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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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`––––––––––––––––––
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`
`––––––––––––––––––
`
`Case No. IPR2022-00032
`U.S. Patent No. 9,552,376
`
`––––––––––––––––––
`
`DECLARATION OF JEFFREY P. KUSHAN
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`
`Petitioner Apple Inc., Ex. 1091, p. Cover
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`
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`
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`IPR2022-00032
`
` Declaration of Jeffrey P. Kushan
`
`I, Jeffrey P. Kushan, make the following Declaration pursuant to 28 U.S.C.
`
` 1746:
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`1.
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`2.
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`I am a partner at the law firm of Sidley Austin LLP.
`
`I provide this declaration in connection with the above-identified
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` §
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`
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`inter partes and post grant review proceedings pending before the United States
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`Patent and Trademark Office by Apple Inc. against MemoryWeb, LLC under 35
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`U.S.C. § 311, 37 C.F.R. § 42.104. Unless otherwise stated, the facts stated in this
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`Declaration are based on my personal knowledge.
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`3.
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`For each of the exhibits addressed below, an exhibit label and page
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`numbers have been added, but no other alterations have been made. Where the
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`exhibit is a PDF generated from a webpage displayed in a web browser, the PDF
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`may contain information in the header and footer (e.g., the URL, the title of the
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`page being displayed or similar items), which was generated automatically by
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`the web browser displaying the page.
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`4.
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`Exhibit 1066 is a true and correct copy of excerpts from Learn Mac
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`OS X Snow Leopard, a book authored by Scott Meyers and Mike Lee (© 2009).
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`I personally purchased and downloaded this book from the following URL on
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`the SpringerLink.com website (https://link.springer.com/book/10.1007/978-1-
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`4302-1947-7).
`
`
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`Petitioner Apple Inc., Ex. 1091, p. 1
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
`
`
`
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`IPR2022-00032
`
` Declaration of Jeffrey P. Kushan
`
`5.
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`Exhibit 1067 is a true and correct copy of the web page available
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`from the Internet Archive at the following URL:
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`https://web.archive.org/web/20100201093806/http://apress.com/book/view/9781
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`430219460.
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`6.
`
`Exhibit 1068 is a true and correct copy of a set of web pages
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`available from the Internet Archive at the URLs listed below:
`
`a)
`
`Page 1 of Exhibit 1068 (“Mac Dev Center”) is a true and
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`correct copy of the web page available from the following URL:
`
`https://web.archive.org/web/20100414095727/http://developer.apple.com:80/ma
`
`c/.
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`b)
`
`Pages 2-3 of Exhibit 1068 (“Mac OS X Reference Library”)
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`are a true and correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100504092324/http://developer.apple.com/mac/li
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`brary/navigation/.
`
`7.
`
`Exhibit 1069 is a true and correct copy of a PDF entitled “Mac OS
`
`X Technology Overview” from Apple Inc. (© 2004, 2009) available from the
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`Internet Archive at the following URL:
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`https://web.archive.org/web/20101113134432mp_/http://developer.apple.com/li
`
`brary/mac/documentation/MacOSX/Conceptual/OSX_Technology_Overview/
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`OSX_Technology_Overview.pdf.
`
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`Petitioner Apple Inc., Ex. 1091, p. 2
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`
`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`8.
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`Exhibit 1070 is a true and correct copy of a set of web pages
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`available from the Internet Archive at the URLs listed below:
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`a)
`
`Pages 1-2 of Exhibit 1070 (“Introduction”) are a true and
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`correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100525020133/http://developer.apple.com/mac/li
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`brary/documentation/corefoundation/conceptual/CFBundles/Introduction/Introd
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`uction.html.
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`b)
`
`Pages 3-7 of Exhibit 1070 (“About Bundles”) are a true and
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`correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100518063556/http://developer.apple.com/mac/li
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`brary/documentation/corefoundation/conceptual/CFBundles/AboutBundles/Abo
`
`utBundles.html.
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`c)
`
`Pages 8-26 of Exhibit 1070 (“Bundles Structures”) are a true
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`and correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100515101347/http://developer.apple.com/mac/li
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`brary/documentation/corefoundation/conceptual/CFBundles/BundleTypes/Bundl
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`eTypes.html.
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`d)
`
`Pages 27-40 of Exhibit 1070 (“Accessing a Bundle’s
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`Contents”) are a true and correct copy of the web page available from the
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`following URL:
`
`
`Petitioner Apple Inc., Ex. 1091, p. 3
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
`
`
`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`https://web.archive.org/web/20100516163746/http://developer.apple.com:80/ma
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`c/library/documentation/corefoundation/conceptual/CFBundles/AccessingaBund
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`lesContents/AccessingaBundlesContents.html.
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`e)
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`Pages 41-42 of Exhibit 1070 (“Document Packages”) are a
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`true and correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100711125826/http://developer.apple.com/mac/li
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`brary/DOCUMENTATION/CoreFoundation/Conceptual/CFBundles/Document
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`Packages/DocumentPackages.html.
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`9.
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`Exhibit 1071 is a true and correct copy of a set of web pages
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`available from the Internet Archive at the URLs listed below:
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`a)
`
`Pages 1-2 of Exhibit 1071 (“Introduction”) are a true and
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`correct copy of the web page available from the following URL:
`
`https://web.archive.org/web/20100114164340/http://developer.apple.com/mac/li
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`brary/documentation/Cocoa/Conceptual/LoadingResources/Introduction/Introdu
`
`ction.html.
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`b)
`
`Pages 3-6 of Exhibit 1071 (“About Resources”) are a true
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`and correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20091122060420/http://developer.apple.com/mac/li
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`brary/DOCUMENTATION/Cocoa/Conceptual/LoadingResources/MOSXResou
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`rces/MOSXResources.html#//apple_ref/doc/uid/10000051i-CH3-SW1.
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`Petitioner Apple Inc., Ex. 1091, p. 4
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`c)
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`Pages 7-24 of Exhibit 1071 (“Nib Files”) are a true and
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`correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100115044038/http://developer.apple.com/mac/li
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`brary/documentation/Cocoa/Conceptual/LoadingResources/CocoaNibs/CocoaNi
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`bs.html#//apple_ref/doc/uid/10000051i-CH4-SW8.
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`d)
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`Pages 25-34 of Exhibit 1071 (“Carbon Resources”) are a true
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`and correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100113155803/http://developer.apple.com/mac/li
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`brary/documentation/cocoa/Conceptual/LoadingResources/CarbonNibs/Carbon
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`Nibs.html#//apple_ref/doc/uid/10000051i-CH5-SW1.
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`e)
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`Pages 35-45 of Exhibit 1071 (“String Resources”) are a true
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`and correct copy of the web page available from the following URL:
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`https://web.archive.org/web/20100112225732/http://developer.apple.com/mac/li
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`brary/documentation/Cocoa/Conceptual/LoadingResources/Strings/Strings.html
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`#//apple_ref/doc/uid/10000051i-CH6-SW1.
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`f)
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`Pages 46-56 of Exhibit 1071 (“Image, Sound, and Video
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`Resources”) are a true and correct copy of the web page available from the
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`following URL:
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`https://web.archive.org/web/20100114012530/http://developer.apple.com/mac/li
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`brary/documentation/cocoa/Conceptual/LoadingResources/ImageSoundResourc
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`
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`Petitioner Apple Inc., Ex. 1091, p. 5
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
`
`
`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`es/ImageSoundResources.html#//apple_ref/doc/uid/10000051i-CH7-SW1.
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`10. Exhibit 1073 contains true and correct copies of images I captured
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`from a Macintosh MacBook Pro computer into which had been inserted an
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`Aperture 3 Installer DVD. Based on my personal knowledge, this is the same
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`computer and the same Aperture 3 Installer DVD used by Dr. Terveen in the
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`course of preparing his declaration. See e.g., Ex. 1003 (IPR2022-00031), ¶¶ 73-
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`98. I did not install any additional software on the computer and did not
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`otherwise alter the operating system of the computer. I am also not aware that
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`anyone else installed any additional software or altered the operating system of
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`this computer. When I selected the “About This Mac” menu option, the
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`computer displayed the same information shown in the image in ¶ 75 of Dr.
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`Terveen’s declaration in IPR2022-00031 (Ex. 1003) (i.e., that the computer was
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`a MacBook Pro with a 2.8 GHz Intel Core 2 Duo processor and 4 GB of 1067
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`MHz DDR3 memory and was running version 10.6.3 of the Mac OS X
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`operating system). The same information was displayed by this same computer
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`when I selected the “About This Mac” menu option during the deposition of Dr.
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`Surati on December 1, 2022, as shown in Exhibit 1086.
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`11. The following paragraphs describe the steps I took to generate the
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`screen captures in Exhibit 1073. Each screen capture was generated by
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`executing the “Command-Shift-4” command and drawing a box around a part of
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`
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`Petitioner Apple Inc., Ex. 1091, p. 6
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`the screen displayed on the Desktop of the Finder on the MacBook Pro.
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`a)
`
`The top image on page 1 of Exhibit 1073 is a screen capture
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`showing the window that is displayed when the Aperture 3 Installer DVD is
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`inserted into the DVD player within the MacBook Pro along with the Aperture 3
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`Installer DVD icon (to the left of the window). The bottom image was
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`displayed when I selected the Aperture disk icon and selected “Get Info” menu
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`option on the File Menu of the Finder.
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`b)
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`The image on page 2 of Exhibit 1073 is a screen capture of
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`showing the Aperture 3 Installer DVD window with a contextual menu that
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`appeared when I selected the “Install Aperture” icon and pressed the control key
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`while pressing on the touchpad of the Macbook Pro.
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`c)
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`The image on page 3 of Exhibit 1073 is a screen capture of
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`the window that appeared when I selected the Install Aperture icon and then
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`selected the “Get Info” menu option on the File Menu of the Finder.
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`d)
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`The image on page 4 of Exhibit 1073 is a screen capture
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`showing two windows displayed in the Finder. The top window was displayed
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`after I performed the following steps: (i) I copied the file “Aperture.pkg” from
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`the “Packages” subdirectory on the Aperture 3 Installer DVD to the desktop
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`after making hidden files visible as described in Dr. Surati’s declaration (Ex.
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`2025, ¶ 109), (ii) after selecting the Aperture.pkg file, I pressed the touchpad
`
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`Petitioner Apple Inc., Ex. 1091, p. 7
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`while holding the control key down and selected the menu option “Show
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`Package Contents” from the contextual menu that appeared, which displayed a
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`window showing the contents of the Aperture.pkg file; (iii) I copied the file
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`“Archive.pax.gz” from the Aperture.pkg folder to the Finder Desktop and
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`double clicked it, which produced a folder on the Desktop named “Archive”;
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`and (iv) I double clicked the “Archive” folder and expanded the Applications
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`sub-folder to display the Aperture.app file. The bottom window was displayed
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`when I performed the following steps: (i) I selected the “Aperture.app” file in
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`the top window in the image on page 4 of Ex. 1073; (ii) I pressed the touchpad
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`while holding the control key down and selected “Show Package Contents”
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`from the contextual menu that appeared, and (iii) I expanded the “Contents”
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`Folder that was displayed to show the folders in the “Contents” folder.
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`e)
`
`The image on page 5 of Ex. 1073 is a screen capture of the
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`contents of the Aperture 3 Installer DVD displayed using the “View As List”
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`option under the “View” menu after making hidden files visible as described in
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`Dr. Surati’s declaration (Ex. 2025, ¶ 109).
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`f)
`
`The image on page 6 of Ex. 1073 shows at the top of the
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`image the window displayed when the Aperture 3 Installer DVD was inserted
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`into the MacBook Pro before I executed the commands to show hidden files
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`noted in paragraphs (b) and (e) above. At the bottom is the window that was
`
`
`
`Petitioner Apple Inc., Ex. 1091, p. 8
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`displayed when I launched the Terminal Application in the Utilities subfolder in
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`the Applications Folder, and typed in the following letters: (i) “cd
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`/Volumes/Aperture” followed by return, and (ii) “ls -l -a” followed by return.
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`12. Exhibit 1074 is a true and correct copy of a set of web pages
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`available from the Internet Archive at the URLs listed below:
`
`a)
`
`Page 1 of Exhibit 1074 is a true and correct copy of the web
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`page available from the following URL:
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`https://web.archive.org/web/20100316213353/http://www.apple.com/aperture/.
`
`b)
`
`Pages 2-3 of Exhibit 1074 are a true and correct copy of the
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`web page available from the following URL:
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`https://web.archive.org/web/20100315070539/http://www.apple.com:80/apertur
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`e/resources/.
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`c)
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`Page 4 of Exhibit 1074 is a true and correct copy of the web
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`page available from the following URL:
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`https://web.archive.org/web/20100311173011/http://www.apple.com:80/support
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`/aperture/.
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`13. Exhibit 1076 is a true and correct copy of a set of web pages
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`available from the Internet Archive at the URLs listed below:
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`a)
`
`Pages 1-2 of Exhibit 1076 are a true and correct copy of the
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`
`
`Petitioner Apple Inc., Ex. 1091, p. 9
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`
`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`web page available from the following URL:
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`https://web.archive.org/web/20100411022811/http://www.apple.com/aperture.
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`b)
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`Pages 3-4 of Exhibit 1076 are a true and correct copy of the
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`web page available from the following URL:
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`https://web.archive.org/web/20100315070539/http://www.apple.com/aperture/re
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`sources/.
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`c)
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`Page 5 of Exhibit 1076 is a true and correct copy of the web
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`page available from the following URL:
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`https://web.archive.org/web/20100311173011/http://www.apple.com:80/support
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`/aperture/.
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`14. Exhibit 1077 is a true and correct copy of a web page available
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`from the Internet Archive at the following URL:
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`https://web.archive.org/web/20100211033049/http://www.macworld.com/article
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`/146231/2010/02/aperture3.html.
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`15. Exhibit 1078 is a true and correct copy of a web page available
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`from the Internet Archive at the following URL:
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`https://web.archive.org/web/20100212221924/http://www.apple.com/aperture.
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`16. Exhibit 1079 is a true and correct copy of a set of web pages
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`available from the Internet Archive at the URLs listed below:
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`
`
`Petitioner Apple Inc., Ex. 1091, p. 10
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
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`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`a)
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`Page 1 of Exhibit 1079 is a true and correct copy of the web
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`page available from the following URL:
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`https://web.archive.org/web/20101126084240/http://www.panoramio.com/map#
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`lt=45.460131&ln=-84.726563&z=13&k=0&a=1&tab=1.
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`b)
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`Page 2 of Exhibit 1079 is a true and correct copy of the web
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`page available from the following URL:
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`https://web.archive.org/web/20101126084240/http://www.panoramio.com:80/m
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`ap.
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`17. Exhibit 1080 is a true and correct copy of the web page available
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`from the Internet Archive at the following URL:
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`https://web.archive.org/web/20100328220626/http://www.panoramio.com:80/he
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`lp/adding_photos.
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`
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`I, Jeffrey P. Kushan, do hereby declare and state, that all statements made
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`herein of my own knowledge are true and that all statements made on information
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`and belief are believed to be true; and further that these statements were made
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`with the knowledge that willful false statements and the like so made are
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`punishable by fine or imprisonment, under Section 1001 of Title 18 of the United
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`States Code.
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`
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`
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`Petitioner Apple Inc., Ex. 1091, p. 11
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
`
`
`
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`IPR2022-00032
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` Declaration of Jeffrey P. Kushan
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`Dated: December 23, 2022
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`Respectfully Submitted,
`
`/Jeffrey P. Kushan/
`Jeffrey P. Kushan
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`
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`
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`Petitioner Apple Inc., Ex. 1091, p. 12
`Apple Inc. v. MemoryWeb, LLC, IPR2022-00032
`
`
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