each field is identified by a standardized, unique,
`
`three-digit code corresponding to the type of data that follow. See, e.g.,
`
`http://www.loc.gov/marc/umb/um07to10.html (last visited May 20, 2020);
`
`http://www.loc.gov/marc/bibliographic/ (last visited May 20, 2020). For example,
`
`a work’s title is recorded in field 245, the primary author of the work is recorded in
`
`field 100, a work’s International Standard Book Number (“ISBN”) is recorded in
`
`field 020, a work’s International Standard Serial Number (“ISSN”) is recorded in
`
`field 022, and the publication date is recorded in field 260 under the subfield “c.”
`
`See http://www.loc.gov/marc/bibliographic/ (last visited May 20, 2020).2 If a work
`
`is a periodical, then its publication frequency is recorded in field 310, and the
`
`publication dates (e.g., the first and last publication) are recorded in field 362,
`
`which is also referred to as the enumeration/chronology field. See
`
`
`2 In some MARC records, field 264 is used rather than field 260 to record
`
`publication information. See http://www.loc.gov/marc/bibliographic/bd264.html
`
`(last visited May 20, 2020) (“Information in field 264 is similar to information in
`
`field 260 (Publication, Distribution, etc. (Imprint)). Field 264 is useful for cases
`
`where the content standard or institutional policies make a distinction between
`
`functions”).
`
`- 10 -
`
`
`
`
`
`http://www.loc.gov/marc/bibliographic/bd3xx.html (last visited May 20, 2020).3
`
`27. The library that initially created the MARC record is reflected in field
`
`040 in subfield “a” with that library’s unique library code. See, e.g.,
`
`http://www.loc.gov/marc/umb/um07to10.html (last visited May 20, 2020);
`
`http://www.loc.gov/marc/bibliographic/ (last visited May 20, 2020). Once a
`
`MARC record for a particular work is originally created by one library, other
`
`libraries can use that original MARC record to then create their own MARC
`
`records for their own copies of the same work. These other libraries may modify or
`
`add to the original MARC record as necessary to reflect data specific to their own
`
`
`3 Upwards of two-thirds to three-quarters of book sales to libraries come from a
`
`jobber or wholesaler for online and print resources. These resellers make it their
`
`business to provide books to their customers as fast as possible, often providing
`
`turnaround times of only a single day after publication. Libraries purchase a
`
`significant portion of the balance of their books directly from publishers
`
`themselves, which provide delivery on a similarly expedited schedule. In general,
`
`libraries make these purchases throughout the year as the books are published and
`
`shelve the books as soon thereafter as possible in order to make the books available
`
`to their patrons. Thus, books are generally available at libraries across the country
`
`within just a few days of publication.
`
`- 11 -
`
`
`
`
`
`copies of the work. However, the library that created the original MARC record
`
`would still be reflected in these modified MARC records (corresponding to other
`
`copies of the same work at other libraries) in field 040, subfield “a”. The
`
`modifying library (or libraries) is reflected in field 040, subfield “d”. See
`
`http://www.loc.gov/marc/bibliographic/bd040.html (last visited May 20, 2020).
`
`28.
`
`I consulted the Directory of OCLC Libraries
`
`(http://www.oclc.org/contacts/libraries.en.html; last visited May 20, 2020) in order
`
`to identify the institution that created or modified the MARC record. Moreover,
`
`when viewing the MARC record online via Online Computer Library Center’s
`
`(“OCLC”) bibliographic database, which I discuss further below, hovering over a
`
`library code in field 040 with the mouse reveals the full name of the library. I also
`
`used this method of “mousing over” the library codes in the OCLC database to
`
`identify the originating and modifying libraries for the MARC records discussed in
`
`this report.
`
`29. MARC records also include one or more fields that show information
`
`regarding subject matter classification. For example, 6XX fields are termed
`
`“Subject Access Fields.” See http://www.loc.gov/marc/bibliographic/bd6xx.html
`
`(last visited May 20, 2020). 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 (last visited May 20, 2020).
`
`- 12 -
`
`
`
`
`
`The 650 field is a “[s]ubject added entry in which the entry element is a topical
`
`term.” Id. These entries “are assigned to a bibliographic record to provide access
`
`according to generally accepted thesaurus-building rules (e.g., Library of Congress
`
`Subject Headings (LCSH), Medical Subject Headings (MeSH)).” Id.
`
`30. Further, MARC records can include call numbers, which themselves
`
`contain a classification number. For example, a MARC record may identify a 050
`
`field, which is the “Library of Congress Call Number.” See
`
`http://www.loc.gov/marc/bibliographic/bd050.html (last visited May 20, 2020). A
`
`defined portion of the Library of Congress Call Number is the classification
`
`number, and “source of the classification number is Library of Congress
`
`Classification and the LC Classification-Additions and Changes.” Id. Thus, the 050
`
`field may be used to show information regarding subject matter classification.
`
`31. 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 part 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/bibliographic/bd09x.html
`
`- 13 -
`
`
`
`
`
`(last visited May 20, 2020).
`
`32. When a MARC-compatible library acquires a work, it creates a
`
`MARC record for its copy of the work in its computer catalog system in the
`
`ordinary course of its business. This MARC record (for the copy of a work
`
`available at the particular library) may be later accessed by researchers in a number
`
`of ways. For example, many libraries, including the Library of Congress, make
`
`their MARC records available through their website. As an example, the MARC
`
`record for the copy of The Unlikely Spy, by Daniel Silva,4 available at the Library
`
`of Congress can be viewed through the Library of Congress website, at
`
`https://catalog.loc.gov/vwebv/staffView?searchId=20265&recPointer=1&recCount
`
`=25&bibId=2579985 (last visited May 20, 2020). One could, of course, always
`
`physically visit the library at which the work is available, and request to see that
`
`library’s MARC record for the work. Moreover, members of the Online Computer
`
`Library Center (“OCLC”) can access the MARC records of other member
`
`institutions through OCLC’s online bibliographic database, as I explain further
`
`below.
`
`
`4 The Unlikely Spy is a 1996 novel written by Daniel Silva, who happens to be one
`
`of my favorite authors.
`
`- 14 -
`
`
`
`
`
`B. OCLC
`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
`
`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,
`
`literary, and educational knowledge and information.”5 Among other services,
`
`OCLC and its members are responsible for maintaining the WorldCat database
`
`(http://www.worldcat.org/; last visited May 20, 2020), used by independent and
`
`institutional libraries throughout the world. All libraries that are members of
`
`OCLC are MARC-compatible. See, e.g.,
`
`https://help.oclc.org/Metadata_Services/OCLC-MARC_records/About_OCLC-
`
`MARC_records (last visited May 20, 2020) (“OCLC-MARC records describes
`
`
`5 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`
`Library Center, Incorporated (available at
`
`https://www.oclc.org/content/dam/oclc/membership/articles-of-incorporation.pdf;
`
`last visited May 20, 2020).
`
`- 15 -
`
`
`
`
`
`records produced since November 1993.”);
`
`https://www.oclc.org/support/services/worldcat/documentation/cataloging/electron
`
`icresources.en.html (last visited May 20, 2020) (“Like the two superseded OCLC
`
`documents, this revised set of guidelines is intended to assist catalogers in creating
`
`records for electronic resources in WorldCat, the OCLC Online Union Catalog.
`
`These guidelines pertain to OCLC-MARC tagging (that is, content designation).
`
`Cataloging rules and manuals (such as AACR2) govern the content of records. You
`
`should implement these guidelines immediately.”).
`
`34. When an OCLC member institution acquires a publication, like the
`
`other MARC-compatible libraries discussed above, it creates a MARC record for
`
`this publication in its computer catalog system in the ordinary course of its
`
`business. MARC records created at the Library of Congress are 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
`
`library or is tape-loaded from the Library of Congress, the MARC record is then
`
`made available to any other OCLC members online, and thereby made available to
`
`the public. Accordingly, once the MARC record is created by a cataloger at an
`
`OCLC member library or is tape-loaded from the Library of Congress, any
`
`publication corresponding to the MARC record has been cataloged and indexed
`
`according to its subject matter such that a person interested in that subject matter
`
`- 16 -
`
`
`
`
`
`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 a MARC-compatible library creates an original MARC record
`
`for a work, the library records the date of creation of that MARC record in field
`
`008, characters 00 through 05, in the ordinary course of its business. See
`
`http://www.loc.gov/marc/bibliographic/bd008a.html (last visited May 20, 2020).
`
`For OCLC member institutions that use OCLC software to create original MARC
`
`records, the date of creation in field 008 is automatically supplied by the OCLC
`
`software. The MARC record creation date in field 008 thus reflects the date on
`
`which, or shortly after which, a work was first acquired and cataloged by the
`
`library that created the original MARC record.
`
`36. When other MARC-compatible libraries subsequently acquire their
`
`own copies of the same work, as mentioned, they create MARC records in their
`
`own computer catalog systems for their copies in the ordinary course of business.6
`
`They may use a MARC record previously created for that work (by another
`
`MARC-compatible library) to create their own MARC records for their own copies
`
`
`6 Initial contributions to the bibliographic database for a work are called “master
`
`records.”
`
`- 17 -
`
`
`
`
`
`of that same work.7 The previously created MARC record used by subsequently-
`
`acquiring libraries to create MARC records for their own copies may be obtained
`
`through the OCLC bibliographic database, as described above. If, when creating a
`
`MARC record to represent its own copy of the work, the subsequently-acquiring
`
`library uses the master MARC record in its original form, the subsequently-
`
`acquiring library cannot reenter data into the 008 field; therefore, the date in the
`
`008 field will continue to reflect the date the MARC record was initially created by
`
`the originating library. On the other hand, if the subsequently-acquiring library
`
`modifies the previously created MARC record when creating its own MARC
`
`record for its own copy of the work, the subsequently-acquiring library may enter
`
`into the 008 field of its own MARC record the date its own MARC record was
`
`created.8 But the library that created the original MARC record used by the
`
`
`7 When a local library uses a master record in OCLC and produces (or downloads)
`
`it to the in-house system, the three-character symbol for the subsequent library is
`
`added to the holdings for the work.
`
`8 This practice is not required by, but is nevertheless consistent with, the MARC
`
`standard. Many MARC records exist today whose 008 fields indicate when the first
`
`original MARC record for a work was created, rather than when a derivative
`
`- 18 -
`
`
`
`
`
`subsequently-acquiring library would still be reflected in the MARC record of the
`
`subsequently-acquiring library in field 040, subfield “a”. Thus, the work identified
`
`by any MARC record possessed by any MARC-compatible library would have
`
`been accessible to the public at least as of the date shown in the 008 field, or
`
`shortly thereafter, either from the library that possesses the MARC record itself, or
`
`from the originating library indicated in field 040, subfield “a”. As discussed, a
`
`MARC-compatible library in the ordinary course of its business creates a MARC
`
`record in its own catalog system for a work when it acquires a copy of that work.
`
`37. Moreover, when a MARC record is created by a library for its own
`
`copy of a work, field 005 is automatically populated with the date that MARC
`
`record was created in year, month, day format (YYYYMMDD). See
`
`http://www.loc.gov/marc/bibliographic/bd005.html (last visited May 20, 2020).9
`
`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
`
`
`record was created based on the original MARC record by a subsequently-
`
`acquiring library for its own computer catalog system.
`
`9 Some of the newer library catalog systems also include hour, minute, second
`
`(HHMMSS).
`
`- 19 -
`
`
`
`
`
`item has been moved to a different shelving location within the library). Id.10 Thus,
`
`the work identified by any MARC record possessed by any MARC-compatible
`
`library would have been accessible to the public at least as of the date shown in the
`
`005 field, or shortly thereafter, from the library that possesses the MARC record
`
`itself. As noted, because the 005 field may be updated each time the library
`
`updates its MARC record, the work identified by the MARC record may, in fact,
`
`have been accessible to the public from that library much earlier than the date
`
`indicated in the 005 field.
`
`38. Moreover, MARC records for copies of works available at the Library
`
`of Congress can have a 955 field. See
`
`http://www.loc.gov/cds/PDFdownloads/dcm/DCM_2007-03.pdf (last visited May
`
`20, 2020). The 955 field in MARC records obtained from the Library of Congress
`
`provides Local Tracking Information, which is a record of internal steps in the
`
`cataloging process followed by the Library of Congress. Id. Entries in the 955 field
`
`for a particular work are generated by Library of Congress staff as the work
`
`
`10 Field 005 is visible when viewing a MARC record via an appropriate
`
`computerized interface. But when a MARC record is printed directly to hardcopy
`
`from the OCLC database, the “005” label is not shown. The date in the 005 field
`
`instead appears next to the label “Replaced.”
`
`- 20 -
`
`
`
`
`
`progresses through the cataloging process. Id. One of the mandatory fields that
`
`library staff must enter for each step is the date (in the form of “yyyy-mm-dd” or
`
`“yy-mm-dd”) the step was taken. Id. Thus, the work identified by a MARC record
`
`possessed by the Library of Congress would have been accessible to the public at
`
`least as of the earliest date shown in the 955 field, or shortly thereafter, from the
`
`Library of Congress.
`
`39. Based on my personal experience as a professional librarian using the
`
`MARC and OCLC resources, it has been my experience that both of these
`
`resources were continuously operational and available since at least 1992. Indeed,
`
`in the course of my work, I have extensively used both of these resources over the
`
`past 30+ years, and I have consistently found the information contained within
`
`these resources to be complete and reliable. I have never found the date of
`
`accessibility as indicated in fields 008, 005, or 955 to be incorrect. And in only a
`
`minute number of cases have I found any errors at all in these records – none of
`
`which affected my ability to render an accurate opinion as to accessibility,
`
`indexing, or subject headings.
`
`V.
`
`PUBLICATION IN THIS PROCEEDING
`Thermoforming: A Plastics Processing Guide, 2nd ed., by Geza
`A.
`Gruenwald (Exhibit 1007)
`40. Exhibit 1007 is a book, Thermoforming: A Plastics Processing
`
`Guide, 2nd ed., by Geza Gruenwald (hereafter “Gruenwald”) and issued by
`
`- 21 -
`
`
`
`
`
`Technomic Publishing Company, Inc. in 1998. Exhibit 1007 is a true and correct
`
`copy of the title page, copyright page, table of contents, foreword, preface, 12
`
`chapters, appendices, and index. I obtained this book from counsel and Exhibit
`
`1007 is a copy. Specifically, the text of Exhibit 1007 is complete; no pages are
`
`missing, and the text on each page appears to flow seamlessly from one page to the
`
`next; further, there are no visible alterations to the document. Exhibit 1007 is a true
`
`and correct copy in a condition that creates no suspicion about its authenticity.
`
`41. The print version of the book, Thermoforming: A Plastics Processing
`
`Guide, 2nd ed., by Geza Gruenwald was published on May 14, 1998, as indicated
`
`on the U.S. Copyright Office registration number TX0004708643 which was
`
`issued on June 29, 1998 (see Attachment A1). For these reasons, it is my opinion
`
`that Exhibit 1007 was published and accessible to the public at least by June 29,
`
`1998.
`
`42. Attached hereto as Attachment A2 is a true and correct copy of the
`
`MARC record for this monograph from the OCLC bibliographic database. I
`
`personally identified and retrieved the MARC record that is Attachment A2. As
`
`previously noted, the library that created the record is recorded in field 040 with a
`
`unique library code. For Attachmen
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
