UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Page 1
`
`_____________________________
`)
`LIQUIDIA TECHNOLOGIES, INC., )
`)
`Petitioner, )
`)
` vs. ) IPR2020-0070
`)
`UNITED THERAPEUTICS ) U.S. Patent No. 9,604,901
`CORPORATION, )
`)
`Patent Owner. )
`_____________________________)
`
`REMOTE DEPOSITION OF SYLVIA HALL-ELLIS, Ph.D.
`Wednesday, October 20, 2021
`Volume I
`
`Reported by:
`NADIA NEWHART
`CSR No. 8714
`Job No. 4848817
`PAGES 1 - 256
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`IPR2021-00406
`United Therapeutics EX2043
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`Page 4
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`1 APPEARANCES (Continued):
`
`23
`
`For Patent Owner:
`4 FOLEY & LARDNER, LLP
`5 BY: MICHAEL R. HOUSTON, ESQ.
`6 321 North Clark Street, Suite 3000
`7 Chicago, Illinois 60654-4762
`8
`312-832-4378
`9 mhouston@foley.com
`10 (Videoconference appearance.)
`11
`- and -
`12 FOLEY & LARDNER, LLP
`13 BY: STEPHEN B. MAEBIUS, ESQ.
`14 BY: MATTHEW M. TURK, ESQ.
`15 3000 K Street, N.W., Suite 600
`16 Washington, D.C. 20007-5109
`17
`202-672-5300
`18 smaebius@foley.com
`19 mturk@foley.com
`20 (Videoconference appearance.)
`21
`22
`23
`24
`25
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`Page 2
`1 UNITED STATES PATENT AND TRADEMARK OFFICE
`2 BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`3 4
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`_____________________________
`)
`5 LIQUIDIA TECHNOLOGIES, INC., )
`)
`6 Petitioner, )
`)
`
`7 vs.
`
`) IPR2020-0070
`
`)
`8 UNITED THERAPEUTICS ) U.S. Patent No. 9,604,901
`CORPORATION, )
`9 )
` Patent Owner. )
`10 _____________________________)
`11
`12
`13
`14
`15 Remote deposition of SYLVIA HALL-ELLIS, Ph.D.,
`16 Volume I, taken on behalf of Patent Owner, with all
`17 participants appearing remotely via videoconference and
`18 the witness testifying from Denver, Colorado, beginning
`19 at 9:01 a.m. and ending at 4:01 p.m. on Wednesday,
`20 October 20, 2021, before NADIA NEWHART, Certified
`21 Shorthand Reporter No. 8714.
`22
`23
`24
`25
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`Page 3
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`Page 5
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`1 INDEX
`2 WITNESS EXAMINATION
`3 SYLVIA HALL-ELLIS, Ph.D.
`4 Volume I
`5
`6
`7
`
`BY MR. HOUSTON
`BY MR. CHEEK
`BY MR. HOUSTON
`
`7
`249
`251
`
`8 9
`
`PAGE
`13
`
`10 EXHIBITS
`11 NUMBER DESCRIPTION
`12 Exhibit 1036 Declaration of Sylvia
`13 Hall-Ellis, Ph.D.; 194 pages
`14
`15 Exhibit 2037 Springer webpage excerpt; 74
`16 6 pages
`17
`18 Exhibit 2039 Herz Volume 30 webpage 91
`19 excerpt; 6 pages
`20
`21 Exhibit 2040 University of Wisconsin-Madison 117
`22 Library webpage excerpt; 2 pages
`23
`24
`25
`
`1 APPEARANCES:
`2 For Petitioner:
`3 COOLEY, LLP
`4 BY: DOUGLAS W. CHEEK, ESQ.
`5 1299 Pennsylvania Avenue, NW, Suite 1700
`6 Washington, D.C. 20004-2400
`7
`202-776-2108
`8 dcheek@cooley.com
`9 (Videoconference appearance.)
`10
`- and -
`11 COOLEY, LLP
`12 BY: DEEPA KANNAPPAN, ESQ.
`13 3175 Hanover Street
`14 Palo Alto, California 94304-1130
`15
`650-843-5673
`16 dkannappan@cooley.com
`17 (Videoconference appearance.)
`18
`- and -
`19 COOLEY, LLP
`20 BY: ERIK MILCH, ESQ.
`21 11951 Freedom Drive, 14th Floor
`22 Reston, Virginia 20190-5640
`23
`703-456-8573
`24 emilch@cooley.com
`25 (Videoconference appearance.)
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`1 A Okay.
`2 Q -- and I'm an attorney with Foley & Lardner --
`3 A Uh-huh.
`4 Q -- and we are representing the patent owner,
`5 United Therapeutics in this proceeding.
`6 A Okay.
`7 Q I'd like to just begin the deposition by
`8 mentioning a few things that would be helpful to keep
`9 in mind for both of us.
`10 Let me start by asking you, though, have you
`11 ever been deposed before?
`12 A Yes.
`13 Q Okay. About how many times?
`14 A This is number 22.
`15 Q Okay. Great. So you understand quite well
`16 how this works, the back and forth with my questioning
`17 and the fact that we have a court reporter who is
`18 trying to record what we say?
`19 A I believe that to be true.
`20 Q Okay. Let me ask one other thing.
`21 Have you ever done a remote deposition like
`22 we're doing today where we're using video and we're
`23 not --
`24 A Yes.
`25 Q Okay.
`
`1 INDEX (CONTINUED):
`
`INSTRUCTION NOT TO ANSWER
`Page Line
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`1 A Yes.
`2 Q So you're familiar with that. Thank you.
`3 So I'll just cover a few things that,
`4 hopefully, you know by now, but let me just reiterate.
`5 A Okay.
`6 Q If at any time I ask you a question that maybe
`7 I don't state it very well or for some reason you don't
`8 understand it --
`9 A Uh-huh.
`10 Q -- I would ask that you speak up and let me
`11 know, and I'll do my best to clarify or re-ask the
`12 question in a way that you do understand it.
`13 Can you agree to do that for me?
`14 A Certainly.
`15 Q Okay. Is there anything about your health or
`16 well being today that would prevent you from testifying
`17 truthfully and accurately?
`18 A No.
`19 Q Are you taking any medications that might in
`20 any way impair your ability to give testimony today?
`21 A No.
`22 Q Have you brought any documents with you to the
`23 deposition today?
`24 A Yes.
`25 Q Can you tell me what those documents are,
`
`1 Wednesday, October 20, 2021
`2 9:01 a.m.
`
`3 4
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`SYLVIA HALL-ELLIS, Ph.D.,
`5 having been first duly sworn, was examined and
`6
`testified as follows:
`
`7 8 9
`
` EXAMINATION
`10 BY MR. HOUSTON:
`11 Q Good morning.
`12 A Good morning.
`13 Q Would you mind stating your full name for the
`14 record, please.
`15 A My name is Sylvia Hall-Ellis.
`16 Q And would it be okay if I addressed you as
`17 Dr. Hall-Ellis for purposes of the deposition today?
`18 A That would be great.
`19 Q Okay. Dr. Hall-Ellis, let me quickly
`20 introduce myself.
`21 A Okay.
`22 Q I did so before we started, but I'll do so
`23 again for the record.
`24 A Uh-huh.
`25 Q I'm Michael Houston --
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`1 please --
`2 A I have --
`3 Q -- or can you summarize them. Yeah.
`4 A I have a notebook which is a printout of my
`5 declaration with all of the exhibits and attachments.
`6 Q Okay. So are those the -- is that the extent
`7 of the documents that you have with you right now?
`8 A Yes.
`9 Q Okay.
`10 A It's here and it is -- because on the screen,
`11 some of the typeface gets pretty small, and this is a
`12 little easier for me to read.
`13 Q Yeah. And I actually suggested to counsel
`14 that they have you print it out. So that -- I thought
`15 that might be easier for everyone to go through if you
`16 had a paper copy, so that's just fine.
`17 A Okay.
`18 Q Let me just ask, do you have any other
`19 computer screen windows open that are somehow related
`20 to this deposition today?
`21 A Yes. I have that Exhibit Share open
`22 because --
`23 Q Okay. Anything else?
`24 A No. Just that.
`25 Q Okay.
`
`1 not allowed to discuss the substance of your
`2 testimony --
`3 A Uh-huh.
`4 Q -- with anyone, your counsel or anyone else
`5 until at least my questioning is over today.
`6 So, you know, no discussions with your counsel
`7 about your answers or things --
`8 A Uh-huh.
`9 Q -- you would do differently as long as the
`10 floor is still open to me to ask my questions.
`11 Do you understand that?
`12 A Yes.
`13 Q Okay. Thank you. So you have provided expert
`14 opinions in this proceeding regarding your views as to
`15 the public availability of certain documents at issue
`16 in the IPR proceeding, correct?
`17 A Yes.
`18 Q Let me pause for one second.
`19 (Discussion off the record.)
`20 MR. HOUSTON: I apologize for that. On behalf
`21 of patent owner in the proceeding, I am Michael Houston
`22 of Foley & Lardner, and I have a colleague who's
`23 listening in for observational purposes, Mr. Matt Turk.
`24 MR. CHEEK: And on behalf of petitioner
`25 Liquidia Technologies, my name is Doug Cheek and with
`
`Page 11
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`1 A I thought that it might be needed, so I opened
`2 that.
`3 Q It may be needed later today, so that's just
`4 fine. Thank you.
`5 Do you have any other devices or other
`6 communication means that you intend to communicate with
`7 people today about the deposition --
`8 A No.
`9 Q -- aside from the video that we're doing right
`10 now?
`11 A No.
`12 Q Okay. Of course -- and I think you know this
`13 since you've done many of these before, but if
`14 there's -- if any technical issues arise during the --
`15 A Uh-huh.
`16 Q -- course of the deposition, I'd ask that you
`17 please do speak up and let someone know so that we can
`18 correct that.
`19 A Sure.
`20 Q Okay. And one more thing that I want to
`21 mention is to remind you that now that the deposition
`22 has started --
`23 A Uh-huh.
`24 Q -- the rules under the proceeding -- the rules
`25 for this particular type of proceeding say that you're
`
`Page 13
`1 me I have Deepa Kannapan, an associate of Cooley, LLP.
`2 MR. HOUSTON: Okay. Thank you.
`3 Q I'm sorry to interrupt you, Dr. Hall-Ellis. I
`4 just realized that we stepped over that formality at
`5 the very beginning, so I thank you for your patience.
`6 Okay. Dr. Hall-Ellis, I believe you've
`7 already mentioned that you have your declaration that
`8 you submitted in this proceeding with you, correct?
`9 A Yes.
`10 Q Okay. Let's just see if this works. You also
`11 said you have the Exhibit Share window open.
`12 A Yes.
`13 Q I'm going to try to populate that --
`14 A Okay.
`15 Q -- to get your declaration just in case we
`16 decide that --
`17 A Okay.
`18 MR. HOUSTON: Let's see here. Just in case we
`19 decide that we want to look at it electronically for
`20 some reason.
`21 THE WITNESS: Okay.
`22 MR. HOUSTON: I believe I've moved it now into
`23 the "Marked Exhibits" folder that you should be able to
`24 see under your Exhibit Share window.
`25 (Exhibit 1036 was marked for identification
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`1 and is attached hereto.)
`2 THE WITNESS: I see it. And it's --
`3 BY MR. HOUSTON:
`4 Q Do you see Exhibit 1036 there?
`5 A Yes, I do.
`6 Q Okay. Great.
`7 A I see that.
`8 Q Okay.
`9 A Uh-huh.
`10 Q So either there or in your paper copy --
`11 A Okay.
`12 Q -- would you just real quick flip to page 47
`13 and confirm that that's your signature and that this
`14 is, in fact, your declaration.
`15 A Yes, that is my signature.
`16 Q Okay. And so this is the declaration that
`17 you've submitted in this proceeding, correct?
`18 A Yes.
`19 Q Okay. Thank you. Now I'd like to -- to ask
`20 you to turn to page 4 of your declaration, and in
`21 particular, paragraph 13. And you can take a minute to
`22 review what's written there if you need to.
`23 A Okay. I'm familiar with this paragraph.
`24 Q Okay. In that paragraph, you state -- you say
`25 (as read):
`
`1 You can answer.
`2 THE WITNESS: These days, there is a
`3 perception by people, particularly people who are
`4 younger than I am, that everything is online and that,
`5 in fact, if I print something off from online, it is
`6 printed. It certainly can be a way of accessing
`7 information and articles and documents online is very
`8 common these days.
`9 There are a number of publications that are
`10 published online and in print, and there are others
`11 that are available only online that has no relationship
`12 to cataloging and indexing but certainly availability.
`13 Also, digital repositories have items as do
`14 archives and offsite storage facilities that a number
`15 of academic institutions have established and
`16 maintained. So there are a number of places to get
`17 documents.
`18 BY MR. HOUSTON:
`19 Q For purposes of the opinions expressed in your
`20 declaration --
`21 A Uh-huh.
`22 Q -- regarding the references that are discussed
`23 in your declaration being publicly accessible --
`24 A Uh-huh.
`25 Q -- do you rely on any of these other ways that
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`Page 15
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`1 "I also understand that a printed
`2 publication is rendered 'publicly
`3 accessible'" --
`4 A Uh-huh.
`5 Q (As read):
`6 -- "if it is cataloged and indexed by
`7 a library such that a person
`8 interested in the relevant subject
`9 matter could locate it."
`10 Do you see that?
`11 A I do.
`12 Q Okay. Then you go on to say in parentheses
`13 (as read):
`14 "(I understand that cataloging and
`15 indexing by a library is sufficient,
`16 though there are other ways that a
`17 printed publication may qualify as
`18 publicly accessible)."
`19 Do you see that?
`20 A Yes.
`21 Q Before we talk in a little more detail about
`22 cataloging and indexing, I'd like to ask you, what
`23 other ways can a printed publication qualify as being
`24 publicly accessible that you know of?
`25 MR. CHEEK: Objection to form.
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`Page 17
`1 something could be publicly accessible, or do you rely
`2 on them being cataloged and indexed to show public
`3 accessibility?
`4 A Well, reading my declaration, you'll find that
`5 Exhibit C comes from a database maintained by a federal
`6 government agency. And that is indexed, and it does
`7 not have the same characteristics as a journal article
`8 or a book or some other kind of document, but certainly
`9 a federally established and maintained database for the
`10 purpose of sharing information with the public would in
`11 my mind make that publicly accessible information. And
`12 I did do that.
`13 Q Okay. Fair enough, if we exclude that
`14 Exhibit C --
`15 A Uh-huh.
`16 Q -- so the rest of the references I believe
`17 would be characterized as Exhibit B like boy --
`18 A Uh-huh.
`19 Q -- and then C through F.
`20 A Uh-huh.
`21 MR. CHEEK: Objection to form.
`22 You can answer.
`23 MR. HOUSTON: I'm sorry, Doug. I wasn't
`24 finished.
`25 THE WITNESS: Yes, sir. Okay.
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`1 BY MR. HOUSTON:
`2 Q For those Exhibits --
`3 A Yes.
`4 Q -- B and C through F --
`5 A Uh-huh.
`6 Q -- are you relying on them being indexed,
`7 cataloged to establish their public accessibility?
`8 MR. CHEEK: Objection to form.
`9 You can answer.
`10 THE WITNESS: Let me look at them one by one
`11 just to be sure that I am accurate.
`12 B is an article from a journal, and C is from
`13 the federal database. D is an article that was printed
`14 and available from a library, as was E, as is F.
`15 So I would say, yes, printed all but the
`16 federal document.
`17 BY MR. HOUSTON:
`18 Q So for Exhibits B and D through F, you're
`19 relying on them being cataloged and indexed to
`20 establish public accessibility; is that fair?
`21 MR. CHEEK: Objection to form.
`22 You can answer.
`23 THE WITNESS: Yes.
`24 BY MR. HOUSTON:
`25 Q Dr. Hall-Ellis, I'm not a professional
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`Page 20
`1 number to give some reference to a subject area. And
`2 we assign subject headings with the designation of
`3 periodicals, because we want individuals to know it's
`4 not a book, it's not a sound recording. It is a
`5 printed item that is going to be coming out on some
`6 regular basis.
`7 In the online catalog, then, that indexing
`8 reflects the fact that it is a serial. It is held by
`9 the institution, and those holdings vary sometimes
`10 between print and online, but, generally our objective
`11 is to let individuals know we have the title, we have
`12 it in a particular form, and we have it over a
`13 particular period of time.
`14 Q I want to try to break that down just a little
`15 bit, partly because you did mention the word "indexing"
`16 in there.
`17 A Uh-huh.
`18 Q I just want to make sure I have clear in my
`19 head what cataloging is and what indexing is --
`20 A Okay.
`21 Q -- and sort of, you know, what the two are.
`22 Again, kind of in layman's terms, I'm trying to
`23 understand the distinction between the two.
`24 MR. CHEEK: Objection to form.
`25 You can answer.
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`Page 19
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`Page 21
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`1 librarian like you are, so I would appreciate a little
`2 patience. Could you describe in layman's terms for me
`3 what it means for a technical paper to be cataloged.
`4 A Can you help me understand? Do you mean a
`5 journal article, a conference paper or something else?
`6 Q Well, I suppose I would be referring to the
`7 types of papers, and we can exclude Exhibit C from our
`8 discussion.
`9 A All right.
`10 Q So the types of papers --
`11 A Okay.
`12 Q -- that are addressed by Exhibits B, D, E and
`13 F.
`14 A B, D, E and F. Okay. A -- let me think.
`15 B is a journal article and let me -- if
`16 they're all journal articles, that would be easiest,
`17 because we treat them all the same way.
`18 Okay. So we have here journal articles, and
`19 the way in which we treat them is to describe the
`20 journal as a serial; that is, a continuing resource
`21 that is published on a set, predictable schedule.
`22 We catalog the title, and we treat the entire
`23 life of the journal as one entity. So we do not
`24 catalog individual issues, but we treat the journal as
`25 one entity when we classify; that is, we assign a
`
`1 THE WITNESS: Okay. Cataloging is the
`2 transcription of bibliographic data that describes the
`3 journal, what is its name, what are variations of the
`4 name, how is it identified with standard serial
`5 numbers, what form does it take? Who is the publisher,
`6 where is that entity located and when did the
`7 publication start to be available in the world?
`8 Indexing is the assignment of subject
`9 headings. And in this case for serials, we try to tie
`10 them to standard indexes that will give location
`11 information for particular articles. So we try to
`12 indicate that as well.
`13 So indexing is both the journal itself and
`14 tying back to other types of indices that an individual
`15 seeking information can use to locate either a specific
`16 article or a specific issue of a journal.
`17 BY MR. HOUSTON:
`18 Q So is an index, is it like a compilation
`19 almost of keywords or topics that you would look up
`20 whatever you're interested in and then you would see
`21 what's listed underneath that keyword or topic?
`22 Is that a proper way to think of indexing?
`23 MR. CHEEK: Objection to form.
`24 You can answer.
`25 THE WITNESS: A layperson would say that is
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`1 true. Keywords are different. We are moving towards
`2 faceted subject access, and it will be the combination
`3 of keywords. So we now are assigning keywords, and
`4 many journals have been updated to include those
`5 keywords. They may or may not have had them at the
`6 initial time of cataloging, but yes, subject headings
`7 can be searched as keywords in online catalogs.
`8 BY MR. HOUSTON:
`9 Q Okay. And I realize now that there's perhaps
`10 a clarification that I should make, and I'm going to
`11 give you a chance to let me know if this changes
`12 anything.
`13 A Uh-huh.
`14 Q The articles in Exhibits B and D through F --
`15 A Uh-huh.
`16 Q -- as well as the priority date at issue
`17 here --
`18 A Uh-huh.
`19 Q -- I believe all fall within the 2004 to 2006
`20 time frame. So I should have --
`21 A Okay.
`22 Q -- prefaced my question by saying what I'm
`23 most interested in --
`24 A Okay.
`25 Q -- is understanding cataloging and indexing in
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`Page 23
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`1 that time frame. Does that -- limiting it to that time
`2 frame, does that really change anything in your
`3 description of cataloging and indexing?
`4 MR. CHEEK: Objection to form.
`5 You can answer.
`6 THE WITNESS: Yes.
`7 BY MR. HOUSTON:
`8 Q Okay. Could you describe what -- how did
`9 cataloging and indexing work in 2004 to 2006 --
`10 A In that time period --
`11 Q -- if it's different than what you just
`12 described for me?
`13 A We were not doing faceted subject headings at
`14 that time --
`15 Q Okay.
`16 A -- because we were not moving towards the
`17 semantic web that is being built through an initiative
`18 called BIBFRAME headquartered at the Library of
`19 Congress.
`20 And we did not have some of the fields that
`21 are in current records, because the new cataloging
`22 rules were not adopted until the end of March in 2013.
`23 And so there are some enhancements that bibliographic
`24 records now display that were not present because the
`25 guidance for them was not in place at that time.
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`1 Q Okay. That's helpful. Thank you.
`2 So as I ask my questions today, unless for
`3 some reason we need to make a distinction or we need to
`4 clarify, if you don't mind, let's assume that we're
`5 talking about that 2004 to 2006 time frame --
`6 A Okay.
`7 Q -- since that's what seems to be relevant
`8 here.
`9 A All right.
`10 Q Of course, you can also speak up and correct
`11 me if you think there's something else that's relevant
`12 that -- you know, I'm not asking you not to tell me
`13 that, but that is really the focus of my questions
`14 today, is that time period, just to let you know.
`15 A Okay. Thank you.
`16 Q And then I think I heard you say that Exhibits
`17 B and D through F --
`18 A Uh-huh.
`19 Q -- are what you would consider to be journal
`20 articles; is that right?
`21 A Yes.
`22 MR. CHEEK: Objection to form.
`23 You can answer.
`24 THE WITNESS: Yes.
`25 BY MR. HOUSTON:
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`Page 25
`1 Q Are journal articles themselves cataloged and
`2 indexed?
`3 A That's an interesting question. They are not
`4 individually cataloged and indexed in libraries, but
`5 they are indexed in indices that are created for that
`6 purpose that libraries tend to have available.
`7 Q And that is something that existed and was
`8 being done in the 2004 to 2006 time frame?
`9 MR. CHEEK: Objection --
`10 THE WITNESS: Yes.
`11 MR. CHEEK: -- to form.
`12 You can answer.
`13 THE WITNESS: Yes. Those indices that now are
`14 taken for granted were being built in the late 1990s
`15 through the early 2000s as libraries moved to a more
`16 digital environment. So we had a lot of activity going
`17 on at that time. Let me think.
`18 An example would have been IEEE building its
`19 big IEEE Xplore during that time frame. ProQuest was
`20 bringing out new indicis. Some of the items that we
`21 had in place became digital. So there was a lot of
`22 activity at that time because there was a movement away
`23 from all kinds of paper indexes and volumes and tables
`24 of indexes that libraries had prior to 2000.
`25 BY MR. HOUSTON:
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`1 Q Okay. So that time frame may become important
`2 in some of our later discussion topics --
`3 A Okay.
`4 Q -- and so we may return to what was available
`5 when.
`6 A Okay.
`7 Q I'm not sure it makes sense to do it right now
`8 at sort of this high level, but we'll keep that in mind
`9 and perhaps come back to it.
`10 A All right.
`11 Q In the 2004 to 2006 time frame, would it be
`12 your opinion that all journal papers would have been
`13 cataloged and indexed in some way?
`14 MR. CHEEK: Objection to form.
`15 You can answer it.
`16 THE WITNESS: Yes. Every journal that was
`17 available in a library was cataloged and indexed
`18 somehow.
`19 BY MR. HOUSTON:
`20 Q I'm sorry. Let me clarify.
`21 Journal articles, so I mean the actual
`22 papers --
`23 A Yes.
`24 Q -- the individual papers within a journal.
`25 A Yes, those indexes that we now see online
`
`Page 27
`1 existed in paper, and they came out on a regular basis
`2 in a paper format accumulated quarterly or annually.
`3 And they were kept in libraries because they gave us
`4 access to individual articles by topic or by author or
`5 title of the journal article. And it was a somewhat
`6 cumbersome process, but it was doable. So people
`7 had -- they had access. They just didn't have the
`8 access that now is more common.
`9 Q Uh-huh. So in the 2004 to 2006 time frame --
`10 A Uh-huh.
`11 Q -- it's your opinion that all journal
`12 articles, meaning the specific papers --
`13 A Uh-huh.
`14 Q -- would have been cataloged and indexed?
`15 MR. CHEEK: Objection to form.
`16 You can answer.
`17 THE WITNESS: Yes, in one way or another, yes.
`18 BY MR. HOUSTON:
`19 Q How about a published abstract? Would those
`20 have all been individually cataloged and indexed?
`21 MR. CHEEK: Same objections.
`22 You can answer.
`23 THE WITNESS: Abstracts are a little tricky
`24 because they're not full papers. It depended on the
`25 organization sponsoring usually an event than an
`
`Page 28
`1 abstract would be associated with. Sometimes a special
`2 issue of a journal would contain them. A supplement to
`3 a journal might be published containing abstracts.
`4 Conferences sometimes had abstracts in a separate
`5 section of the preceding volumes.
`6 But they were available. It depended on the
`7 environment in which that abstract was present as to
`8 where it was published and how one would find the index
`9 for it, but to say it wasn't would be incorrect.
`10 BY MR. HOUSTON:
`11 Q So again, it's your opinion that all abstracts
`12 in the 2004 to 2006 time frame all were cataloged and
`13 indexed?
`14 A I believe they were.
`15 MR. CHEEK: Objection; asked and answered.
`16 Go ahead.
`17 THE WITNESS: Yeah, I believe they were.
`18 BY MR. HOUSTON:
`19 Q Okay. And you're not aware of any examples of
`20 that not happening?
`21 A I'm trying to think back, and I know that that
`22 was the case in the medical field and the technology
`23 field. I can't speak to literature because I don't
`24 work in the literature area very much. But in the
`25 areas that I encounter most often, I would say that is
`
`Page 29
`
`1 the case.
`2 Q Okay. In the 2004 to 2006 time period --
`3 A Uh-huh.
`4 Q -- would there ever be a delay in between the
`5 time, let's say, the date on a given journal article or
`6 abstract and when that journal article or abstract
`7 would have been cataloged and indexed?
`8 MR. CHEEK: Objection to form.
`9 You can answer.
`10 THE WITNESS: We depend on the publishers for
`11 this. And that's kind of a fluid situation. If the
`12 publisher holds something for publication, we can't
`13 catalog anything or index it until it's released by the
`14 publisher. We just can't do it.
`15 So the publisher is really key here.
`16 Libraries have no incentive to hold things or to
`17 embargo documents. That is absolutely not something we
`18 would want to do. We see very few instances of that
`19 except with dissertations and thesis which are outside
`20 the scope of what we're discussing.
`21 It is not in our best interest to hold things
`22 back, and we would not be wanting to do that. That has
`23 been for decades.
`24 BY MR. HOUSTON:
`25 Q Okay. Let me break that down for a minute.
`
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`Page 32
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`1 So first of all, I think what you were
`2 suggesting is that the cataloging and indexing by a
`3 library for a given journal article or abstract --
`4 A Uh-huh.
`5 Q -- could not occur until the library receives
`6 that article or abstract.
`7 Was that one part of --
`8 MR. CHEEK: Objection to the form.
`9 BY MR. HOUSTON:
`10 Q -- your answer?
`11 A That would be true for a journal. For an
`12 article at that time and even now, issues go to the
`13 services that provide the indexing, and it is outside
`14 the scope of what libraries do. It is usually a
`15 commercial entity that does the indexing like ProQuest,
`16 IEEE, and their time frame is their own. As soon as
`17 something is released by those publishers, libraries
`18 have it, and it's available to the public.
`19 Q Well, okay. So I want to make sure I
`20 understand your testimony.
`21 A Uh-huh.
`22 Q A library is not going to catalog and index a
`23 journal, article or abstract until it receives a copy
`24 of the issue in which the journal, article or abstract
`25 appears; is that fair?
`
`Page 31
`
`1 MR. CHEEK: Objection to form.
`2 You can answer.
`3 THE WITNESS: No. The index is not
`4 necessarily -- it's the journal itself that the library
`5 will index, and that's usually based on receipt of the
`6 first issue of the journal title.
`7 MR. HOUSTON: Okay.
`8 THE WITNESS: The indexing of individual
`9 articles is done by entities designed to do that task.
`10 And when they are released to libraries, that
`11 information is available to the public from the
`12 library.
`13 MR. HOUSTON: Okay.
`14 THE WITNESS: The indexing is independent of
`15 the library in that instance.
`16 BY MR. HOUSTON:
`17 Q I see. So the libraries do not catalog and
`18 index individual journal articles or abstracts?
`19 A Generally, that is true.
`20 Q Okay.
`21 MR. CHEEK: Objection to form.
`22 BY MR. HOUSTON:
`23 Q And then you talked about how there was no
`24 incentive to delay the cataloging, indexing and release
`25 of a given journal article or abstract.
`
`1 A Uh-huh.
`2 Q But setting intent aside --
`3 A Uh-huh.
`4 Q -- are there not instances where there may be
`5 a delay, for whatever reason?
`6 MR. CHEEK: Objection to form.
`7 You can answer.
`8 THE WITNESS: If a publisher has a delay or an
`9 indexing entity has a delay, that is their purview and
`10 is outside the scope of libraries, and it's outside the
`11 scope of what I wrote in my declaration.
`12 BY MR. HOUSTON:
`13 Q Okay. What about within a library? I guess
`14 if we're saying a library doesn't do its own indexing
`15 and cataloging of specific articles --
`16 A Uh-huh.
`17 Q -- or abstracts, maybe that renders my
`18 question moot as to libraries.
`19 What happens when a library gets an issue of a
`20 journal? Maybe you can just walk me through that real
`21 quickly without going into --
`22 A Sure --
`23 Q -- excruciating detail, just at a high level.
`24 A -- although we could. Journals arrive at
`25 institutions of significant sizes, that is, large
`
`Page 33
`1 academic institutions, large public libraries en masse
`2 when they come in paper. So we're talking maybe 200 a
`3 day, 1500 a month or more.
`4 They come usually through the U.S. Post Office
`5 in buckets or boxes. They are checked in. That is to
`6 say the library has a recordkeeping system that allows
`7 them to indicate issues received. There is a review of
`8 the issue to be sure it is in good condition, it's not
`9 damaged, the cover hasn't been torn off, there aren't
`10 pages missing.
`11 It is stamped as received, and then it is
`12 taken to a public area for individuals who read a
`13 particular journal to take a look at if they come in
`14 and they want to do that. The other feature that we
`15 see in some larger institutions, particularly academi