Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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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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`CLOUDFLARE, INC. AND SONICWALL INC.,
`Petitioner,
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`v.
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`SABLE NETWORKS, INC.,
`Patent Owner.
`____________
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`Case IPR2021-00909
`Patent 8,243,593
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`____________
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`DECLARATION OF ERIN McCRACKEN
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`Sable Networks, Inc. Exhibit 2008
`Page 2008 - 1
`IPR2021-00909, Cloudflare, Inc. v. Sable Networks, Inc.
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`U.S. Pat. No. 8,243,593
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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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`CLOUDFLARE, INC. AND SONICWALL INC.,
`Petitioner,
`
`v.
`
`SABLE NETWORKS, INC.,
`Patent Owner.
`____________
`
`Case IPR2021-00909
`Patent 8,243,593
`
`
`____________
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`DECLARATION OF ERIN McCRACKEN
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`Sable Networks, Inc. Exhibit 2008
`Page 2008 - 1
`IPR2021-00909, Cloudflare, Inc. v. Sable Networks, Inc.
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`I, Erin McCracken, declare the following:
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`1.
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`I am an attorney at the law firm of Berger & Hipskind LLP, and am a
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`member in good standing of the State Bar of California. I have been admitted pro
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`hac vice in this proceeding.
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`2.
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`I provide this Declaration in connection with IPR2021-00909, in
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`which I am back-up counsel of record for Patent Owner Sable Networks, Inc.
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`3. Unless otherwise stated, the facts contained in this Declaration are
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`based on my personal knowledge.
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`4.
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`The Federal Circuit has explained that the “Wayback Machine is an
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`online digital archive of web pages. It is run by the Internet Archive, a nonprofit
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`library in San Francisco, California. [E]xaminers use ‘The Wayback [M]achine’
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`as a source of information to determine when a Web reference was first made
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`available to the public.” Valve Corp. v. Ironburg Inventions Ltd., 2021 U.S. App.
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`LEXIS 24483, at *16 (Fed. Cir. Aug. 17, 2021) (internal citations and quotation
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`marks omitted). Recognizing that district courts routinely take “judicial notice of
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`the contents of webpages available through the Wayback Machine,” the Federal
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`Circuit has followed suit and done the same. Id. at *17 (finding that a webpage
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`retrieved from the Internet Archive did not have to be authenticated by the
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`Internet Archive).
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`5. On March 9, 2022, I navigated to the Internet Archive: Wayback
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`1
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`Sable Networks, Inc. Exhibit 2008
`Page 2008 - 2
`IPR2021-00909, Cloudflare, Inc. v. Sable Networks, Inc.
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`Machine website found at the following URL: https://archive.org/web/. After
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`navigating to the website, I used the “Browse History” function to search for the
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`Packeteer website, http://packeteer.com. I then clicked on the Wayback
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`Machine’s calendar for the year 2003 which shows (in blue) the dates in 2003 on
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`which the Wayback Machine saved the packeteer.com website. As shown in the
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`below screenshot, the only dates in March 2003 on which the Wayback Machine
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`saved the Packeteer website, http://packeteer.com, are March 21 and 27, 2003.
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`6. On March 9, 2022, I again navigated to the Internet Archive:
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`Wayback Machine website found at the following URL: https://archive.org/web/.
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`After navigating to the website, I used the “Browse History” function to search for
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`the URL identified in the Declaration of Christopher Butler for the record of the
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`Sable Networks, Inc. Exhibit 2008
`Page 2008 - 3
`IPR2021-00909, Cloudflare, Inc. v. Sable Networks, Inc.
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`archived version of the Four-Steps Whitepaper on which Petitioner relies in
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`ground 3 of the Petition— http:/packeteer.com/PDF_files/4steps.pdf. According
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`to the Internet Archive, that URL was saved only 10 times between March 17,
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`2003, and June 11, 2009. As shown in the below screenshot, the only dates in
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`2003 on which the Wayback Machine saved the URL
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`http:/packeteer.com/PDF_files/4steps.pdf are March 17, April 29, and October 25,
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`2003. However, when I clicked on the April 29 and October 25, 2003 calendar
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`dates, I received the following error message: “The page cannot be found.” This
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`is shown in the screenshots below.
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`7. As shown in the screenshots below, when I clicked on the other seven
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`dates—June 12, 2004, June 19, 2004, April 29, 2005, October 18, 2005, January
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`9, 2006, October 6, 2008, and July 11, 2009—on which the Wayback Machine
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`Sable Networks, Inc. Exhibit 2008
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`saved the URL http:/packeteer.com/PDF_files/4steps.pdf, I received similar error
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`messages.
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`Sable Networks, Inc. Exhibit 2008
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`U.S. Pat. No. 8,243,593
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`8.
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`I certify that all statements made herein of my knowledge are
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`true, and that these statements were made with knowledge that willful false
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`statements and the like are made punishable by fine or imprisonment, or both,
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`under Section 1001 of Title 18 of the United States Code.
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`March 9, 2022
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`/s/ Erin McCracken
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`Sable Networks, Inc. Exhibit 2008
`Page 2008 - 9
`IPR2021-00909, Cloudflare, Inc. v. Sable Networks, Inc.
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`Case IPR2021-00909
`U.S. Pat. No. 8,243,593
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that the following documents were served
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`by electronic service on the date signed below:
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`DECLARATION OF ERIN McCRACKEN
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`The names and address of the parties being served are as follows:
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`Respectfully submitted,
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` / Colette Woo /
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`Date: March 14, 2022
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`9
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`Sable Networks, Inc. Exhibit 2008
`Page 2008 - 10
`IPR2021-00909, Cloudflare, Inc. v. Sable Networks, Inc.
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