UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT & BMW OF
`
`NORTH AMERICA,LLC,
`
`Vv.
`
`PAICE LLC & The ABELL FOUNDATION, INC.,
`Patent Owner
`
`Patent Case Review No.: To Be Assigned
`U.S. Patent No. 8,630,761
`
`
`
`DECLARATIONOF SYLVIA HALL-ELLIS, PH.D. IN SUPPORT OF
`PETITION
`
`BMW1055
`Page 1 of 142
`
`BMW1055
`Page 1 of 142
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`BAYERISCHE MOTOREN WERKE AKTIENGESELLSCHAFT & BMW OF
`
`NORTH AMERICA,LLC,
`
`Vv.
`
`PAICE LLC & The ABELL FOUNDATION, INC.,
`Patent Owner
`
`Patent Case Review No.: To Be Assigned
`U.S. Patent No. 8,630,761
`
`
`
`DECLARATIONOF SYLVIA HALL-ELLIS, PH.D. IN SUPPORT OF
`PETITION
`
`BMW1055
`Page 1 of 142
`
`BMW1055
`Page 1 of 142
`
`
`
`I, Sylvia D. Hall-Ellis, Ph.D., declare as follows:
`
`I.
`
`INTRODUCTION
`
`l.
`
`My nameis Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`Bayerische Motoren Werke Aktiengesellschaft and BMW of North America, LLC
`
`(“BMW”) whoI am informedare the Petitioners to this inter partes review (IPR)
`
`proceeding.
`
`2.
`
`[ have written this declaration at the request ofthe Petitioners to
`
`provide my expert opinion regarding the authenticity and public availability of the
`
`publication identified in Section V below. My declaration sets forth my opinions in
`
`detail and providesthe basis for my opinions regarding the authenticity and public
`
`availability ofthis publication.If called to testify in the above-captioned matter, |
`
`will testify with regard to the opinions andbases set forth below.
`
`3.
`
`[ reserve the right to supplement or amend myopinions, and bases for
`
`them, in response to any additional evidence, testimony, discovery, argument,
`
`and/or other additional information that may be provided to meafter the date of
`
`this declaration.
`
`4,
`
`Asof the preparation and signing ofthis declaration,libraries across
`
`the nation are closed pursuantto an order ofthe federal andstate governments due
`
`to the COVID-19 virus. However, were the libraries open, I would expect to be
`
`able to obtain paper copies of the documentsin this declaration. Additionally, it is
`
`-l|-
`
`BMW1055
`Page 2 of 142
`
`BMW1055
`Page 2 of 142
`
`
`
`mytypicalpractice to obtain a paper copy of each publication to further confirm
`
`myopinions. | reserve the right to supplement my declaration whenthelibraries
`
`reopen to provide such information. Libraries are not fully open; therefore, getting
`
`materials remains a challenge. The bookin this proceedingis available from the
`
`British Library — which is closed. The Governor of Colorado has issued a return to
`
`morerestrictions, stay at home guidance, and required wearing of masks.
`
`5.
`
`I am being compensated for my time spent working on this matterat
`
`my normalconsulting rate of $300 per hour, plus reimbursementfor any additional
`
`reasonable expenses. My compensationis not in any waytied to the contentofthis
`
`report, the substance of my opinions, or the outcomeofthis proceeding. I have no
`
`otherinterests in this proceeding or with anyoftheparties.
`
`6.
`
`All of the materials that I considered and relied upon are discussed
`
`explicitly in this declaration.
`
`Il,
`
`QUALIFICATIONS
`
`te
`
`Iam currently an Adjunct Professor in the School of Information at
`
`San José State University in San José, California. | 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. Overthelast fifty years, I have held
`
`various positions in thefield of library and information resources. I wasfirst
`
`employedas a librarian in 1966 and have been involved in thefield oflibrary
`
`= Di =
`
`BMW1055
`Page 3 of 142
`
`BMW1055
`Page 3 of 142
`
`
`
`sciences since, holding numerouspositions.
`
`8.
`
`[am a memberof the American Library Association (ALA)andits
`
`Association for Library Collections & Technical Services (ALCTS)Division,and I
`
`served on the Committee on Cataloging: Resource and Description (which wrote
`
`the new catalogingrules) and as the chair of the Committee for Education and
`
`Training of Catalogers and the Competencies and Education for a Careerin
`
`Cataloging Interest Group.I also served as the Chair of the ALCTSDivision’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 memberofthe Editorial Board for the ALCTS premier
`
`cataloging journal, Library Resources and Technical Services.
`
`o.
`
`I have also given over one hundred presentationsin thefield,
`
`including several onlibrary cataloging systems and Machine-Readable Cataloging
`
`(“MARC”)standards. My current researchinterests include library cataloging
`
`systems, metadata, and organization ofelectronic resources.
`
`10.
`
`I have been deposedeleven 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. F.injan, Inc.,
`
`14-cv-299-HSG (N.D.Cal.), on behalf of Symantec Corp., September14,
`
`-3-
`
`BMW1055
`Page 4 of 142
`
`BMW1055
`Page 4 of 142
`
`
`
`2017; (3) one deposition for ten matters: Intellectual Ventures I LLC vs. AT&T
`
`Mobility LLC; 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); Intellectual Ventures II LLC vs. AT&T Mobility LLC; AT&T Mobility I
`
`LLC, New Cingular Wireless Services, Inc., SBC Internet Services, Inc., Wayport,
`
`Inc., and Cricket Wireless LLC, C.A. No. 13-1631 (LPS); Intellectual Ventures I
`
`LLC vs. T-Mobile USA, Ine. 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
`
`(LPS); Intellectual Ventures II LLC vs. Nextel Operations, Inc., Sprint Spectrum
`
`L.P., Boost Mobile, LLC and Virgin Mobile USA, L.P., C.A. No. 13-1635 (LPS);
`
`Intellectual Ventures I LLC, vs. United States Cellular Corporation, C.A. No. 13-
`
`1636 (LPS); Intellectual Ventures I LLC vs. United States Cellular Corporation,
`
`C.A. No. 13-1637 (LPS); Intellectual Ventures II LLC vs. AT&T Mobility LLC,
`
`AT&T Mobility II LLC, New Cingular Wireless Services, Inc., C.A. No. 15-799
`
`(LPS); Intellectual Ventures I LLC vs. T-Mobile USA, Inc. and T-Mobile US. Inc.,
`
`C.A. No. 15-800 (LPS), on behalf of AT&T Mobility LLC; AT&T Mobility II
`
`LLC, Boost Mobile, LLC Cricket Wireless LLC, Nextel Operations, Inc., New
`
`Cingular Wireless Services, Inc., SBC Internet Services, Inc., Sprint Spectrum
`
`-4-
`
`BMW1055
`Page 5 of 142
`
`BMW1055
`Page 5 of 142
`
`
`
`L.P., T-Mobile USA,Inc., T-Mobile US,Inc., United States Cellular Corporation
`
`Virgin Mobile USA,L.P., and Wayport, Inc., November 15, 2016; (4) Hitachi
`
`Maxell, LTD., v. Top Victory Electronics (Taiwan) Co. Ltd., et al., 2:14-cv-1121
`
`JRG-RSP (E.D. Texas), on behalf of Top Victory Electronics (Taiwan) Co. LTD,
`
`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-
`
`cv-00545; on behalf of Vizio, Inc., October 12, 2018; (7) Intellectual Ventures I
`
`LLC, vs. T-Mobile USA, Inc., T-Mobile US, Inc., Ericsson Inc., and
`
`Telefonaktiebolaget LMEricsson, 2:17-cv-00557 (JRG), on behalf of T-Mobile
`
`USA,Inc., T-Mobile US,Inc., Ericsson Inc., and Telefonaktiebolaget LM
`
`Ericsson, October 19, 2018; (8) Pfizer, Inc. vs. Biogen, Inc., Petition for Inter
`
`Partes Review of U.S. Patent No. 8,821,873, on behalf of Pfizer, November 3,
`
`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; (10) Finjan, Inc. vs. Cisco
`
`Systems, Inc., 5:17-cv-00072-BLF-SVK,on behalf of Cisco Systems, Inc.,
`
`September 6, 2019; and, (11) Facebook, Inc., Instagram, LLC and Whatsapp Inc.
`
`vs. Blackberry Limited, Petition for Inter Partes Review of U.S. Patent No.
`
`9,349,120 B2, on behalf of Facebook, Inc., Instagram, LLC and WhatsappInc.
`
`December 20, 2019.
`
`-5-
`
`BMW1055
`Page6 of 142
`
`BMW1055
`Page 6 of 142
`
`
`
`11.
`
`Myfull curriculum vitae is attached hereto as Attachment1.
`
`If.
`
`PRELIMINARIES
`
`A.
`
`12.
`
`Scope of Declaration and Legal Standards
`
`[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
`
`skilled in the subject matter or art, exercising reasonable diligence, could have
`
`located the documentsbefore the dates discussed below with respect to the specific
`
`documents.
`
`13.
`
`Iam 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
`
`couldlocateit through the exercise of ordinary diligence.
`
`14. While I understandthat 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 understandthat 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 locateit (i.e., | understand that
`
`cataloging and indexingbya library is sufficient, though there are other waysthat
`
`-6-
`
`BMW1055
`Page 7 of 142
`
`BMW1055
`Page 7 of 142
`
`
`
`a printed publication may qualify as publicly accessible). One mannerofsufficient
`
`indexing is indexing according to subject matter category. I understand that the
`
`cataloging and indexing byasingle library of a single instance ofa 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
`
`subject matter would know oftheprinted 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 ofan abstract for the printed publication, is sufficient to render the
`
`printed publication publicly accessible.
`
`15.
`
`I understandthat routine business practices, such as general library
`
`cataloging and indexing practices, can be used to establish an approximate date on
`
`whicha printed publication becamepublicly accessible.
`
`B.
`
`16.
`
`Persons of Ordinary Skill in the Art
`
`I am told by counsel that the subject matter of this proceeding
`
`generally relates to relates to the control of hybrid vehicles.
`
`17.
`
`I have been informed by counselthat a “person of ordinary skill in the
`
`art at the timeof the invention” (POSITA)is a hypothetical person whois
`
`-7-
`
`BMW1055
`Page8 of 142
`
`BMW1055
`Page 8 of 142
`
`
`
`presumedto be familiar with the relevantfield and its literature at the time of the
`
`inventions. This hypothetical person is also a person ofordinary creativity, capable
`
`of understandingthe scientific principles applicable to the pertinent field.
`
`18.
`
`I have been informed that a POSAin the art of the ’761 patent would
`
`have either: (1) a graduate degree in mechanical, electrical or automotive
`
`engineering with at least some experience in the design and control of combustion
`
`engines,electric or hybrid electric vehicle propulsion systems, or design and
`
`control of automotive transmissions, or (2) a bachelor’s degree in mechanical,
`
`electrical or automotive engineering andat least five years of experience in the
`
`design of combustion engines, electric vehicle propulsion systems, or automotive
`
`transmissions. 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 knownin the art relating to these fields, including the publications
`
`discussedin this declaration.
`
`Cc,
`
`Use of Authoritative Databases
`
`19.
`
`In preparing this report, I used authoritative databases, such as the
`
`OCLCbibliographic 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 thatthis
`
`standard protocol was followedfor the publications discussed in Section V below.
`
`-8-
`
`BMW1055
`Page 9 of 142
`
`BMW1055
`Page 9 of 142
`
`
`
`20.
`
`Indexing. A researcher may discover material relevant to his or her
`
`topic in a variety of ways. One common meansofdiscovery 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 purchaseit from the publisher, a bookstore, a documentdelivery
`
`service, or other provider. Sometimes, the date of a document’s public accessibility
`
`will involve both indexing and library date information.
`
`21.
`
`Indexing services use a wide variety of controlled vocabularies to
`
`provide subject access and other meansof discovering the content of documents.
`
`The formats in which these access termsare presented vary from serviceto service.
`
`22. 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 documentscited in the indexed publication.
`
`These services also often provide lists of publicationsthat cite a given document.
`
`A citation of a documentis evidence that the document waspublicly available and
`
`in use by researchers nolater than the publication date of the citing document.
`
`23.
`
`Google Scholar. Google Scholar'is a freely accessible web search
`
`engine that indexesthe full text or metadata of scholarly literature across an array
`
`of publishing formats anddisciplines. Released in beta in November 2004, the
`
`' https://scholar.google.com
`
`-9-
`
`BMW1055
`Page 10 of 142
`
`BMW1055
`Page 10 of 142
`
`
`
`Google Scholar index includes a significant number of peer-reviewed
`
`online academic journals, books, conference papers, selected theses and
`
`dissertations, preprints, abstracts, technical reports, and other scholarly
`
`literature. While Google does not publish the size of Google Scholar's database,
`
`scientometric researchers estimated it to contain roughly 389 million documents
`
`including articles, citations and patents makingit the world's largest academic
`
`search engine in January 2018.
`
`24.
`
`Because many of Google Scholar's searchresults link to commercial
`
`journalarticles, searchers will be able to access only an abstract and the citation
`
`details of an article and may have to payafee to access the entire article. The most
`
`relevant results for the searched keywordswill be listedfirst, in order ofthe
`
`author's ranking, the numberofreferencesthatare linkedto it and their relevance
`
`to other scholarly literature, and the ranking of the publication that the journal
`
`appears in. Throughits "cited by" feature, Google Scholar provides accessto
`
`abstracts ofarticles that have cited the article being viewed. Throughits "Related
`
`articles" feature, Google Scholarpresentsa list of closely related articles, ranked
`
`primarily by how similar these articles are to the original result, but also taking into
`
`accountthe relevance of each paper.
`
`-10-
`
`BMW1055
`Page 11 of 142
`
`BMW1055
`Page 11 of 142
`
`
`
`IV.
`
`LIBRARY CATALOGING PRACTICES
`
`A.
`
`MARCRecords and OCLC
`
`25.
`
`lam fully familiar with the library cataloging standard knownasthe
`
`MARCstandard, whichis an industry-wide standard method of storing and
`
`organizing library catalog information. MARC wasfirst developed in the 1960’s
`
`by the Library of Congress. A MARC-compatible library is one that has a catalog
`
`consisting of individual MARCrecords for works madeavailable at that library.
`
`26.
`
`Since at least the early 1970s and continuingto the present day,
`
`MARChasbeen the primary communications protocol for the transfer and storage
`
`of bibliographic metadata in libraries.” As explained by the Library of Congress:
`
`You could devise your own methodoforganizing the bibliographic
`
`information, but you would beisolating yourlibrary, limiting its options,
`
`and creating much more work for yourself. Using the MARCstandard
`
`prevents duplication of work and allowslibraries to better share
`
`bibliographic resources. Choosing to use MARCenableslibraries to acquire
`
`cataloging data that is predictable andreliable. If a library were to develop a
`
`“home-grown” system that did not use MARCrecords, it would not be
`
`* 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
`t?id=mdp.39015034388556;view=1up:seq=1; last
`visited May 20, 2020).
`
`-ll-
`
`BMW1055
`Page 12 of 142
`
`BMW1055
`Page 12 of 142
`
`
`
`taking advantage of an industry-wide standard whose primary purposeis to
`
`foster communication of information.
`
`Using the MARCstandard also enableslibraries to make use of
`
`commercially available library automation systems to managelibrary
`
`operations. Many systemsare available forlibrariesof all sizes and are
`
`designed to work with the MARCformat. Systems are maintained and
`
`improved by the vendorsothatlibraries can benefit from the latest advances
`
`in computer technology. The MARCstandardalso allowslibraries to replace
`
`one system with another with the assurancethat their data will still be
`
`compatible.
`
`WhyIs a MARCRecord Necessary? LIBRARY OF CONGRESS.?
`
`27.
`
`Thus, almost every majorlibrary in the world is MARC-compatible.
`
`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS.‘
`
`(“MARCis the acronym for MAchine-Readable Cataloging.It defines a data
`
`format that emerged from a Library of Congress-ledinitiative 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 mostlibrary catalogs used today.”). MARCis the ANSI/NISO
`
`° http://www.loc.gov/mare/umb/um01to06.html#part2
`* https://www.loc.gov/mare/fag.html
`
`-|12-
`
`BMW1055
`Page 13 of 142
`
`BMW1055
`Page 13 of 142
`
`
`
`Z39,2-1994 standard (reaffirmed in 2016) for Information Interchange Format. The
`
`full text of the standardis available from the Library of Congress.>
`
`28.
`
`AMARCrecord comprisesseveral fields, each of which contains
`
`specific data about the work. Eachfield is identified by a standardized, unique,
`
`three-digit code correspondingto the type of data that follow.® For example, a
`
`work’s title is recorded in field 245, the primary author of the workis 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 underthesubfield “c.” 7
`
`In some MARCrecords, field 264 is used rather than field 260 to record
`
`publication information.® Informationin field 264 is similar to informationin field
`
`260 (Publication, Distribution, etc. (Imprint)). Field 264 is useful for cases where
`
`the content standard orinstitutional policies make a distinction between functions.
`
`If a workis a periodical, then its publication frequency is recorded in field 310, and
`
`the publication dates (e.g., the first and last publication) are recordedin field 362,
`
`> http://www.loc.gov/mare/bibliographic/
`° http://www.loc.gov/mare/umb/um07to10.html:
`http://www.loc.gov/marc/bibliographic/
`” http://www.loc.gov/mare/bibliographic/
`* http://www.loc.gov/mare/bibliographic/bd264.html
`
`-13-
`
`BMW1055
`Page 14 of 142
`
`BMW1055
`Page 14 of 142
`
`
`
`whichis also referred to as the enumeration/chronologyfield.”!°
`
`29.
`
`Thelibrary that initially created the MARCrecordis reflected in field
`
`040 in subfield “a” with that library’s unique library code.'!' Once a MARCrecord
`
`for a particular workis originally created by onelibrary, other libraries can use that
`
`original MARCrecord to then create their own MARCrecordsfor their own
`
`copies of the same work. These other libraries may modify oraddto the original
`
`MARCrecordas necessary to reflect data specific to their own copies of the work.
`
`However, the library that created the original MARCrecord would still be
`
`reflected in these modified MARCrecords (corresponding to other copies of the
`
`same workat other libraries) in field 040, subfield “a”. The modifying library (or
`
`libraries) is reflected in field 040, subfield “d.”!?
`
`30.
`
`I consulted the Directory of OCLC Libraries'? in order to identify the
`
`” http://www.loc.gov/mare/bibliographic/bd3xx.html
`'° Upwardsof two-thirds to three-quarters of book salesto libraries come from a
`jobber or wholesalerfor online and print resources. These resellers makeit their
`business to provide books to their customersas fast as possible, often providing
`turnaroundtimesof only a single day after publication. Libraries purchase a
`significantportion ofthe balance oftheir books directly from publishers
`themselves, whichprovide delivery on a similarly expedited schedule.In general,
`libraries make these purchases throughoutthe yearas the books are published and
`shelve the books assoon thereafter as possible in order to make the booksavailable
`to their patrons. Thus, booksare generally available at libraries across the country
`within just a few daysof publication.
`'! http://www.loc.gov/marc/umb/um07to10.html:
`http://www.loc.gov/mare/bibliographic/
`'* http://www.loc.gov/mare/bibliographic/bd040.html
`3 http://www.oclc.org/contacts/libraries.en.html
`
`-14-
`
`BMW1055
`Page 15 of 142
`
`BMW1055
`Page 15 of 142
`
`
`
`institution that created or modified the MARCrecord. Moreover, when viewing the
`
`MARCrecord online via Online Computer Library Center’s (“OCLC”)
`
`bibliographic database, which I discuss further below, hovering overa library code
`
`in field 040 with the mousereveals the full nameofthelibrary. I also used this
`
`method of “mousing over” the library codes in the OCLC databaseto identify the
`
`originating and modifying libraries for the MARCrecordsdiscussed in this report.
`
`31.
`
`MARCrecordsalso include one or more fields that show information
`
`regarding subject matter classification. For example, 6XX fields are termed
`
`“Subject Access Fields.”'* Amongthese, for example,is the 650 field; this is the
`
`“Subject Added Entry — Topical Term”field.'> The 650 field is a “[s]ubject added
`
`entry in whichthe entry elementis a topical term.” Jd. These entries “are assigned
`
`to a bibliographic record to provide access according to generally accepted
`
`thesaurus-buildingrules (e.g., Library ofCongress Subject Headings (LCSH),
`
`Medical Subject Headings (MeSH)).”Id.
`
`32.
`
`Further, MARCrecords can include call numbers, which themselves
`
`contain a classification number. For example, a MARCrecord mayidentify a 050
`
`field, whichis the “Library of Congress Call Number.”!® A defined portion ofthe
`
`Library of Congress Call Numberis the classification number, and “source of the
`
`'* http://www.loc.gov/mare/bibliographic/bd6xx.html
`'> http://www.loc.gov/mare/bibliographic/bd650.html
`16 http://www.loc.gov/mare/bibliographic/bd050.html
`
`«14 =
`
`BMW1055
`Page 16 of 142
`
`BMW1055
`Page 16 of 142
`
`
`
`classification numberis Library ofCongress Classification and the LC
`
`Classification-Additions and Changes.” Id. Thus, the 050 field may be used to
`
`show information regarding subject matter classification. Further, the 082 field is
`
`the “Dewey Decimal Call Number.”'’ A defined portion of the Dewey Decimal
`
`Call (DDC) Numberis the classification number, and “source ofthe classification
`
`numberis the Dewey Decimal Classification and Relative Index. Thus, included in
`
`the 082 field is a subject matter classification.
`
`
`
`33. Hach item inalibrary hasasingle 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 DecimalClassification
`
`scheme)and uses it consistently. When the Library of Congressassigns the
`
`classification number,it appears as part of the 050 field, as discussed above. For
`
`MARCrecords created by libraries other than the Library of Congress(e.g., a
`
`university library or a local public library), the classification number may appearin
`
`a 09X (e.g., 090) field.!8
`
`34. When a MARC-compatible library acquires a work, it creates a
`
`MARCrecordfor its copy of the work in its computer catalog system in the
`
`ordinary course ofits business. This MARCrecord (for the copy of a work
`
`'7 http:/Avww.loc.gov/mare/bibliographic/bd082.html.
`'§ http://www.loc.gov/marc/bibliographic/bd09x.html
`
`«16 -
`
`BMW1055
`Page 17 of 142
`
`BMW1055
`Page 17 of 142
`
`
`
`available at the particular library) may be later accessed by researchers in a number
`
`of ways. For example, manylibraries, including the Library of Congress, make
`
`their MARCrecordsavailable through their website. As an example, the MARC
`
`record for the copy of The Unlikely Spy, by DanielSilva,’ 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 workis available, and requestto see that
`
`library’s MARCrecord for the work. Moreover, members of the Online Computer
`
`Library Center (“OCLC”) can access the MARCrecords of other member
`
`institutions through OCLC’s online bibliographic database, as I explain further
`
`below.
`
`B.
`
`OCLC
`
`35.
`
`The OCLC wascreated “to establish, maintain, and operate a
`
`computerized library network and to promote the evolution oflibrary use, of
`
`libraries themselves, and of librarianship, and to provide processes and products
`
`for the benefit of library users andlibraries, including such objectives as increasing
`
`availability of library resources to individuallibrary patrons and reducingtherate
`
`" The Unlikely Spy is a 1996 novel written by Daniel Silva, who happensto be one
`of my favorite authors.
`
`-17-
`
`BMW1055
`Page 18 of 142
`
`BMW1055
`Page 18 of 142
`
`
`
`ofrise 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 worldwidescientific,
`
`literary, and educational knowledge and information.”*° Amongotherservices,
`
`OCLCand its membersare responsible for maintaining the WorldCat database,”!
`
`used by independentandinstitutional libraries throughout the world. All libraries
`
`that are members of OCLC are MARC-compatible.?” OCLC-MARCrecords
`
`describes records produced since November 1993.7? Like the two superseded
`
`OCLC documents,this revised set of guidelines is intended to assist catalogers in
`
`creating recordsfor electronic resources in WorldCat, the OCLC Online Union
`
`Catalog. These guidelines pertain to OCLC-MARCtagging(that is, content
`
`designation). Cataloging rules and manuals (such as AACR2) govern the content
`
`of records. You should implementthese guidelines immediately.
`
`36. When an OCLC memberinstitution acquires a publication,like the
`
`other MARC-compatible libraries discussed above,it creates a MARCrecord for
`
`* Third Article, AmendedArticles 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).
`*! http://www.worldcat.org/
`2 https://help.oclc.org/Metadata Services/OCLC-MARCrecords/About OCLC-
`MARCrecords
`23
`
`https://www.oclc.org/support/services/worldcat/documentation/cataloging/electron
`icresources.en.html
`
`-18-
`
`BMW1055
`Page 19 of 142
`
`BMW1055
`Page 19 of 142
`
`
`
`this publication in its computer catalog system in the ordinary course ofits
`
`business. MARCrecordscreated at the Library of Congressare tape-loaded into
`
`the OCLC database through a subscription to MARCDistribution Services daily or
`
`weekly. Once the MARCrecordis created by a cataloger at an OCLC member
`
`library or is tape-loaded from the Library of Congress, the MARCrecordis then
`
`madeavailable to any other OCLC membersonline, and thereby made available to
`
`the public. Accordingly, once the MARCrecordis created by a catalogerat an
`
`OCLC memberlibrary or is tape-loaded from the Library of Congress, any
`
`publication corresponding to the MARCrecord has been cataloged and indexed
`
`according to its subject matter such that a person interested in that subject matter
`
`could, with reasonablediligence, locate and accessthe publication through any
`
`library with access to the OCLC bibliographic database or through the Library of
`
`Congress.
`
`37. When aMARC-compatible library creates an original MARC record
`
`for a work, the library records the date ofcreation of that MARCrecordin field
`
`008, characters 00 through 05, in the ordinary course of its business.24 For OCLC
`
`memberinstitutions that use OCLC software to create original MARCrecords, the
`
`date of creation in field 008 is automatically supplied by the OCLC software. The
`
`MARCrecordcreation date in field 008 thusreflects the date on which, or shortly
`
`** http://www.loc.gov/mare/bibliographic/bd008a.html
`
`- 19-
`
`BMW1055
`Page 20 of 142
`
`BMW1055
`Page 20 of 142
`
`
`
`after which, a work wasfirst acquired and cataloged by the library that created the
`
`original MARC record.
`
`38. When other MARC-compatible libraries subsequently acquire their
`
`own copies of the same work, as mentioned, they create MARCrecordsin their
`
`own computercatalog systemsfor their copies in the ordinary course of business.”5
`
`They may use a MARCrecord previously created for that work (by another
`
`MARC-compatible library) to create their own MARCrecordsfor their own copies
`
`of that same work.”° The previously created MARCrecord used by subsequently-
`
`acquiring libraries to create MARCrecords for their own copies may be obtained
`
`through the OCLC bibliographic database, as described above. If, when creating a
`
`MARCrecord to represent its own copy of the work, the subsequently-acquiring
`
`library uses the master MARCrecordinits original form, the subsequently-
`
`acquiring library cannot reenter data into the 008field; therefore, the date in the
`
`008 field will continueto reflect the date the MARCrecord wasinitially created by
`
`the originating library. On the other hand, if the subsequently-acquiringlibrary
`
`modifies the previously created MARCrecord whencreating its own MARC
`
`record for its own copy of the work, the subsequently-acquiring library may enter
`
`* Initial contributionsto the bibliographic database for a workare called “master
`records.”
`*6 Whena locallibrary uses a master record in OCLC and produces (or downloads)
`it to the in-house system, the three-character symbol for the subsequentlibrary is
`added to the holdings for the work.
`
`- 20 -
`
`BMW1055
`Page 21 of 142
`
`BMW1055
`Page 21 of 142
`
`
`
`into the 008 field of its own MARCrecord the date its own MARCrecord was
`
`created.”’ But the library that created the original MARCrecord usedbythe
`
`subsequently-acquiring library would still be reflected in the MARC record ofthe
`
`subsequently-acquiring library in field 040, subfield “a”. Thus, the work identified
`
`by any MARCrecord possessed by any MARC-compatible library would have
`
`been accessible to the public at least as of the date shownin the 008field, or
`
`shortly thereafter, either from the library that possesses the MARCrecorditself, 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 whenit acquires a copy of that work.
`
`39. Moreover, when a MARCrecordis created byalibrary for its own
`
`copy of a work,field 005 is automatically populated with the date that MARC
`
`record wascreated in year, month, day format (YYYYMMDD).”* Thereafter, the
`
`library’s computer system may automatically update the date in field 005 every
`
`time the library updates the MARCrecord(e.g., to reflect that an item has been
`
`*’ This practice is not required by, but is nevertheless consistent with, the MARC
`standard. Many MARCrecords exist today whose 008fields indicate whenthefirst
`original MARCrecord for a work wascreated, rather than when a derivative
`record wascreated based on the original MARCrecord by a subsequently-
`acquiring library for its own computer catalog system.
`*8 http://www.loc.gov/mare/bibliographic/bd005.html
`
`- 2] -
`
`BMW1055
`Page 22 of 1
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
