UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`American Honda Motor Co., Inc.
`
`Petitioner,
`
`v.
`
`MicroPairing Technologies, LLC
`
`Patent Owner.
`
`
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313-1450
`
`Submitted Electronically via the Patent Trial and Appeal Board End to End
`System
`
`AHM, Exh. 1011, p. 1
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`American Honda Motor Co., Inc.
`
`Petitioner,
`
`v.
`
`MicroPairing Technologies, LLC
`
`Patent Owner.
`
`
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313-1450
`
`Submitted Electronically via the Patent Trial and Appeal Board End to End
`System
`
`AHM, Exh. 1011, p. 1
`
`
`
`I.
`
`INTRODUCTION
`1. My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`American Honda Motor Co., Inc., Petitioner.
`
`2.
`
`I have written this report at the request of American Honda Motor and
`
`its counsel Baker Botts to provide my expert opinion regarding the authenticity and
`
`public availability of several documents. My report sets forth my opinions in
`
`detail and provides the basis for my opinions regarding the public availability of
`
`these publications.
`
`3.
`
`I reserve the right to supplement or amend my opinions, and bases for
`
`them, in response any additional evidence, testimony, discovery, argument, and/or
`
`other additional information that may be provided to me after the date of this
`
`report.
`
`4.
`
`I am being compensated for my time spent working on this matter at
`
`my normal consulting rate of $325 per hour, plus reimbursement for any additional
`
`reasonable expenses. My compensation is not in any way tied to the content of this
`
`report, the substance of my opinions, or the outcome of this litigation. I have no
`
`other interests in this proceeding or with any of the parties.
`
`5.
`
`All of the materials that I considered are discussed explicitly in this
`
`declaration.
`
`1
`
`AHM, Exh. 1011, p. 2
`
`
`
`II. QUALIFICATIONS
`6.
`I am currently an Adjunct Professor in the School of Information at
`
`San José State University. I obtained a Master of Library Science from the
`
`University of North Texas in 1972 and a Ph.D. in Library and Information Science
`
`from the University of Pittsburgh in 1985. Over the last fifty years, I have held
`
`various positions in the field of library and information resources. I was first
`
`employed as a librarian in 1966 and have been involved in the field of library
`
`sciences since, holding numerous positions.
`
`7.
`
`I am a member of the American Library Association (ALA) and its
`
`Association for Library Collections & Technical Services (ALCTS) Division, and I
`
`served on the Committee on Cataloging: Resource and Description (which wrote
`
`the new cataloging rules) and as the chair of the Committee for Education and
`
`Training of Catalogers and the Competencies and Education for a Career in
`
`Cataloging Interest Group. I also served as the Chair of the ALCTS Division’s
`
`Task Force on Competencies and Education for a Career in Cataloging.
`
`Additionally, I have served as the Chair for the ALA Office of Diversity’s
`
`Committee on Diversity, as a member of the national Board of Directors for
`
`REFORMA, and as a member of the Editorial Board for the ALCTS premier
`
`cataloging journal, Library Resources and Technical Services. Currently I serve as
`
`2
`
`AHM, Exh. 1011, p. 3
`
`
`
`a Co-Chair for the Library Research Round Table of the American Library
`
`Association.
`
`8.
`
`I have also given over one hundred presentations in the field,
`
`including several on library cataloging systems and Machine-Readable Cataloging
`
`(“MARC”) standards. My current research interests include library cataloging
`
`systems, metadata, and organization of electronic resources.
`
`9. My full curriculum vitae is attached hereto as an Appendix to this
`
`report.
`
`III. LIBRARY CATALOGING PRACTICES
`10.
`I am fully familiar with the library cataloging standard known as the
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information.1 MARC was first developed in the 1960s
`
`by the Library of Congress. A MARC-compatible library is one that has a catalog
`
`consisting of individual MARC records for each of its items. Today, MARC is the
`
`primary communications protocol for the transfer and storage of bibliographic
`
`metadata in libraries.2
`
`
`
`1 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliographic/.
`2 Almost every major library in the world is MARC-compatible. See, e.g., MARC
`Frequently Asked Questions (FAQ), Library of Congress,
`
`3
`
`AHM, Exh. 1011, p. 4
`
`
`
`11. A MARC record comprises several fields, each of which contains
`
`specific data about the work. Each field is identified by a standardized, unique,
`
`three-digit code corresponding to the type of data that follow. For example, a
`
`work’s title is recorded in field 245, the primary author of the work is recorded in
`
`field 100, an item’s International Standard Book Number (“ISBN”) is recorded in
`
`field 020, an item’s International Standard Serial Number (“ISSN”) is recorded in
`
`field 022, an item’s Library of Congress call number is recorded in field 050, and
`
`the publication date is recorded in field 260 under the subfield “c.” If a work is a
`
`periodical, then its publication frequency is recorded in field 310, and the
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`publication dates (e.g., the first and last publication) are recorded in field 362,
`
`which is also referred to as the enumeration/chronology field.
`
`12. The library that created the record is recorded in field 040 in subfield
`
`“a” with a unique library code. When viewing the MARC record online via Online
`
`Computer Library Center’s (“OCLC”) bibliographic database, hovering over this
`
`
`
`https://www.loc.gov/marc/faq.html (last visited April 25, 2022) (“MARC is the
`acronym for MAchine-Readable Cataloging. It defines a data format that emerged
`from a Library of Congress-led initiative that began nearly fifty years ago. It
`provides the mechanism by which computers exchange, use, and interpret
`bibliographic information, and its data elements make up the foundation of most
`library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994 (reaffirmed
`2016) standard for Information Interchange Format.
`
`4
`
`AHM, Exh. 1011, p. 5
`
`
`
`code with the mouse reveals the full name of the library. I used this method of
`
`“mousing over” the library codes in the OCLC database to identify the originating
`
`library for the MARC records discussed in this report. Where this “mouse over”
`
`option was not available, I consulted the WorldCat® Registry in order to identify
`
`the institution that created the MARC record.3
`
`13. MARC records also include several fields that include subject matter
`
`classification information. An overview of MARC record fields is available
`
`through the Library of Congress.4 For example, 6XX fields are termed “Subject
`
`Access Fields.”5 Among these, for example, is the 650 field; this is the “Subject
`
`Added Entry – Topical Term” field.6 The 650 field is a “[s]ubject added entry in
`
`which the entry element is a topical term.” 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)).” Further, MARC records include call numbers, which
`
`themselves include a classification number. For example, the 050 field is the
`
`
`
`3 http://www.worldcat.org/webservices/registry/Institutions
`4 http://www.loc.gov/marc/bibliographic/
`5 http://www.loc.gov/marc/bibliographic/bd6xx.html
`6 http://www.loc.gov/marc/bibliographic/bd650.html
`
`5
`
`AHM, Exh. 1011, p. 6
`
`
`
`“Library of Congress Call Number.”7 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.” Thus, included in the 050 field is a subject matter classification. 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. If a local library assigns the
`
`classification number, it appears in a 090 field. In either scenario, the MARC
`
`record
`
`includes a classification number
`
`that represents a subject matter
`
`classification.
`
`14. The OCLC was created “to establish, maintain and operate a
`
`computerized library network and to promote the evolution of library use, of
`
`libraries themselves, and of librarianship, and to provide processes and products
`
`for the benefit of library users and libraries, including such objectives as increasing
`
`availability of library resources to individual library patrons and reducing the rate
`
`of rise of library per-unit costs, all for the fundamental public purpose of furthering
`
`ease of access to and use of the ever-expanding body of worldwide scientific,
`
`
`7 http://www.loc.gov/marc/bibliographic/bd050.html
`
`6
`
`AHM, Exh. 1011, p. 7
`
`
`
`literary and educational knowledge and information.” 8 Among other services,
`
`OCLC and its members are responsible for maintaining the WorldCat database,9
`
`used by independent and institutional libraries throughout the world.
`
`15. OCLC also provides its members online access to MARC records
`
`through its OCLC bibliographic database. When an OCLC member institution
`
`acquires a work, it creates a MARC record for this work in its computer catalog
`
`system in the ordinary course of its business. MARC records created at the Library
`
`of Congress are directly uploaded or may be tape-loaded into the OCLC database
`
`through a subscription to MARC Distribution Services daily or weekly. Once the
`
`MARC record is created by a cataloger at an OCLC member institution or is tape-
`
`loaded from a participating institution, the MARC record is then made available to
`
`any other OCLC members online, and therefore made available to the public.
`
`Accordingly, once the MARC record is created by a cataloger at an OCLC member
`
`institution or is tape-loaded from the Library of Congress or another library
`
`anywhere in the world, any publication corresponding to the MARC record has
`
`been cataloged and indexed according to its subject matter such that a person
`
`
`
`8 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`Library Center, Incorporated (available at
`https://www.oclc.org/content/dam/oclc/membership/articles-of-incorporation.pdf).
`9 http://www.worldcat.org/
`
`7
`
`AHM, Exh. 1011, p. 8
`
`
`
`interested in that subject matter could, with reasonable diligence, locate and access
`
`the publication through any library with access to the OCLC bibliographic
`
`database or through the Library of Congress.
`
`16. When an OCLC member institution creates a new MARC record,
`
`OCLC automatically supplies the date of creation for that record. The date of
`
`creation for the MARC record appears in the fixed field (008), characters 00
`
`through 05. The MARC record creation date reflects the date on which, or shortly
`
`after which, the item was first acquired or cataloged. Initially, field 005 of the
`
`MARC record is automatically populated with the date the MARC record was
`
`created in year, month, day format (YYYYMMDD) (some of the newer library
`
`catalog systems also include hour, minute, second (HHMMSS)). Thereafter, the
`
`library’s computer system may automatically update the date in field 005 every
`
`time the library updates the MARC record (e.g., to reflect that an item has been
`
`moved to a different shelving location within the library). Field 005 is visible
`
`when viewing a MARC record via an appropriate computerized interface, but
`
`when a MARC record is printed to hardcopy, no “005” label appears. The initial
`
`field 005 date (i.e., the date the MARC record was created) does appear, however,
`
`next to the label “Entered.”10 The date upon which the most recent update to field
`
`
`10 In this report, I sometimes refer to the “Entered” entry as Field 008, characters
`00-05. Field 005 is visible when viewing a MARC record via an appropriate
`
`8
`
`AHM, Exh. 1011, p. 9
`
`
`
`005 occurred also appears, next to the label “Replaced.” Thus, when an item’s
`
`MARC record has been printed to hardcopy—as is the case with the exhibits to this
`
`report—the date reflected next to the label “Entered” is necessarily on or after the
`
`date the library first cataloged and indexed the underlying item.
`
`17. Once one library has cataloged and indexed a publication by creating
`
`a MARC record for that publication, other libraries that receive the publication do
`
`not create additional MARC records—the other libraries instead rely on the
`
`original MARC record. They may update or revise the MARC record to ensure
`
`accuracy, but they do not replace or duplicate it. This practice does more than save
`
`libraries from duplicating labor. It also enhances the accuracy of MARC records.
`
`Further, it allows librarians around the world to know that a particular MARC
`
`record is authoritative (in contrast, a hypothetical system wherein duplicative
`
`records were created would result in confusion as to which record is authoritative).
`
`18. The date of creation of the MARC record by a cataloger at an OCLC
`
`member institution reflects when the underlying item is accessible to the public.
`
`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
`
`computerized interface. But when a MARC record is printed directly to hardcopy
`from the OCLC database, the “005” label is not shown. The date in the 005 field
`instead appears next to the label “Replaced.”
`
`
`
`9
`
`AHM, Exh. 1011, p. 10
`
`
`
`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.
`
`19. Catalogers can create MARC records for all types of print, online, and
`
`digital resources. For example, MARC records cover serial publications, including
`
`both serially published monographs and journals. OCLC hosts MARC records for
`
`more than 320 million serial publications. Serial publications are those
`
`publications that have the same collective title but are intended to be continued
`
`indefinitely with enumeration such as a volume or issue number (e.g., magazines,
`
`journals, etc.). In the OCLC bibliographic database, the first issue or volume of
`
`the monographic serial is typically cataloged (i.e., a corresponding MARC record
`
`is created), but the date is left open-ended with the use of a punctuation mark such
`
`as a dash. MARC records for serial publications represent the entire run of the
`
`title. With knowledge of the first issue or volume published, future issues or
`
`volumes can be predicted based on the information provided in the MARC record,
`
`10
`
`AHM, Exh. 1011, p. 11
`
`
`
`for example in field 362. In my extensive professional experience, is it highly
`
`unusual for a library to stop collecting and shelving a serial publication prior to the
`
`time of its cessation. If a subscription to a serial publication ends or is cancelled,
`
`the library will denote that it has stopped receiving new issues or volumes by
`
`filling in the end date in the MARC record.
`
`20. The handling of printed journal subscriptions is shown on the covers
`
`of individual issues. As was the best practice among libraries, issues arrived at a
`
`central facility and were immediately received, verified as part of a subscription,
`
`checked in, and stamped with the institution’s name and date. Determining that the
`
`issue was part of the library subscription ensured that the entire set of publications
`
`for the year had been received so that they could be professionally bound and
`
`retained. This process also verified that each of the published issues arrived so that
`
`the library staff did not have to request or claim an issue that did not arrive as
`
`expected. In large public libraries with branches and multi-campus libraries within
`
`academic institutions, the journals were sorted and delivered to the subscribing
`
`unit. The issues were frequently stamped again to acknowledge receipt. The new
`
`issue was placed in the public area; the older issue was stored so that it remained
`
`available.
`
`21. The foregoing process has been standard library practice longer than I
`
`have been working in the profession. I first learned the steps in the process in the
`
`11
`
`AHM, Exh. 1011, p. 12
`
`
`
`late 1970s and later supervised it. Although the checking in process has become
`
`automated and now links electronically to holdings records for the MARC record
`
`for each serial title, the manual stamping and placing the issue in a public area has
`
`not changed for 50 years. Unless I note otherwise below in reference to a specific
`
`serial publication, it is my expert opinion that this standard protocol was followed
`
`for each of the serial publications discussed below.
`
`22.
`
`In preparing this report, I used authoritative databases, such as the
`
`OCLC bibliographic database, the Library of Congress Online Catalog, the
`
`Internet Archive, and digital repository ResearchGate, to confirm citation details of
`
`the various publications discussed.
`
`23.
`
`Internet Archive.11 The Internet Archive, a 501(c)(3) non-profit, is an
`
`online digital archive of Internet web sites and web pages and other cultural
`
`artifacts in digital form. Like a paper library, the Internet Archive provides free
`
`access to researchers, historians, scholars, the print disabled, and the general
`
`public. The organization’s mission is to provide Universal Access to All
`
`Knowledge.
`
`24. Established in 1996 by archiving the Internet itself, the Internet
`
`Archive features 20+ years of web history accessible through the Wayback
`
`Machine and more than 625 library and other partners through the Archive-
`
`
`11 https://archive.org/
`
`12
`
`AHM, Exh. 1011, p. 13
`
`
`
`It program to identify important web pages. As the Internet Archive grew, so did
`
`its commitment to provide digital versions of other published works. Currently, the
`
`Internet Archive includes approximately 330 billion web pages, 20 million books
`
`and texts, 4.5 million audio recordings (including 180,000 live concerts), 4
`
`million videos (including
`
`1.6 million Television News
`
`programs),
`
`3
`
`million images, and 200,000 software programs.
`
`25. The Internet Archive maintains an archive of webpages collected from
`
`the Internet using software called a crawler. Crawlers automatically create a
`
`snapshot of webpages as they existed at a certain point in time. The WayBack
`
`Machine is an application using a crawler created by the Internet Archive to search
`
`its archive of web page URLs and to represent, graphically, the date of each
`
`crawler capture. The Internet Archive captures data that is openly available to
`
`users of the Internet. Some sites are “not archived because they were password
`
`protected, blocked by robots.txt, or otherwise inaccessible to our automated
`
`systems. Site owners might have also requested that their sites be excluded from
`
`the WayBack Machine.”12 Many Internet Archive captures made by the WayBack
`
`Machine have a banner at the top with the capture date prominently displayed.
`
`Other dates when captures of the same URL have been made are indicated to the
`
`
`12 https://help.archive.org/hc/en-us/articles/360004716091-Wayback-Machine-
`General-Information
`
`13
`
`AHM, Exh. 1011, p. 14
`
`
`
`right and left of the date provided in the banner. Some captures may lack this
`
`banner. In any case, the URL for the capture begins with the identification of the
`
`Internet Archive page (e.g., http://web.archive.org/web/) followed by information
`
`that dates and time stamps the capture as follows: year in yyyy, month in mm, day
`
`in dd, time code in hh:mm:ss (e.g., 20071120082013, or November 20, 2007 at
`
`8:20:13 a.m.). These elements are then followed by the URL of the original
`
`capture site. When links are active, the WayBack Machine is programed to
`
`produce the archived file with the closest available date (not the closest available
`
`prior date) to the page upon which the link appeared and was clicked. I and other
`
`professionals in the field of library and information resources are familiar with the
`
`Internet Archive and the Wayback Machine. As previously noted, the Internet
`
`Archive and the Wayback Machine are among the types of information reasonably
`
`relied upon by experts in my field for the purposes of forming opinions or
`
`inferences on matters that are the subject of their work.13
`
`26. ResearchGate. 14 A European-based
`
`social networking site
`
`for
`
`scientists and researchers to share papers, ask and answer questions, and find
`
`
`
`13 For more information about the Internet Archive see
`https://help.archive.org/hc/en-us/articles/360004651732-Using-The-Wayback-
`Machine
`14 https://www.researchgate.net/
`
`14
`
`AHM, Exh. 1011, p. 15
`
`
`
`collaborators, ResearchGate is the largest academic social network in terms of
`
`active users, although other services have more registered users.
`
`27. Features available to ResearchGate members include following a
`
`research interest and the work of other individual participants, a blogging feature
`
`for users to write short reviews on peer-reviewed articles, private chat rooms for
`
`sharing data, editing documents, or discussing confidential topics, and a research-
`
`focused job board. ResearchGate indexes self-published information on user
`
`profiles and suggests members to connect with others who have similar
`
`interests. Member questions are fielded to others who have identified relevant
`
`expertise on their profiles.
`
`28. As of 2021, ResearchGate had more than 20 million scientists, with
`
`its largest user-bases coming from Europe and North America. Most of
`
`ResearchGate's users are involved in medicine, biology, engineering, computer
`
`science, agricultural sciences, and psychology.
`
`29.
`
`Indexing. A researcher may discover material relevant to his or her
`
`topic in a variety of ways. One common means of discovery is to search for
`
`relevant information in an index of periodical and other publications. Having
`
`found relevant material, the researcher will then normally obtain it online, look for
`
`it in libraries, or purchase it from the publisher, a bookstore, a document delivery
`
`service, or other provider. Sometimes, the date of a document’s public
`
`15
`
`AHM, Exh. 1011, p. 16
`
`
`
`accessibility will involve both indexing and library date information. However,
`
`date information for indexing entries is often unavailable. This is especially true
`
`for online indices.
`
`30.
`
`Indexing services use a wide variety of controlled vocabularies to
`
`provide subject access and other means of discovering the content of documents.
`
`The formats in which these access terms are presented vary from service to service.
`
`31. Online
`
`indexing
`
`services
`
`commonly provide bibliographic
`
`information, abstracts, and full-text copies of the indexed publications, along with
`
`a list of the documents cited in the indexed publication. These services also often
`
`provide lists of publications that cite a given document. A citation of a document
`
`is evidence that the document was publicly available and in use by researchers no
`
`later than the publication date of the citing document.
`
`32. Online indexing services such as commonly provide bibliographic
`
`information, abstracts, and full-text copies of the indexed publications, along with
`
`a list of the documents cited in the indexed publication. These services also often
`
`provide lists of publications that cite a given document.
`
`33. A citation of a document by another is evidence that the document
`
`was publicly available and in use no later than the publication date of the citing
`
`document.
`
`16
`
`AHM, Exh. 1011, p. 17
`
`
`
`IV. PRELIMINARIES
`34.
`Scope of this declaration. I am not an attorney and will not offer
`
`opinions on the law. I am, however, rendering my expert opinion on the
`
`authenticity of the documents referenced herein and when and how each of these
`
`documents was disseminated or otherwise made available to the extent that persons
`
`interested and ordinarily skilled in the subject matter or art, exercising reasonable
`
`diligence, could have located the documents before April 24, 2002.
`
`35.
`
`I am informed by counsel that a printed publication qualifies as
`
`publicly accessible as of the date it was disseminated or otherwise made available
`
`such that a person interested in and ordinarily skilled in the relevant subject matter
`
`could locate it through the exercise of ordinary diligence.
`
`36. While I understand that the determination of public accessibility under
`
`the foregoing standard rests on a case-by-case analysis of the facts particular to an
`
`individual publication, I also understand that a printed publication is rendered
`
`“publicly accessible” if it is cataloged and indexed by a library such that a person
`
`interested in the relevant subject matter could locate it exercising reasonable
`
`diligence (i.e., I understand that cataloging and indexing by a library in a manner
`
`that permits a person of ordinary skill in the relevant subject matter to locate the
`
`publication is sufficient, though there are other ways that a printed publication may
`
`qualify as publicly accessible). One manner of sufficient indexing is indexing
`
`17
`
`AHM, Exh. 1011, p. 18
`
`
`
`according to subject matter category. I understand that the cataloging and indexing
`
`by a single library of a single instance of a particular printed publication is
`
`sufficient, even if the single library is in a foreign country. I understand that, even
`
`if access to a library is restricted, a printed publication that has been cataloged and
`
`indexed therein is publicly accessible so long as a presumption is raised that the
`
`portion of the public concerned with the relevant subject matter would know of the
`
`printed publication. I also understand that the cataloging and indexing of
`
`information that would guide a person interested in the relevant subject matter to
`
`the printed publication, such as the cataloging and indexing of an abstract for the
`
`printed publication, is sufficient to render the printed publication publicly
`
`accessible.
`
`37.
`
`I understand that routine business practices, such as general library
`
`cataloging and indexing practices, can be used to establish an approximate date on
`
`which a printed publication became publicly accessible.
`
`38. Persons of ordinary skill in the art. I am told by counsel that the
`
`subject matter of this proceeding relates generally to a secure real-time operating
`
`system based on Java, and the specification primarily concerns improvements to
`
`Jini/Java framework to establish a secured environment for multiple Java Virtual
`
`Machines. The primary features relate to detecting and adding new devices to a
`
`computer system.
`
`18
`
`AHM, Exh. 1011, p. 19
`
`
`
`39.
`
`I have been informed by counsel that a “person of ordinary skill in the
`
`art at the time of the invention” (POSITA) is a hypothetical person who is
`
`presumed to be familiar with the relevant field and its literature at the time of the
`
`inventions. This hypothetical person is also a person of ordinary creativity,
`
`capable of understanding the scientific principles applicable to the pertinent field.
`
`40.
`
`I am told by counsel that persons of ordinary skill in this subject
`
`matter or art would have had at least a bachelor’s degree in electrical or computer
`
`engineering, or a closely related field, and two years of work experience with
`
`computing systems, connected devices, or related fields (e.g., applications for
`
`control devices). A person with less or different education but more relevant
`
`practical experience, or vice versa, may also meet this standard.
`
`41.
`
` It is my opinion that such a person would have been engaged in
`
`research, learning through study and practice in the field and possibly through
`
`formal instruction the bibliographic resources relevant to his or her research. In the
`
`early 2000s such a person would have had access to a vast array of long-
`
`established print resources in development of methods, devices, or manuals,
`
`program manuals, computer systems, or presentations as well as to a rich set of
`
`online resources providing indexing information, abstracts, and full text services
`
`for development of methods, devices, or manuals related to wireless connection of
`
`devices.
`
`19
`
`AHM, Exh. 1011, p. 20
`
`
`
`42. Based on my experience working
`
`in research
`
`libraries with
`
`researchers having the qualifications described above, or even lesser qualifications,
`
`it is my opinion that such researchers would have been able to locate the material
`
`discussed herein on their own or with the assistance of a research librarian with
`
`relative ease using the tools and resources described herein.
`
`V.
`
`SPECIFICATION OF THE BLUETOOTH® SYSTEM
`43.
`Specification of the Bluetooth® System, Version 1.1 (“Bluetooth
`
`SIG”) [Exhibit 1009 and Exhibit 1010]. Exhibit 1009 and Exhibit 1010 are a two-
`
`volume set, Specification of the Bluetooth® System, version 1.1, prepared by the
`
`Promoter Members of Bluetooth SIG, Incorporated (hereafter “Bluetooth SIG”).
`
`Exhibit 1009 and Exhibit 1010 are a true and accurate copy of the two-volume set
`
`which includes the following: Volume 1, Core and Volume 2, Profiles. The
`
`Specification of the Bluetooth® System, version 1.1, is listed on the IEEE 802.15.1
`
`Offsites Links Page. 15 The two-volume set is identified as Version 1.1 dated
`
`February 22, 2001, and
`
`lists
`
`the publicly available Bluetooth® website
`
`(www.bluetooth.com) from which the document could be downloaded. I obtained
`
`the documents filed as Exhibit 1009 and Exhibit 1010 from the WayBack
`
`
`
`15 https://ieee802.org/15/Bluetooth/index.html (links no longer function)
`
`20
`
`AHM, Exh. 1011, p. 21
`
`
`
`Machine.16 The WayBack Machine captured the Bluetooth® website on December
`
`17, 2001 (see Attachment 1a and Attachment 1b).
`
`44. Specifically, the text of the two-volume set, Specification of the
`
`Bluetooth® System, version 1.1, is complete; no pages are missing, and the text on
`
`each page appears to flow seamlessly from one page to the next; further, there are
`
`no visible alterations to the document. Exhibit 1009 and Exhibit 1010 were found
`
`within the custody of the issuing organization – a place where, if authentic, a copy
`
`of this technical specification documentation would likely be.
`
`45. Exhibit 1009 and Exhibit 1010 are true and correct copies of the two-
`
`volume set in a condition that creates no suspicion about its authenticity. Based on
`
`the date recorded on these documents, it is my opinion that the Specification of the
`
`Bluetooth® System, version 1.1, was available to the public on February 22, 2001,
`
`or shortly thereafter.
`
`VI. SUMMARY OF OPINIONS
`46.
`In view of the foregoing, it is my opinion that the publications
`
`described above were publicly available on or about the corresponding date listed
`
`in the table below:
`
`
`
`16
`https://web.archive.org/web/20011217222220/http://www.bluetooth.com/pdf/Bluet
`ooth_11_Specifications_Book.pdf
`
`21
`
`AHM, Exh. 1011, p. 22
`
`
`
` Document | Publication |
`
`
`
` Publicly
`Available
`Exhibit Bluetooth. Specification ofthe Bluetooth System.|February 22,
`
`1009 Version 1.1. Volume 1: Core. February 22,2001.|2001
`
`
`Exhibit Bluetooth. Specification ofthe Bluetooth System.|February 22,
`1010
`Version 1.1. Volume2: Profiles. February 22,
`2001
`2001.
`
` es
`
`47.
`
`In signing this Declaration, I recognize that the Declaration will be
`
`filed as evidence in a case before the Patent Trial and Appeal Board of the United
`
`States Patent and Trademark Office.
`
`I also recognize that I may be subject to
`
`cross-examination in
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