IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LIBERTY ENERGY,INC. AND LIBERTY OILFIELD SERVICES LLC,
`
`Petitioners,
`
`U.S. WELL SERVICES, LLC,
`
`Patent Owner.
`
`Patent 10,598,258
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, Ph.D.
`———————eSee
`
`Dated: October 4, 2024
`
`LIBERTY EXHIBIT 1037, Page 1
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`LIBERTY EXHIBIT 1037, Page 1
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LIBERTY ENERGY,INC. AND LIBERTY OILFIELD SERVICES LLC,
`
`Petitioners,
`
`U.S. WELL SERVICES, LLC,
`
`Patent Owner.
`
`Patent 10,598,258
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, Ph.D.
`———————eSee
`
`Dated: October 4, 2024
`
`LIBERTY EXHIBIT 1037, Page 1
`
`LIBERTY EXHIBIT 1037, Page 1
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`
`
`I, Sylvia D. Hall-Ellis, declare as follows:
`
`I.
`
`INTRODUCTION
`1.
`My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`Liberty Energy, Inc. and Liberty Oilfield Services, LLC, the Petitioners.
`
`2.
`
`I have written this declaration at the request of the Petitioners to
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`provide my expert opinion regarding the authenticity and public availability of
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`several textbooks. My declaration sets forth my opinions in detail and provides the
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`basis for my opinions regarding the authenticity and public availability of these
`
`publications. If called to testify in the above-captioned proceeding, I will testify
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`with regard to the opinions and bases set forth below.
`
`3.
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`I reserve the right to supplement or amend my opinions, and bases for
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`them, in response to any additional evidence, testimony, discovery, argument,
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`and/or other additional information that may be provided to me after the date of
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`this declaration.
`
`4.
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`I am being compensated for my time spent working on this matter at
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`my normal consulting rate of $400 per hour, plus reimbursement for any additional
`
`reasonable expenses. My compensation is not in any way tied to the content of this
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`declaration, the substance of my opinions, or the outcome of this proceeding. I
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`have no other interests in this proceeding or with any of the parties.
`
`1
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`LIBERTY EXHIBIT 1037, Page 2
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`5.
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`All of the materials that I considered and relied upon are discussed
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`explicitly in this declaration.
`
`II. QUALIFICATIONS
`6.
`I am currently an Adjunct Professor in the School of Information at
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`San José State University in San José, California. I obtained a Master of Library
`
`Science from the University of North Texas in 1972 and a Ph.D. in Library Science
`
`from the University of Pittsburgh in 1985. Over the last fifty years, I have held
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`various positions in the field of library and information resources. I was first
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`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
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`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
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`Training of Catalogers and the Competencies and Education for a Career in
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`Cataloging Interest Group. I also served as the founding Chair of the ALCTS
`
`Division’s Task Force on Competencies and Education for a Career in Cataloging.
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`Additionally, I have served as the Chair for the ALA Office of Diversity’s
`
`Committee on Diversity, as a member of the REFORMA National Board of
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`Directors, and as a member of the Editorial Board for the ALCTS premier
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`2
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`LIBERTY EXHIBIT 1037, Page 3
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`
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`cataloging journal, Library Resources and Technical Services. Currently I serve as
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`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.
`
`I have been deposed twenty times.
`
`10. My full curriculum vitae is provided as Attachment A to this
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`declaration.
`
`III. PRELIMINARIES
`A.
`Scope of Declaration and Legal Standards
`11.
`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 on 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 ordinary diligence, could have
`
`located the documents.
`
`12.
`
`I am informed by counsel that a printed publication qualifies as
`
`publicly accessible as of the date it was disseminated or otherwise made available
`
`3
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`LIBERTY EXHIBIT 1037, Page 4
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`
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`such that a person interested in and ordinarily skilled in the relevant subject matter
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`could locate it through the exercise of ordinary diligence.
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`13. While I understand that the determination of public accessibility under
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`the foregoing standard rests on a case-by-case analysis of the facts particular to an
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`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 (i.e., I understand that
`
`cataloging and indexing by a library is sufficient, though there are other ways that
`
`a printed publication may qualify as publicly accessible). One manner of sufficient
`
`indexing is indexing according to subject matter category. I understand that the
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`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
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`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
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`printed publication publicly accessible.
`
`4
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`LIBERTY EXHIBIT 1037, Page 5
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`14.
`
`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.
`
`B.
`15.
`
`Persons of ordinary skill in the art.
`I am told by counsel that the subject matter of this proceeding relates
`
`to oil and gas well drilling, completion, and production.
`
`16.
`
`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.
`
`17.
`
`I am told by counsel that persons of ordinary skill in this subject
`
`matter or art would have either (1) a Bachelor of Science in Mechanical
`
`Engineering, Electrical Engineering, Petroleum Engineering or an equivalent field
`
`as well as at least 2 years of academic or industry experience in the oil and gas
`
`industry, including well drilling, completion, or production, or (2) at least four
`
`years of industry experience in the oil and gas industry including well drilling,
`
`completion, or production. I have been further informed by counsel that a person of
`
`ordinary skill in the art would have been familiar with and able to understand the
`
`5
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`LIBERTY EXHIBIT 1037, Page 6
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`
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`information known in the art relating to these fields, including the publications
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`discussed in this declaration.
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`18.
`
`It is my opinion that such a person would have been engaged in
`
`research, learning, study, and practice in the field, and possibly formal instruction
`
`so that bibliographic resources relevant to his or her research would be familiar. By
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`not later than the mid-1980s, such a person would have had access to a vast array
`
`of long-established print resources in telecommunications as well as to a rich set of
`
`online resources providing indexing information, abstracts, and full text services
`
`for publications relevant to the field of this dispute.
`
`IV. LIBRARY PROFESSIONAL PRACTICES
`19.
`In preparing this declaration, I used authoritative databases, such as
`
`the OCLC bibliographic database, the Library of Congress Online Catalog, and the
`
`Library of Congress Subject Authorities, to confirm citation details of the various
`
`publications discussed. Unless I note otherwise below in reference to a specific
`
`serial publication, it is my expert opinion that this standard protocol was followed
`
`for the serial publication discussed below.
`
`20.
`
`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 periodicals and other publications. Having
`
`found relevant material, the researcher will then normally obtain it online, look for
`
`6
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`LIBERTY EXHIBIT 1037, Page 7
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`
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`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 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.
`
`21.
`
`Indexing services use a wide variety of controlled vocabularies to
`
`provide subject access and other means of discovering the content of documents.
`
`The Library of Congress Subject Authorities includes standard forms of terms and
`
`cross references that are included in bibliographic records. Subject headings are
`
`terms that an individual seeking a document regardless of format can enter in the
`
`search bar of the online catalog. Subjects also connect an authenticated term (one
`
`included in the Library of Congress subject headings list) with related, broader,
`
`and narrower terms. The formats in which these access terms are presented vary
`
`from service to service.
`
`22. 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. Prominent indexing services
`
`include Scopus, the IEEE Xplore database, the ACM Digital Library, Google
`
`7
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`LIBERTY EXHIBIT 1037, Page 8
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`
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`Scholar, and the Internet Archive.
`
`V.
`
`LIBRARY CATALOGING PRACTICES
`23.
`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 1960’s
`
`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
`
`24.
`
`Since at least the early 1970s and continuing to the present day,
`
`MARC has been the primary communications protocol for the transfer and storage
`
`1 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliographic/ (last visited September 2, 2024).
`2 Almost every major library in the world is MARC-compatible. See, e.g., MARC
`Frequently Asked Questions (FAQ), Library of Congress,
`https://www.loc.gov/marc/faq.html (last visited September 2, 2024) (“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.
`
`8
`
`LIBERTY EXHIBIT 1037, Page 9
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`
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`of bibliographic metadata in libraries.3 As explained by the Library of Congress:
`
`You could devise your own method of organizing the
`bibliographic information, but you would be isolating your library,
`limiting its options, and creating much more work for yourself. Using
`the MARC standard prevents duplication of work and allows libraries
`to better share bibliographic resources. Choosing to use MARC
`enables libraries to acquire cataloging data that is predictable and
`reliable. If a library were to develop a “home-grown” system that did
`not use MARC records, it would not be taking advantage of an
`industry-wide standard whose primary purpose
`is
`to
`foster
`communication of information.
`
`Using the MARC standard also enables libraries to make use of
`commercially available library automation systems to manage library
`operations. Many systems are available for libraries of all sizes and
`are designed to work with the MARC format. Systems are maintained
`and improved by the vendor so that libraries can benefit from the
`latest advances in computer technology. The MARC standard also
`allows libraries to replace one system with another with the assurance
`that their data will still be compatible.
`
`Why Is a MARC Record Necessary? LIBRARY OF CONGRESS. 4
`
`3 A complete history of the development of MARC can be found in MARC: Its
`History and Implications by Henrietta D. Avram (Washington, DC: Library of
`Congress, 1975) and available online from the Hathi Trust
`(https://babel.hathitrust.org/cgi/pt?id=mdp.39015034388556;view=1up;seq=1; last
`visited September 2, 2024).
`
`9
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`LIBERTY EXHIBIT 1037, Page 10
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`
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`25.
`
`Thus, almost every major library in the world is MARC-compatible.
`
`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS. 5
`
`(“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
`
`standard (reaffirmed in 2016) for Information Interchange Format. The full text of
`
`the standard is available from the Library of Congress.6
`
`26. 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 transcribed
`
`in Field 100; an item’s International Standard Book Number (“ISBN”) consisting
`
`of ten or thirteen digits is transcribed in Field 020; an item’s International Standard
`
`Serial Number (“ISSN”) is transcribed in Field 022; the Library of Congress
`
`classification notation is recorded in Field 050; and the publication date is recorded
`
`4 http://www.loc.gov/marc/umb/um01to06.html#part2
`5 https://www.loc.gov/marc/faq.html
`6 http://www.loc.gov/marc/bibliographic/
`
`10
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`LIBERTY EXHIBIT 1037, Page 11
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`
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`in Field 260 under the subfield “c.” If a work is a periodical, then its publication
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`frequency is recorded in Field 310, and the publication dates (e.g., the first and last
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`publication) are recorded in Field 362, which is also referred to as the
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`enumeration/chronology field.7
`
`27.
`
`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
`
`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 declaration. Where this “mouse
`
`over” option was not available, I consulted the Directory of OCLC Libraries in
`
`order to identify the institution that created the MARC record.8
`
`28. 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.9 For example, 6XX fields are termed “Subject
`
`Access Fields.”10 Among these, for example, is the 650 field; this is the “Subject
`
`7 http://www.loc.gov/marc/bibliographic/bd3xx.html
`8 https://www.oclc.org/en/contacts/libraries.html
`9 http://www.loc.gov/marc/bibliographic/
`10 http://www.loc.gov/marc/bibliographic/bd6xx.html
`
`11
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`LIBERTY EXHIBIT 1037, Page 12
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`
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`Added Entry – Topical Term” field.11 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)).” Id. Further, MARC records include call numbers,
`
`which themselves include a classification number. For example, the 050 field is the
`
`“Library of Congress Call Number.” 12 A defined portion of the Library of
`
`Congress Call (LCC) 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. Further, the 082 field is the “Dewey Decimal Call Number.”13
`
`A defined portion of the Dewey Decimal Call (DDC) Number is the classification
`
`number, and “source of the classification number is the Dewey Decimal
`
`Classification and Relative Index.” Thus, included in the 082 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
`
`11 http://www.loc.gov/marc/bibliographic/bd650.html
`12 http://www.loc.gov/marc/bibliographic/bd050.html
`13 http://www.loc.gov/marc/bibliographic/bd082.html
`
`12
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`LIBERTY EXHIBIT 1037, Page 13
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`
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`classification scheme) and uses it consistently. When the Library of Congress
`
`assigns the LCC classification number, it appears as part of the 050 field. When the
`
`Library of Congress assigns the DDC classification number, it appears as part of
`
`the 082 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.
`
`29.
`
`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,
`
`literary and educational knowledge and information.” 14 Among other services,
`
`OCLC and its members are responsible for maintaining the WorldCat database
`
`(http://www.worldcat.org/), used by
`
`independent and
`
`institutional
`
`libraries
`
`throughout the world.
`
`14 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).
`
`13
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`LIBERTY EXHIBIT 1037, Page 14
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`
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`30. 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 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 the Library
`
`of Congress, 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 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.
`
`31. 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
`
`14
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`LIBERTY EXHIBIT 1037, Page 15
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`
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`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 and shows the
`
`date upon which the most recent update occurred.
`
`32. 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).
`
`33. Catalogers can create MARC records for all types of print, online, and
`
`digital resources. The date of creation of the MARC record by a cataloger at an
`
`15
`
`LIBERTY EXHIBIT 1037, Page 16
`
`
`
`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 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.
`
`VI. PUBLICATION 1: EXHIBIT 1012 (“JELASKA”)
`34.
`Exhibit 1012 is a selection from the book titled Gears and Gear
`
`Drives by Damir Jelaska (hereafter “Jelaska”) and issued by John Wiley & Sons in
`
`2012. Exhibit 1012 is a true and correct copy of title page, title page verso, table
`
`of contents, preface, Chapter 1, “Introduction” (pages 1-10) and Chapter 6,
`
`“Planetary Gear Trains” (pages 331-386). I obtained this book from counsel. The
`
`selected text in Exhibit 1012 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 1012 can be found within the
`
`16
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`LIBERTY EXHIBIT 1037, Page 17
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`
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`custody of a library – a place where, if authentic, a copy of this book would likely
`
`be. Exhibit 1012 is a true and correct copy in a condition that creates no suspicion
`
`about its authenticity.
`
`35. Attached hereto as Attachment 1A is a true and correct copy of the
`
`MARC record for this monograph from the Arthur Lakes Library at Colorado
`
`School of Mines (Golden, Colorado) online catalog. The library ownership is
`
`indicated by the presence of the library’s code (“COP”) in field 049. The library
`
`continues to update and enhance this MARC record to meet current cataloging
`
`rules. The most recent enhancement to the MARC record occurred on January 12,
`
`2015, as shown in field 005 (“20150112”). I personally identified and retrieved the
`
`library catalog record which is Attachment 1A.
`
`36. Based on finding a print copy of the book titled Gears and Gear
`
`Drives in the Arthur Lakes Library at the Colorado School of Mines and MARC
`
`record in its online library catalog attached as Attachment 1A, it is my opinion that
`
`the Jelaska book was publicly available on or shortly after May 4, 2012, as shown
`
`in field 008 (“120504”). The International Standard Book Number (ISBN) on
`
`Exhibit 1012 (978-1-1199-4130-9) matches the ISBN in first field 020 of
`
`Attachment 1A. Therefore, Exhibit 1012 is the same book as the one that the
`
`cataloger in the Arthur Lakes Library at the Colorado School of Mines used to
`
`create the MARC record that is Attachment 1A.
`
`17
`
`LIBERTY EXHIBIT 1037, Page 18
`
`
`
`37. Based on finding a print copy of the Jelaska book in the Library of
`
`Congress and MARC record in its online library catalog attached as Attachment
`
`1B, it is my opinion that the book titled Gears and Gear Drives was publicly
`
`available on or shortly after May 16, 2013, as shown in field 955 (“2013-05-16”).
`
`38. Attached hereto as Attachment 1C is a true and correct copy of the
`
`MARC record for the Jelaska book obtained from the OCLC bibliographic
`
`database. I personally identified and retrieved the MARC record that is
`
`Attachment 1C. As previously noted, the library that created the record is recorded
`
`in field 040 with a unique library code. For Attachment 1C that library code is
`
`“DLC,” which means that the MARC record for this book was created at the
`
`Library of Congress as part of the Cataloging in Publication (CIP) Program.15 A
`
`cataloger prepares basic information about the forthcoming book which is included
`
`on the verso of the title page (also called the copyright page). The information is
`
`provided to save time needed for the cataloging process at the library after the
`
`book is purchased. The CIP data includes the author (field 100), title and subtitle
`
`(field 245), ISBN (field 020), suggested subject headings (field 650), classification
`
`numbers for the Library of Congress classification number (field 050), and the
`
`Dewey Decimal classification number (field 082). These data elements are
`
`included in the MARC record that the Library of Congress contributes to the
`
`15 https://www.loc.gov/publish/cip/
`
`18
`
`LIBERTY EXHIBIT 1037, Page 19
`
`
`
`OCLC bibliographic database. As can be seen in field 008 (“Date entered on file”)
`
`of the MARC record for this exhibit, a cataloger at the Library of Congress created
`
`OCLC record number 793187632 on May 4, 2012 (“120504”). The library
`
`continues to update and enhance this MARC record to meet current cataloging
`
`rules. The most recent enhancement to Attachment 1C occurred on February 10,
`
`2024, as shown in field 005 (“20240210”). I personally identified and retrieved the
`
`MARC record that is Attachment 1C.
`
`39. Attachment 1C further includes an entry in field 050 (“TJ184 $b .J415
`
`2012”) as described above, this includes a subject matter classification number
`
`consistent with the Library of Congress classification system (analogous to the
`
`Dewey Decimal classification system) and an entry in field 082 (“621.8/33”), a
`
`subject matter consistent with the Dewey Decimal classification system.
`
`Attachment 1C further includes a descriptor term reading “Gearing” (see
`
`Attachment 1D, Library of Congress subject heading sh85053623) in the 650 field.
`
`Thus, as of its cataloging, the publication corresponding to the MARC record
`
`attached hereto as Attachment 1C was indexed according to its subject matter by
`
`virtue of at least three independently sufficient classifications: the field 050 entry,
`
`the field 082 entry, and the field 650 entry. Further, as of May 4, 2012, the MARC
`
`record attached hereto as Attachment 1C was accessible through any library with
`
`access to the OCLC bibliographic database or the online catalog at a library that
`
`19
`
`LIBERTY EXHIBIT 1037, Page 20
`
`
`
`added this book to its collection, which means that the corresponding publication
`
`was publicly available on or before that same date through any library with access
`
`to the OCLC bibliographic database or through an individual library.
`
`40. WorldCat indicates that the book titled Gears and Gear Drives as
`
`cataloged at the Library of Congress is currently available from 869 libraries.16 In
`
`view of above, the book titled Gears and Gear Drives was publicly available on or
`
`shortly after May 16, 2013, because by that date it had been cataloged and indexed
`
`at the Library of Congress, made part of the OCLC bibliographic database, and
`
`received in the Arthur Lakes Library at the Colorado School of Mines. For these
`
`reasons, it is my opinion that Exhibit 1012 was published and accessible to the
`
`public on or shortly after May 16, 2013.
`
`VII. PUBLICATION 2: EXHIBIT 1013 (“TUTTEROW”)
`41.
`Exhibit 1013 is a book titled Variable Speed Pumping: A Guide to
`
`Successful Applications prepared at the Europump and Hydraulic Institute
`
`(hereafter “Tutterow”) and issued by Elsevier with a 2004 copyright date. Exhibit
`
`1013 is a true and correct copy of title page, title page verso, table of contents,
`
`thirteen chapters, and eight appendices. I obtained this book from counsel. The
`
`selected text in Exhibit 1013 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
`
`16 https://search.worldcat.org/title/793187632
`
`20
`
`LIBERTY EXHIBIT 1037, Page 21
`
`
`
`no visible alterations to the document. Exhibit 1013 can be found within the
`
`custody of a library – a place where, if authentic, a copy of this book would likely
`
`be. Exhibit 1013 is a true and correct copy in a condition that creates no suspicion
`
`about its authenticity.
`
`42. Attached hereto as Attachment 2A is a true and correct copy of the
`
`MARC record for this monograph from the University of Texas – Austin Libraries
`
`online catalog. The library ownership is indicated by the presence of the library’s
`
`code (“IXA”) in field 049. The library continues to update and enhance this
`
`MARC record to meet current cataloging rules. The most recent enhancement to
`
`the MARC record occurred on August 24, 2004, as shown in field 005
`
`(“20040824”). I personally identified and retrieved the library catalog record
`
`which is Attachment 2A.
`
`43. Based on finding a print copy of the book titled Variable Speed
`
`Pumping: A Guide to Successful Applications in the University of Texas – Austin
`
`Libraries and MARC record in its online library catalog attached as Attachment
`
`2A, it is my opinion that the Tutterow book was publicly available on or shortly
`
`after June 3, 2004, as shown in field 008 (“040603”). The International Standard
`
`Book Number (ISBN) on Exhibit 1013 (1-85617-449-2) matches the ISBN in field
`
`020 of Attachment 2A. Therefore, Exhibit 1013 is the same book as the one that
`
`the cataloger in the University of Texas –
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