UNITED STATES PATENT AND TRADEMARK OFFICE
`
`––––––––––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––––––––––
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`
`––––––––––––––––––
`
`Case No. IPR2022-00032
`U.S. Patent No. 9,552,376
`––––––––––––––––––
`
`DECLARATION OF MATTHEW BIRDSELL
`
`Petitioner Apple Inc. - Ex. 1020, p. Cover
`
`
`
`––––––––––––––––––
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`––––––––––––––––––
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`MEMORYWEB, LLC,
`Patent Owner.
`
`––––––––––––––––––
`
`Case No. IPR2022-00032
`U.S. Patent No. 9,552,376
`––––––––––––––––––
`
`DECLARATION OF MATTHEW BIRDSELL
`
`Petitioner Apple Inc. - Ex. 1020, p. Cover
`
`
`
`I.
`
`Introduction
`
`I, Matthew Birdsell, hereby declare as follows:
`
`1.
`
`My name is Matthew Birdsell. I have worked for Apple Inc. (“Apple”)
`
`since 2002 as either an independent contractor or as a full-time employee. I
`
`have been a full-time employee since June 2010. I have been asked to
`
`explain certain factual information known to me regarding the publication
`
`and dissemination of certain documentation related to Apple’s Aperture 3
`
`product, specifically the Aperture 3 User Manual. I have not been asked to
`
`provide, and do not intend to provide, any description of either the technical
`
`content of the Aperture 3 User Manual or the operation of the Aperture 3
`
`product.
`
`2.
`
`I am currently a Content Manager at Apple. During the 2010
`
`timeframe, I worked for the user publications group which dealt with Apple
`
`publications regarding Apple’s professional applications. I personally
`
`worked on Apple documentation and publications regarding each version of
`
`Aperture throughout its lifespan, including Aperture 3. As a result, I have
`
`personal knowledge of the following information as it relates to Apple’s
`
`publication and dissemination of the Aperture 3 User Manual.
`
`II.
`
`The Aperture 3 Product and the Aperture 3 User Manual
`
`3.
`
`My professional responsibilities between January and June of 2010
`
`included involvement with the team responsible for producing and
`
`Petitioner Apple Inc. - Ex. 1020, p. 1
`
`
`
`distributing Aperture 3 documentation, including the Aperture 3 User
`
`Manual. I have personal knowledge of how the Aperture 3 User Manual was
`
`prepared and distributed by Apple during this time frame.
`
`4.
`
`I am personally familiar with the Aperture 3 User Manual that was
`
`distributed with the Aperture 3 product. I have reviewed Exhibit 1005, and
`
`can confirm it is an accurate copy of the Aperture 3 User Manual that was
`
`distributed with the initial version of the Aperture 3 product (i.e., version
`
`3.0).
`
`A.
`
`5.
`
`Public Sale of Aperture 3
`
`Apple began selling Aperture 3 to members of the public in February
`
`of 2010. E.g., EX1048 (“February 9, 2010—Apple® today introduced
`
`ApertureTM 3, the next major release of its powerful photo editing and
`
`management software, with over 200 new features including Faces, Places
`
`and Brushes.”); EX1021, 2 (a February 17, 2010 Archive.org capture of
`
`www.apple.com/aperture, showing a “Buy Now” link for Aperture 3). Apple
`
`advertised the release of Aperture 3 on its website and it was widely covered
`
`in the technical and software press. E.g., 1021, 1 (a February 19, 2010
`
`Archive.org capture of www.apple.com, showing an advertisement
`
`“Introducing Aperture 3”). Starting in early February 2010, Apple sold the
`
`Aperture 3 product in its retail stores, on the Apple web store, and
`
`distributed it in retail channels in the United States. During 2010, the Mac
`
`Petitioner Apple Inc. - Ex. 1020, p. 2
`
`
`
`
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`
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`App Store did not yet exist so the only way to obtain a copy of Aperture 3
`
`product was to buy a retail box containing an Aperture 3 installer DVD.
`
`6.
`
`There were several branded versions of the Aperture 3 retail product
`
`including the standard product, an “Academic” edition sold at a discounted
`
`price, and a “bundled” version that was not for retail sale. The three branded
`
`versions each contained the same Aperture 3 installer DVD, installed the
`
`same Aperture 3 application and contained the same documentation.
`
`7.
`
`Aperture 3 was very popular and was purchased by a large number of
`
`users. Based on my experience with the utilization levels of the help
`
`resources on the Apple.com website at the time, I believe more than 100,000
`
`customers had purchased and were using the Aperture 3 product between
`
`February and June of 2010.
`
`B.
`
`8.
`
`The Aperture 3 User Manual
`
`In connection with the release of the Aperture 3 product, Apple
`
`produced and publicly distributed a comprehensive user manual describing
`
`the features and operation of the Aperture 3 product, which was called the
`
`Aperture 3 User Manual. Apple distributed the Aperture 3 User Manual on
`
`the physical media in the Aperture 3 retail product and through the
`
`Apple.com website.
`
`9.
`
`The Aperture 3 User Manual existed in at least two forms: an
`
`interlinked set of HTML files with their associated resources (e.g., images),
`
`Petitioner Apple Inc. - Ex. 1020, p. 3
`
`
`
`and a PDF format file. Prior to the release of the Aperture 3 product, an
`
`XML-based document authoring system was used to produce the Aperture 3
`
`User Manual in its HTML and PDF formats. For simplicity, I will refer to
`
`the set of interlinked HTML files and their associated resources as the
`
`Aperture 3 User Manual HTML file set in this declaration.
`
`10. Based on my recollections of the Apple publishing process used in the
`
`February-March 2010 time frame, the Aperture 3 User Manual HTML file
`
`set was initially pushed to Apple staging servers. Then, once final approval
`
`for the Aperture 3 product release was provided, the Aperture 3 User Manual
`
`HTML file set was moved from the staging servers to publicly accessible
`
`Apple servers (i.e., documentation.apple.com), where it could be retrieved
`
`and viewed by any member of the public.
`
`11. Apple personnel would verify and confirm that the Aperture 3
`
`documentation (including the HTML version of the Aperture 3 User Manual)
`
`was accessible to users after it had been posted on the public-facing Apple
`
`website. I do not recall any report of any problems with the public
`
`accessibility of the Aperture 3 documentation on www.apple.com, including
`
`the Aperture 3 User Manual. I thus believe that the Aperture 3 User Manual
`
`was available to the public via www.apple.com starting on the launch date of
`
`the Aperture 3 product in February 2010 and continuing past June 2010.
`
`Petitioner Apple Inc. - Ex. 1020, p. 4
`
`
`
`
`
`
`
`C.
`
`Dissemination of the Aperture 3 User Manual HTML File Set
`
`12. As I explain below, starting in February of 2010 and continuing to at
`
`least June of 2010, Apple disseminated the Aperture 3 User Manual HTML
`
`file set to members of the public in the following ways.
`
`a.
`
`The Aperture 3 User Manual HTML file set could be retrieved
`
`from the Aperture 3 installation DVD and viewed with a web
`
`browser (¶¶12–14, 16).
`
`b.
`
`After Aperture 3 was installed on a user’s computer, the user
`
`could display and view a locally-stored copy of the Aperture 3
`
`User Manual HTML file set using the built-in Apple Help
`
`Viewer or using a web browser (¶¶12–15).
`
`c.
`
`Any interested member of the public could locate and view the
`
`contents of the Aperture 3 User Manual HTML file set by
`
`retrieving it from Apple’s publicly accessible documentation
`
`site: http://documentation.apple.com/en/aperture/usermanual/
`
`(¶¶17–20). E.g., EX1021, 6.
`
`13.
`
`The Aperture 3 User Manual HTML file set produced as I described in
`
`paragraphs 8-11 above was included on the Aperture 3 installer DVDs
`
`distributed starting in February 2010. Specifically, the Aperture 3 User
`
`Manual HTML file set is stored in the Aperture 3 application file bundle on
`
`the Aperture 3 installer DVD. The Aperture 3 file bundle is located in a
`
`Petitioner Apple Inc. - Ex. 1020, p. 5
`
`
`
`
`
`
`
`compressed file on the Aperture installer DVD. Decompressing the
`
`compressed file yields a folder containing several subfolders and many
`
`different files including the Aperture application file bundle. Within one of
`
`the subfolders in the Aperture application file bundle is the Aperture 3 User
`
`Manual HTML file set I described in paragraphs 8-10.
`
`14.
`
`The Aperture 3 User Manual HTML file set is copied onto a user’s
`
`computer when the Aperture 3 application is installed on the user’s
`
`computer. The installation process used to install the Aperture 3 application
`
`copies the Aperture 3 file bundle from the installation DVD to the
`
`Applications folder within the application’s app package file on the user’s
`
`computer. This places a local copy of the Aperture 3 User Manual HTML
`
`file set on the user’s computer within that file bundle.
`
`15.
`
`The contents of the locally-stored Aperture 3 User Manual HTML file
`
`set can be displayed by selecting Aperture Help from the “Help” menu while
`
`Aperture 3 was running, then clicking Aperture 3 User Manual link within
`
`the window that is displayed. This link points to the locally-stored Aperture
`
`3 User Manual HTML file set.
`
`16.
`
`The locally-stored Aperture 3 User Manual HTML file set could also
`
`be viewed with a web browser by navigating to the path where the Aperture
`
`3 User Manual HTML file set is stored on the user’s computer after the
`
`Aperture 3 application had been installed.
`
`Petitioner Apple Inc. - Ex. 1020, p. 6
`
`
`
`
`
`
`
`D.
`
`Publication of the Aperture 3 User Manual on Apple.com
`
`17. Based on my personal knowledge, I recall that the Aperture 3 User
`
`Manual HTML file set was published on the www.apple.com website
`
`starting in February 2010 at the same time the Aperture 3 product was
`
`released.
`
`18. As of February 2010, the Aperture 3 User Manual HTML file set
`
`could be accessed by any member of the public who visited the dedicated
`
`support page for the Aperture 3 product at: www.apple.com/support/
`
`aperture. The Aperture 3 support page could be located using Aperture links
`
`on the apple.com website or by searching for “Aperture” or “Aperture 3” in
`
`the search box at the top right corner of the apple.com landing page. The
`
`Aperture 3 support page on the apple.com website contained an embedded
`
`URL pointing to the Aperture 3 User Manual HTML file set (i.e., http://
`
`documentation.apple.com/en/aperture/ usermanual/). The location of the
`
`URL is shown with a red arrow on an Internet Archive capture of this page
`
`dated February 17, 2010 (below):
`
`Petitioner Apple Inc. - Ex. 1020, p. 7
`
`
`
`
`
`
`
`
`
`19. One way a visitor to Apple’s website (www.apple.com) could locate
`
`the web-based version of the Aperture 3 User Manual was as follows.
`
`a.
`
`b.
`
`c.
`
`Navigate to www.apple.com; 1
`
`Select “Introducing Aperture 3”: http://www.apple.com/
`
`aperture/; 2
`
`Select “Resources”: http://www.apple.com/aperture/resources/; 3
`
`1
`
` See, e.g., https://web.archive.org/web/20100219190653/https://www.apple.com/.
` See, e.g., https://web.archive.org/web/20100217062822/http://www.apple.com/
`perture/.
` See, e.g., https://web.archive.org/web/20100305090412/http://www.apple.com/
`perture/resources/.
`
`2a
`
`3a
`
`Petitioner Apple Inc. - Ex. 1020, p. 8
`
`
`
`d.
`
`Select the “Learn more” link below “Aperture Support page”:
`
`e.
`
`f.
`
`http://www.apple.com/support/aperture;4
`
`Select “Aperture 3 User Manual”: http://
`
`documentation.apple.com/en/aperture/usermanual/; and
`5
`
`Select links to individual sections of the Aperture 3 User
`
`Manual that were available on the side bar.
`
`20.
`
`The Internet Archive webpage snapshots I reference above have, in
`
`part, refreshed my recollection regarding the specific webpages provided by
`
`www.apple.com and how they were interconnected in the early 2010
`
`timeframe.
`
` See, e.g., https://web.archive.org/web/20100217041537/http://www.apple.com/
`upport/aperture.
` See, e.g., https://web.archive.org/web/20100217035925/http://
`ocumentation. apple.com/en/aperture/usermanual/.
`
`4s
`
`5d
`
`Petitioner Apple Inc. - Ex. 1020, p. 9
`
`
`
`Ill. Attestation
`
`I do hereby declare andstate, that all statements made herein of my own
`
`knowledgearetrue and that all statements made on information and belief
`
`are believed to be true; and further that these statements were made with the
`
`knowledgethat willful false statements and the like so made are punishable
`
`by fine or imprisonment, under Section 1001 ofTitle 18 of the United States
`
`Code.
`
`Dated: Oer Z Zo2/
`
`Petitioner Apple Inc. - Ex. 1020, p. 10
`
`Petitioner Apple Inc. - Ex. 1020, p. 10
`
`
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