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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`LIQUIDIA TECHNOLOGIES, INC.,
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`Petitioner
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`v.
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`UNITED THERAPEUTICS CORPORATION,
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`Patent Owner
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`
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`U.S. Patent No. 10,716,793 B2
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`Issue Date: July 21, 2020
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`
`Title: Treprostinil Administration By Inhalation
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`
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`DECLARATION OF SYLVIA HALL-ELLIS, PH.D.
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`Liquidia's Exhibit 1036
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`Table of Contents
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`Page
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` I.
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`II.
`III.
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`INTRODUCTION .......................................................................................... 1
`QUALIFICATIONS ....................................................................................... 2
`PRELIMINARIES .......................................................................................... 3
`A.
`Scope of Declaration and Legal Standards .......................................... 3
`B.
`Persons of Ordinary Skill in the Art ..................................................... 5
`C.
`Use of Authoritative Databases ............................................................ 6
`D.
`Summary of Opinions .......................................................................... 9
`IV. LIBRARY CATALOGING PRACTICES ..................................................... 9
`A. MARC Records and OCLC .................................................................. 9
`B.
`Journals ............................................................................................... 21
`PUBLICATIONS IN THIS PROCEEDING ................................................ 23
`A. Ghofrani [Exhibit B] .......................................................................... 23
`B.
`Remodulin® label [Exhibit C] ............................................................ 28
`C.
`Voswinckel 2004a (a.k.a. Voswinckel JAHA) [Exhibit D] ............... 30
`D. Voswinckel 2004b (a.k.a. Voswinckel JESC) [Exhibit E] ................ 36
`E.
`Voswinckel 2006 [Exhibit F] ............................................................. 41
`VI. CONCLUSION ............................................................................................. 46
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`V.
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`I, Sylvia D. Hall-Ellis, Ph.D., declare as follows:
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`I.
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`INTRODUCTION
`1. My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
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`Liquidia Technologies, Inc., who I am informed is a petitioner to this IPR proceeding
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`(“the Petitioner”).
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`2.
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`I have written this declaration at the request of the Petitioner to provide
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`my expert opinion regarding the public availability of a number of publications,
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`identified below. My Declaration sets forth my opinions in detail and provides the
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`basis for my opinions 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 to any additional evidence, testimony, discovery, argument, and/or
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`other additional information that may be provided to me after the date of this
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`Declaration.
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`4.
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`As of the preparation and signing of this declaration, many libraries
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`across the nation are closed or permit only limited access due to the COVID-19 virus.
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`However, were the libraries open, I would expect to be able to obtain paper copies
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`of at least some of the documents in this declaration. Additionally, it is my typical
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`practice to obtain a paper copy of each publication to further confirm my opinions
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`that the documents were available prior to the alleged priority date of the patent at
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`issue. I reserve the right to supplement my declaration when the libraries reopen to
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`provide such information.
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`5.
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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 litigation. I have no
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`other interests in this proceeding or with any of the parties.
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`6.
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`All of the materials that I considered and relied upon are discussed
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`explicitly in this declaration.
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`II. QUALIFICATIONS
`I am currently an Adjunct Professor in the School of Information at San
`7.
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`José State University in San José, California. I obtained a Master of Library Science
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`from the 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 fifty years, I have held various
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`positions in the field of library and information resources. I was first employed as a
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`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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`8.
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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, and I
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`served on the Committee on Cataloging: Resource and Description (which wrote the
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`new cataloging rules) and as the chair of the Committee for Education and Training
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`of Catalogers and the Competencies and Education for a Career in Cataloging
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`Interest Group. I also served as the Chair of the ALCTS Division’s Task Force on
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`Competencies and Education for a Career in Cataloging. Additionally, I have served
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`as the Chair for the ALA Office of Diversity’s Committee on Diversity, as a member
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`of the REFORMA National Board of Directors, and as a member of the Editorial
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`Board for the ALCTS premier cataloging journal, Library Resources and Technical
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`Services. Currently I serve as a Co-Chair for the Library Research Round Table of
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`the American Library Association.
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`9.
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`I have also given over one hundred presentations in the field, including
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`several on library cataloging systems and Machine-Readable Cataloging (“MARC”)
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`standards. My current research interests include library cataloging systems,
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`metadata, and organization of electronic resources.
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`10. My full curriculum vitae is attached hereto as Exhibit A.
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`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,
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`however, rendering my expert opinion on the authenticity of the documents
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`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
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`skilled in the subject matter or art, exercising reasonable diligence, could have
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`located the documents before the dates discussed below with respect to the specific
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`documents.
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`12.
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`I am informed by counsel that a printed publication qualifies as publicly
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`accessible as of the date it was disseminated or otherwise made available such that
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`a person interested in and ordinarily skilled in the relevant subject matter could
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`locate it through the exercise of ordinary diligence.
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`13. 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 (i.e., I understand that
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`cataloging and indexing by a library is sufficient, though there are other ways that a
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`printed publication may qualify as publicly accessible). One manner of sufficient
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`indexing is indexing according to subject matter category. I understand that the
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`cataloging and indexing by a single library of a single instance of a particular printed
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`publication is sufficient, even if the single library is in a foreign country. I
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`understand that, even if access to a library is restricted, a printed publication that has
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`been cataloged and indexed therein is publicly accessible so long as a presumption
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`is raised that the portion of the public concerned with the relevant subject matter
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`would know of the printed publication. I also understand that the cataloging and
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`indexing of information that would guide a person interested in the relevant subject
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`matter to the printed publication, such as the cataloging and indexing of an abstract
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`for the printed publication, is sufficient to render the printed publication publicly
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`accessible.
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`14.
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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.
`15.
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`Persons of Ordinary Skill in the Art
`I am told by counsel that the subject matter of this proceeding generally
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`relates to inhalation therapies, particularly involving the compound treprostinil, to
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`treat patients with pulmonary hypertension.
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`16.
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`I have been informed by counsel that a “person of ordinary skill in the
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`art at the time of the inventions” is a hypothetical person who is presumed to be
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`familiar with the relevant field and its literature at the time of the inventions. This
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`hypothetical person is also a person of ordinary creativity, capable of understanding
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`the scientific principles applicable to the pertinent field.
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`17.
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`I am told by counsel that the subject matter covers two multiple
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`disciplines. I understand that, with respect to the method of treating pulmonary
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`hypertension, a person of ordinary skill in this subject matter or art would typically
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`be someone with a medical degree with a specialty in pulmonology or cardiology,
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`plus at least two years of experience treating patients with pulmonary hypertension
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`as an attending, including with inhaled therapies, or equivalent. I also understand
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`that, with respect to inhaled formulations used in the method to treat pulmonary
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`hypertension, a person of ordinary skill in this subject matter or art would typically
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`be someone with a Ph.D. in pharmaceutical science or a related discipline like
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`chemistry or medicinal chemistry, plus two years of experience in pharmaceutical
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`formulations, including inhaled products, or equivalent (e.g., a masters degree in the
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`same fields, plus 5 years of experience). I have been further informed by counsel
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`that a person of ordinary skill in the art would have been familiar with and able to
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`understand the information known in the art relating to these fields, including the
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`publications discussed in this declaration.
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`C. Use of Authoritative Databases
`In preparing this report, I used authoritative databases, such as the
`18.
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`OCLC bibliographic database,
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`the Library of Congress Online Catalog,
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`ResearchGate, and Semantic Scholar, to confirm citation details of the publication
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`discussed.
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`19.
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`Indexing. A researcher may discover material relevant to his or her
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`topic in a 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 publications. Having found relevant
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`material, the researcher will then normally obtain it online, look for it in libraries, or
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`purchase it from the publisher, a bookstore, a document delivery service, or other
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`provider. Sometimes, the date of a document’s public accessibility will involve both
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`indexing and library date information.
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`20.
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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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`21. Online indexing services and digital repositories commonly provide
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`bibliographic information, abstracts, and full-text copies of the indexed publications,
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`along with a list of the documents cited in the indexed publication. These services
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`also often provide lists of publications that cite a given document. A citation of a
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`document is evidence that the document was publicly available and in use by
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`researchers no later than the publication date of the citing document.
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`22. ResearchGate.1 A social networking site for scientists and researchers
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`to share papers, ask and answer questions, and find collaborators, ReseachGate is
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`the largest academic social network in terms of active users, although other services
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`have more registered users, and a 2015–2016 survey suggests that almost as many
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`academics have Google Scholar profiles. Features available to ResearchGate
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`members include following a research interest and the work of other individual
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`participants, a blogging feature for users to write short reviews on peer-reviewed
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`1 www.researchgate.net
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`articles, private chat rooms for sharing data, editing documents, or discussing
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`confidential topics, and a research-focused job board. ResearchGate indexes self-
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`published information on user profiles and suggests members to connect with others
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`who have similar interests. Member questions are fielded to others who have
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`identified relevant expertise on their profiles.
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`23. ResearchGate restricts its user accounts to people at recognized
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`institutions and published researchers. As of 2018, ResearchGate had more than 15
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`million users, with its largest user-bases coming from Europe and North America.
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`Most of ResearchGate’s users are involved in medicine, biology, engineering,
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`computer science, agricultural sciences, and psychology. ResearchGate publishes a
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`citation impact measurement in the form of an “RG Score,” which is reported to be
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`correlated with existing citation impact measures. ResearchGate does not charge
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`fees for putting content on the site and does not require peer review.
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`24.
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`Semantic Scholar.2 Developed at the Allen Institute for Artificial
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`Intelligence and released in November 2015, Semantic Scholar is designed to be an
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`AI-backed search engine for scientific journal articles which uses a combination of
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`machine learning, natural language processing, and machine vision to add a layer of
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`semantic analysis to the traditional methods of citation analysis, and to extract
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`relevant figures, entities, and venues from papers. Semantic Scholar is designed to
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`2 www.semanticscholar.org
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`highlight important, influential papers, and to identify the connections between
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`them.
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`25. As of January 2018, following a 2017 project that added biomedical
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`papers and topic summaries, the Semantic Scholar corpus included more than 40
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`million papers from computer science and biomedicine. As of August 2019, the
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`number of included papers had grown to more than 173 million after the addition of
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`the Microsoft Academic Graph records, already used by Lens.org.
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`D.
`26.
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`Summary of Opinions
`I am informed by counsel that the priority date for the patent at issue is
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`May 15, 2006. As I will explain below, it is my opinion that the printed publications
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`discussed in my Declaration were publicly accessible before the May 15, 2006
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`priority date.
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`IV. LIBRARY CATALOGING PRACTICES
`A. MARC Records and OCLC
`I am fully familiar with the library cataloging standard known as the
`27.
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`MARC standard, which is an industry-wide standard method of storing and
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`organizing library catalog information. MARC was first developed in the 1960’s by
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`the Library of Congress. A MARC-compatible library is one that has a catalog
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`consisting of individual MARC records for works made available at that library.
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`28. Since at least the early 1970s and continuing to the present day, MARC
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`has been the primary communications protocol for the transfer and storage of
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`bibliographic metadata in libraries.3 As explained by the Library of Congress:
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`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
`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.
`a MARC Record Necessary? LIBRARY OF CONGRESS,
`Is
`
`Why
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`http://www.loc.gov/marc/umb/um01to06.html#part2 (last visited December 7,
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`2020).
`
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`3 A complete history of the development of MARC can be found in MARC: Its
`History and Implications by Henriette 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 December 7, 2020).
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`29. Thus, almost every major library in the world is MARC-compatible.
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`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS,
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`https://www.loc.gov/marc/faq.html (last visited December 7, 2020) (“MARC is the
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`acronym for MAchine-Readable Cataloging. It defines a data format that emerged
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`from a Library of Congress-led initiative that began nearly forty years ago. It
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`provides the mechanism by which computers exchange, use, and interpret
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`bibliographic information, and its data elements make up the foundation of most
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`library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994 standard
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`(reaffirmed in 2016) for Information Interchange Format. The full text of the
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`standard
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`is
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`available
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`from
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`the
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`Library
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`of
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`Congress
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`at
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`http://www.loc.gov/marc/bibliographic/ (last visited December 7, 2020).
`
`30. A MARC record comprises several fields, each of which contains
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`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. See, e.g.,
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`http://www.loc.gov/marc/umb/um07to10.html (last visited December 7, 2020);
`
`http://www.loc.gov/marc/bibliographic/ (last visited December 7, 2020). For
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`example, a work’s title is recorded in field 245, the primary author of the work is
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`recorded in field 100, a work’s International Standard Book Number (“ISBN”) is
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`recorded in field 020, a work’s International Standard Serial Number (“ISSN”) is
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`recorded in field 022, and the publication date is recorded in field 260 under the
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`subfield “c.” Id.4 If a work is a periodical, then its publication frequency is recorded
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`in field 310, and the publication dates (e.g., the first and last publication) are
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`recorded in field 362, which is also referred to as the enumeration/chronology field.
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`See http://www.loc.gov/marc/bibliographic/bd3xx.html (last visited December 7,
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`2020).5
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`31. The library that initially created the MARC record is reflected in field
`
`040 in subfield “a” with that library’s unique library code.
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` See, e.g.,
`
`http://www.loc.gov/marc/umb/um07to10.html (last visited December 7, 2020);
`
`http://www.loc.gov/marc/bibliographic/ (last visited December 7, 2020). Once a
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`MARC record for a particular work is originally created by one library, other
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`libraries can use that original MARC record to then create their own MARC records
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`for their own copies of the same work. These other libraries may modify or add to
`
`
`4 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
`December 7, 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”).
`5 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.
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`the original MARC record as necessary to reflect data specific to their own copies
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`of the work. However, the library that created the original MARC record would still
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`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)
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`is
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`reflected
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`in
`
`field
`
`040,
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`subfield
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`“d”.
`
`See
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`http://www.loc.gov/marc/bibliographic/bd040.html (last visited December 7, 2020).
`
`32.
`
`I
`
`consulted
`
`the
`
`Directory
`
`of
`
`OCLC
`
`Libraries
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`(http://www.oclc.org/contacts/libraries.en.html; last visited December 7, 2020) in
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`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.
`
`33. 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 March 24, 2020). Among these, for example, is the 650 field; this is the
`
`“Subject
`
`Added
`
`Entry
`
`–
`
`Topical
`
`Term”
`
`field.
`
`See
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`http://www.loc.gov/marc/bibliographic/bd650.html (last visited December 7, 2020).
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`The 650 field is a “[s]ubject added entry in which the entry element is a topical
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`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.
`
`34. 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 December 7, 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.
`
`35. 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
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`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
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`a 09X (e.g., 090) field. See http://www.loc.gov/marc/bibliographic/bd09x.html (last
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`visited December 7, 2020).
`
`36. 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,6 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 December 7, 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.
`
`37. The OCLC was created “to establish, maintain, and operate a
`
`
`6 The Unlikely Spy is a 1996 novel written by Daniel Silva, who happens to be one
`of my favorite authors.
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`computerized library network and to promote the evolution of library use, of libraries
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`themselves, and of librarianship, and to provide processes and products for the
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`benefit of library users and libraries, including such objectives as increasing
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`availability of library resources to individual library patrons and reducing the rate of
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`rise of library per-unit costs, all for the fundamental public purpose of furthering
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`ease of access to and use of the ever-expanding body of worldwide scientific,
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`literary, and educational knowledge and information.”7 Among other services,
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`OCLC and its members are responsible for maintaining the WorldCat database
`
`(http://www.worldcat.org/; last visited December 7, 2020), used by independent and
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`institutional libraries throughout the world. All libraries that are members of OCLC
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`are MARC-compatible. See, e.g., https://help.oclc.org/Metadata_Services/OCLC-
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`MARC_records/About_OCLC-MARC_records (last visited December 7, 2020)
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`(“OCLC-MARC records describes records produced since November 1993.”);
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`https://www.oclc.org/support/services/worldcat/documentation/cataloging/electron
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`icresources.en.html (last visited December 7, 2020) (“Like the two superseded
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`OCLC documents, this revised set of guidelines is intended to assist catalogers in
`
`creating records for electronic resources in WorldCat, the OCLC Online Union
`
`
`7 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`Library
`Center,
`Inc.
`(available
`at
`https://www.oclc.org/content/dam/oclc/membership/articles-of-incorporation.pdf;
`last visited December 7, 2020).
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`Catalog. These guidelines pertain to OCLC-MARC tagging (that is, content
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`designation). Cataloging rules and manuals (such as AACR2) govern the content of
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`records. You should implement these guidelines immediately.”).
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`38. When an OCLC member institution acquires a publication, like the
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`other MARC-compatible libraries discussed above, it creates a MARC record for
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`this publication in its computer catalog system in the ordinary course of its business.
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`MARC records created at the Library of Congress are tape-loaded into the OCLC
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`database through a subscription to MARC Distribution Services daily or weekly.
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`Once the MARC record is created by a cataloger at an OCLC member library or is
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`tape-loaded from the Library of Congress, the MARC record is then made available
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`to any other OCLC members online, and thereby made available to the public.
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`Accordingly, once the MARC record is created by a cataloger at an OCLC member
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`library or is tape-loaded from the Library of Congress, any publication
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`corresponding to the MARC record has been cataloged and indexed according to its
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`subject matter such that a person interested in that subject matter could, with
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`reasonable diligence, locate and access the publication through any library with
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`access to the OCLC bibliographic database or through the Library of Congress.
`
`39. Fields 008, 005, and 955 in MARC Records as Indicators of Public
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`Accessibility. When a MARC-compatible library creates an original MARC record
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`for a work, the library records the date of creation of that MARC record in field 008,
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`characters 00 through 05, in the ordinary course of its business.
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` See
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`http://www.loc.gov/marc/bibliographic/bd008a.html (last visited December 7,
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`2020). For OCLC member institutions that use OCLC software to create original
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`MARC records, the date of creation in field 008 is automatically supplied by the
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`OCLC software. The MARC record creation date in field 008 thus reflects the date
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`on which, or shortly after which, a work was first acquired and cataloged by the
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`library that created the original MARC record.
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`40. When other MARC-compatible libraries subsequently acquire their
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`own copies of the same work, as mentioned, they create MARC records in their own
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`computer catalog systems for their copies in the ordinary course of business.8 They
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`may use a MARC record previously created for that work (by another MARC-
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`compatible library) to create their own MARC records for their own copies of that
`
`same work.9 The previously created MARC record used by subsequently-acquiring
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`libraries to create MARC records for their own copies may be obtained through the
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`OCLC bibliographic database, as described above. If, when creating a MARC
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`record to represent its own copy of the work, the subsequently-acquiring library uses
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`the master MARC record in its original form, the subsequently-acquiring library
`
`
`8 Initial contributions to the bibliographic database for a work are called “master
`records.”
`9 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.
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`cannot reenter data into the 008 field; therefore, the date in the 008 field will continue
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`to reflect the date the MARC record was initially created by the originating library.
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`On the other hand, if the subsequently-acquiring library modifies the previously
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`created MARC record when creating its own MARC record for its own copy of the
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`work, the subsequently-acquiring library may enter into the 008 field of its own
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`MARC record the date its own MARC record was created.10 But the library that
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`created the original MARC record used by the subsequently-acquiring library would
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`still be reflected in the MARC record of the subsequently-acquiring library in field
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`040, subfield “a”. Thus, the work identified by any MARC record possessed by any
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`MARC-compatible library would have been accessible to the public at least as of the
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`date shown in the 008 field, or shortly thereafter, either from the library that
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`possesses the MARC record itself, or from the originating library indicated in field
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`040, subfield “a”. As discussed, a MARC-compatible library in the ordinary course
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`of its business creates a MARC record in its own catalog system for a work when it
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`acquires a copy of that work.
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`41. Moreover, when a MARC record is created by a library for its own copy
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`of a work, field 005 is automatically populated with the date that MARC record was
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`
`10 This practice is not required by, but is nevertheless co