UNITED STATES PATENT AND TRADEMARK OFFICE
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Human Power of N Company
`
`Petitioner
`
`
`v.
`
`
`Heartbeet Ltd.
`
`Patent Owner
`
`______________
`
`Patent 11,083,747
`______________
`
`DECLARATION OF SYLVIA HALL-ELLIS, PH.D.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Human Power of N Company
`EX1068
`Page 1 of 230
`
`
`______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`Human Power of N Company
`
`Petitioner
`
`
`v.
`
`
`Heartbeet Ltd.
`
`Patent Owner
`
`______________
`
`Patent 11,083,747
`______________
`
`DECLARATION OF SYLVIA HALL-ELLIS, PH.D.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Human Power of N Company
`EX1068
`Page 1 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`
`
`
`1.
`
`I, Sylvia D. Hall-Ellis, Ph.D., declare as follows:
`
`I.
`
`INTRODUCTION
`2. My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`Human Power of N Company (“the Petitioner”) who I am informed is a petitioner
`
`to this post grant review (PGR) proceeding related to U.S. Patent No. 11,083,747
`
`(“the ’747 Patent).
`
`3.
`
`I have written this declaration at the request of the Petitioner to
`
`provide my expert opinion regarding the authenticity and public availability of the
`
`publications identified in Section V below. My declaration sets forth my opinions
`
`in detail and provides the basis for my opinions regarding the authenticity and
`
`public availability of these publications. If called to testify in the above-captioned
`
`matter, I will testify with regard to the opinions and bases set forth below.
`
`4.
`
`I reserve the right to supplement or amend my opinions, and bases for
`
`them, in response to any additional evidence, testimony, discovery, argument,
`
`and/or other additional information that may be provided to me after the date of
`
`this declaration.
`
`5.
`
`As of the preparation and signing of this declaration, libraries across
`
`the nation are closed pursuant to an order of the federal and state governments due
`
`to the COVID-19 virus. However, were the libraries open, I would expect to be
`
`able to obtain paper copies of the documents in this declaration. Additionally, it is
`
`1
`
`Page 2 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`my typical practice to obtain a paper copy of each publication to further confirm
`
`
`
`my opinions that the documents were available prior to the alleged priority date of
`
`a patent under consideration. I reserve the right to supplement my declaration when
`
`the libraries reopen to provide such information.
`
`6.
`
`I am being compensated for my time spent working on this matter at
`
`my normal consulting rate of $300 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 proceeding. I have no
`
`other interests in this proceeding or with any of the parties.
`
`7.
`
`All of the materials that I considered and relied upon are discussed
`
`explicitly in this declaration.
`
`II. QUALIFICATIONS
`8.
`I am currently an Adjunct Professor in the School of Information at
`
`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
`
`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.
`
`2
`
`Page 3 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`
`
`
`9.
`
`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 REFORMA National Board of
`
`Directors, and as a member of the Editorial Board for the ALCTS premier
`
`cataloging journal, Library Resources and Technical Services. Currently I serve as
`
`a Co-Chair for the Library Research Round Table of the American Library
`
`Association.
`
`10.
`
`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.
`
`11.
`
`I have been deposed twenty times: (1) Symantec Corp. vs. Finjan,
`
`Inc., Petition for Inter Partes Review of U.S. Patent No. 7,613,926, May
`
`26, 2016, on behalf of Symantec Corp.; (2) Symantec Corp. vs. Finjan, Inc.,
`
`3
`
`Page 4 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`14-cv-299-HSG (N.D. Cal.), on behalf of Symantec Corp., September 14,
`
`
`
`2017; (3) one deposition for ten matters: Intellectual Ventures I LLC vs. AT&T
`
`Mobility LLC; AT&T Mobility II LLC, New Cingular Wireless Services, Inc., SBC
`
`Internet Services, Inc., Wayport, Inc., and Cricket Wireless LLC, C.A. No. 12-193
`
`(LPS); Intellectual Ventures II LLC vs. AT&T Mobility LLC; AT&T Mobility II
`
`LLC, New Cingular Wireless Services, Inc., SBC Internet Services, Inc., Wayport,
`
`Inc., and Cricket Wireless LLC, C.A. No. 13-1631 (LPS); Intellectual Ventures I
`
`LLC vs. T-Mobile USA, Inc. and T-Mobile US, Inc., C.A. No. 13-1632 (LPS);
`
`Intellectual Ventures II LLC vs. T-Mobile USA, Inc. and T-Mobile US, Inc., C.A.
`
`No. 13-1633 (LPS); Intellectual Ventures I LLC, vs. Nextel Operations, Inc., Sprint
`
`Spectrum L.P., Boost Mobile, LLC and Virgin Mobile USA, L.P., C.A. No. 13-1634
`
`(LPS); Intellectual Ventures II LLC vs. Nextel Operations, Inc., Sprint Spectrum
`
`L.P., Boost Mobile, LLC and Virgin Mobile USA, L.P., C.A. No. 13-1635 (LPS);
`
`Intellectual Ventures I LLC, vs. United States Cellular Corporation, C.A. No. 13-
`
`1636 (LPS); Intellectual Ventures I LLC vs. United States Cellular Corporation,
`
`C.A. No. 13-1637 (LPS); Intellectual Ventures II LLC vs. AT&T Mobility LLC,
`
`AT&T Mobility II LLC, New Cingular Wireless Services, Inc., C.A. No. 15-799
`
`(LPS); Intellectual Ventures I LLC vs. T-Mobile USA, Inc. and T-Mobile US, Inc.,
`
`C.A. No. 15-800 (LPS), on behalf of AT&T Mobility LLC; AT&T Mobility II
`
`LLC, Boost Mobile, LLC Cricket Wireless LLC, Nextel Operations, Inc., New
`
`4
`
`Page 5 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`Cingular Wireless Services, Inc., SBC Internet Services, Inc., Sprint Spectrum
`
`
`
`L.P., T-Mobile USA, Inc., T-Mobile US, Inc., United States Cellular Corporation
`
`Virgin Mobile USA, L.P., and Wayport, Inc., November 15, 2016; (4) Hitachi
`
`Maxell, LTD., v. Top Victory Electronics (Taiwan) Co. Ltd., et al., 2:14-cv-1121
`
`JRG-RSP (E.D. Texas), on behalf of Top Victory Electronics (Taiwan) Co. LTD,
`
`et. al., January 20, 2016; (5) Sprint Spectrum, L.P. vs. General Access Solutions,
`
`Ltd., Petition for Inter Partes Review of U.S. Patent No. 7,173,916, on behalf of
`
`Sprint Spectrum L.P., July 13, 2018; (6) Nichia Corporation vs. Vizio, Inc., 8:16-
`
`cv-00545; on behalf of Vizio, Inc., October 12, 2018; (7) Intellectual Ventures I
`
`LLC, vs. T-Mobile USA, Inc., T-Mobile US, Inc., Ericsson Inc., and
`
`Telefonaktiebolaget LM Ericsson, 2:17-cv-00557 (JRG), on behalf of T-Mobile
`
`USA, Inc., T-Mobile US, Inc., Ericsson Inc., and Telefonaktiebolaget LM
`
`Ericsson, October 19, 2018; (8) Pfizer, Inc. vs. Biogen, Inc., Petition for Inter
`
`Partes Review of U.S. Patent No. 8,821,873, on behalf of Pfizer, November 3,
`
`2018; (9) Finjan, Inc. vs. ESET, LLC and ESET SPOL. S.R.O., 3:17-cv-00183-
`
`CAB-BGS, on behalf of ESET, January 15, 2019; (10) Finjan, Inc. vs. Cisco
`
`Systems, Inc., 5:17-cv-00072-BLF-SVK, on behalf of Cisco Systems, Inc.,
`
`September 6, 2019; (11) Facebook, Inc., Instagram, LLC and Whatsapp Inc. vs.
`
`Blackberry Limited, Petition for Inter Partes Review of U.S. Patent No. 9,349,120
`
`B2, on behalf of Facebook, Inc., Instagram, LLC and Whatsapp Inc. December 20,
`
`5
`
`Page 6 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`2019; and, (12) 3Shape A/S and 3Shape Inc. vs. Align Technology, Inc., Petition
`
`
`
`for Inter Partes Review of U.S. Patent No. 7,156,661, IPR 2020-00222 and IPR
`
`2020-00223, August 10, 2020, on behalf of 3Shape A/S and 3Shape Inc.; (13)
`
`Finjan Inc. v. Rapid7, Inc. and Rapid7 LLC, Northern District of Delaware, 1:18-
`
`cv-01519-MN, September 15, 2020, on behalf of Rapid7 Inc. and Rapid7 LLC;
`
`(14) VLSI Technology LLC v. Intel Corporation, Western District of Texas, 6:19-
`
`cv-00254, 6:19-cv-00255, 6:19-cv-00256, September 23, 2020, on behalf of the
`
`Intel Corporation; (15) Finjan Inc. v. Sonicwall, Inc., Northern District of
`
`California, 5:17-cv-04467-BLF-HRL, October 27, 2020, on behalf of Sonicwall,
`
`Inc.; (16) VLSI Technology, LLC v. Intel Corporation, District of Delaware, 1:18-
`
`cv-00966-CFC-CJB, February 5, 2021, on behalf of the Intel Corporation; (17)
`
`Unified Patents, LLC v. 3BCOM, LLC, Petition for Inter Partes Review of U. S.
`
`Patent 7,127,210, February 11, 2021, on behalf of Unified Patents; (18) Finjan,
`
`Inc. v. Qualsys, Inc., Northern District of California, 4:18-cv-07229-YGR, March
`
`1, 2021, on behalf of Qualsys, Inc.; (19) Qualcomm, Inc. v. Monterey Research
`
`LLC, Petition for Inter Partes Review of U. S. Patent 6,534,805, May 6, 2021, on
`
`behalf of Qualcomm, Inc.; and, (20) Hulu, LLC v. Sound View Innovations, LLC,
`
`Petition for Inter Partes Review of U. S. Patent 5,806,062, May 14, 2021, on
`
`behalf of Hulu, LLC. I have not testified at trial.
`
`12. My full curriculum vitae is attached hereto as Attachment A.
`
`6
`
`Page 7 of 230
`
`
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`III. PRELIMINARIES
`A.
`Scope of Declaration and Legal Standards
`13.
`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 reasonable diligence, could have
`
`located the documents before the dates discussed below with respect to the specific
`
`documents.
`
`14.
`
`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.
`
`15. 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 (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
`
`7
`
`Page 8 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`indexing is indexing 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.
`
`16.
`
`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. I also understand that the
`
`indicia on the face of a reference, such as printed dates and stamps, are considered
`
`as part of the totality of the evidence.
`
`B.
`17.
`
`Persons of Ordinary Skill in the Art
`I am told by counsel that the subject matter of this proceeding
`
`generally relates to relates generally to food, supplements, and treatments—
`
`8
`
`Page 9 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`including those that comprise inorganic nitrates—and the use thereof to achieve
`
`
`
`certain biological benefits, including systolic blood pressure reductions.
`
`18.
`
`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.
`
`19.
`
`I am told by counsel that any of the following combinations of
`
`education and experience would have qualified someone as an ordinarily skilled
`
`artisan in that field of the ’747 Patent at the time of the invention:
`
`-
`
`20.
`
`an M.D. degree or a Ph.D. degree in biochemistry,
`pharmacology, nutrition chemistry, or kinesiology, and at least
`two years of post-doctoral research or clinical experience with
`physiology, biochemistry, or dietary supplements and
`formulation.
`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 information
`
`known in the art relating to these fields, including the publications discussed in this
`
`declaration.
`
`9
`
`Page 10 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`
`
`
`C. Use of Authoritative Databases
`21.
`In preparing this report, I used authoritative databases, such as the
`
`OCLC bibliographic database, the Library of Congress Online Catalog and the
`
`U.S. Copyright Office, to confirm citation details of the publication 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 publications
`
`discussed in Section V below.
`
`22.
`
`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.
`
`Online indexing services and digital repositories 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.
`
`23. OCLC bibliographic database. 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
`
`10
`
`Page 11 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`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.”1 Among other services, OCLC and its members are responsible for
`
`maintaining the WorldCat database,2 used by independent and institutional libraries
`
`throughout the world.
`
`24. Library of Congress Online Catalog.3 The Library of Congress online
`
`catalog contains approximately 14 million bibliographic records representing
`
`books, serials, computer files, manuscripts, cartographic materials, music, sound
`
`recordings, and visual materials. The Online Catalog also displays searching aids
`
`for users, such as cross-references and scope notes. The catalog records reside in a
`
`single integrated database; they are not separated according to type of material,
`
`language of material, date of cataloging, or processing/circulation status.
`
`
`1 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).
`2 http://www.worldcat.org/.
`3 https://catalog.loc.gov/vwebv/searchBrowse
`
`11
`
`Page 12 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`
`
`
`25. U. S. Copyright Office. Created by Congress in 1897, the Copyright
`
`Office is responsible for administering a complex and dynamic set of laws, which
`
`include registration, the recordation of title and licenses, a number of statutory
`
`licensing provisions, and other aspects of the 1976 Copyright Act and the 1998
`
`Digital Millennium Copyright Act. The public catalog in the Copyright Office
`
`includes information filed since 1978. Individuals can search by title, personal or
`
`corporate name, key word, registration number, and document number. Works
`
`filed before 1978 can be located through the Copyright Public Records Reading
`
`Room.4 A researcher can find the date on which an item was published and
`
`deposited for copyright.
`
`26.
`
`Journals. 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.). Before the use of computers in libraries,
`
`bibliographic records were prepared and maintained on Codex cards. The major
`
`
`4 https://www.copyright.gov/circs/circ23.pdf.
`
`12
`
`Page 13 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`transition from paper to machine readable records occurred from the mid-1970s
`
`
`
`through the later 1980’s through the building of large union lists of serials that
`
`were contributed to the OCLC bibliographic database.
`
`27.
`
`In the OCLC bibliographic database, the first issue of the serial
`
`publication 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.
`
`OCLC serial publication MARC records represent the entire run of the serial title.
`
`With knowledge of the first issue published, future issues can be predicted based
`
`on the information provided in the MARC record, 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 end of its publication run.
`
`If a subscription to a serial publication ends its run or is cancelled before the end of
`
`its run, the library will denote that it has stopped receiving new volumes by filling
`
`in the end date in the MARC record.
`
`28. The handling of printed journal subscriptions is shown on the cover or
`
`the first few pages 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 or labeled 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
`
`13
`
`Page 14 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`be professionally bound and retained. This process also verified that all 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 new issue was placed in the public area; the
`
`older issue was stored so that it remained available.
`
`29. 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
`
`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 placement of a stamp or label 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 all of the serial publications discussed below.
`
`D.
`30.
`
`Summary of Opinions
`I am informed by counsel that the earliest possible priority date for the
`
`patent at issue is February 26, 2008. As I will explain below, it is my opinion that
`
`the printed publications discussed in my Declaration were publicly accessible
`
`before the earliest possible priority date.
`
`14
`
`Page 15 of 230
`
`
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`IV. LIBRARY CATALOGING PRACTICES
`A. MARC Records and OCLC
`31.
`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. 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 works made available at that library.
`
`32. Since at least the early 1970s and continuing to the present day,
`
`MARC has been the primary communications protocol for the transfer and storage
`
`of bibliographic metadata in libraries.5 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
`
`
`5 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 April 26, 2021).
`
`15
`
`Page 16 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`
`
`
`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.
`
`33. Why Is a MARC Record Necessary? LIBRARY OF CONGRESS.6
`
`34. Thus, almost every major library in the world is MARC-compatible.
`
`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS.7
`
`(“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
`
`
`6 http://www.loc.gov/marc/umb/um01to06.html#part2
`7 https://www.loc.gov/marc/faq.html
`
`16
`
`Page 17 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`Z39.2-1994 standard (reaffirmed in 2016) for Information Interchange Format. The
`
`
`
`full text of the standard is available from the Library of Congress.8
`
`35. 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.9 For example, a
`
`work’s title is recorded in field 245, the primary author of the work is recorded in
`
`field 100, a work’s International Standard Book Number (“ISBN”) is recorded in
`
`field 020, a work’s International Standard Serial Number (“ISSN”) is recorded in
`
`field 022, and the publication date is recorded in field 260 under the subfield “c.” 10
`
`In some MARC records, field 264 is used rather than field 260 to record
`
`publication information.11 Information in field 264 is similar to information in field
`
`260 (Publication, Distribution, etc. (Imprint)). Field 264 is useful for cases where
`
`the content standard or institutional policies make a distinction between functions.
`
`If a work is a periodical, then its publication frequency is recorded in field 310, and
`
`
`8 http://www.loc.gov/marc/bibliographic/
`9 http://www.loc.gov/marc/umb/um07to10.html;
`http://www.loc.gov/marc/bibliographic/
`10 http://www.loc.gov/marc/bibliographic/
`11 http://www.loc.gov/marc/bibliographic/bd264.html
`
`17
`
`Page 18 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`the 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
`
`36. The library that initially created the MARC record is reflected in field
`
`040 in subfield “a” with that library’s unique library code.13 Once a MARC record
`
`for a particular work is originally created by one library, other libraries can use that
`
`original MARC record to then create their own MARC records for their own
`
`copies of the same work. These other libraries may modify or add to the original
`
`MARC record as necessary to reflect data specific to their own copies of the work.
`
`However, the library that created the original MARC record would still be
`
`reflected in these modified MARC records (corresponding to other copies of the
`
`same work at other libraries) in field 040, subfield “a”. The modifying library (or
`
`libraries) is reflected in field 040, subfield “d.”14
`
`37.
`
`I consulted the Directory of OCLC Libraries15 in order to identify the
`
`institution that created or modified the MARC record. Moreover, when viewing the
`
`MARC record online via Online Computer Library Center’s (“OCLC”)
`
`
`12 http://www.loc.gov/marc/bibliographic/bd3xx.html
`13 http://www.loc.gov/marc/umb/um07to10.html;
`http://www.loc.gov/marc/bibliographic/
`14 http://www.loc.gov/marc/bibliographic/bd040.html
`15 http://www.oclc.org/contacts/libraries.en.html
`
`18
`
`Page 19 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`bibliographic database, which I discuss further below, hovering over a library code
`
`
`
`in field 040 with the mouse reveals the full name of the library. I also used this
`
`method of “mousing over” the library codes in the OCLC database to identify the
`
`originating and modifying libraries for the MARC records discussed in this report.
`
`38. MARC records also include one or more fields that show information
`
`regarding subject matter classification. For example, 6XX fields are termed
`
`“Subject Access Fields.”16 Among these, for example, is the 650 field; this is the
`
`“Subject Added Entry – Topical Term” field.17 The 650 field is a “[s]ubject added
`
`entry in which the entry element is a topical term.” Id. 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.
`
`39. Further, MARC records can include call numbers, which themselves
`
`contain a classification number. For example, a MARC record may identify a 050
`
`field, which is the “Library of Congress Call Number.”18 A defined portion of the
`
`Library of Congress Call Number is the classification number, and “source of the
`
`
`16 http://www.loc.gov/marc/bibliographic/bd6xx.html
`17 http://www.loc.gov/marc/bibliographic/bd650.html
`18 http://www.loc.gov/marc/bibliographic/bd050.html
`
`19
`
`Page 20 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`classification number is Library of Congress Classification and the LC
`
`
`
`Classification-Additions and Changes.” Id. Thus, the 050 field may be used to
`
`show information regarding subject matter classification. Further, the 082 field is
`
`the “Dewey Decimal Call Number.”19 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.
`
`40. 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, as discussed above. For
`
`MARC records created by libraries other than the Library of Congress (e.g., a
`
`university library or a local public library), the classification number may appear in
`
`a 09X (e.g., 090) field.20
`
`41. When a MARC-compatible library acquires a work, it creates a
`
`MARC record for its copy of the work in its computer catalog system in the
`
`
`19 http://www.loc.gov/marc/bibliographic/bd082.html
`20 http://www.loc.gov/marc/bibliographic/bd09x.html
`
`20
`
`Page 21 of 230
`
`
`
`Declaration of Dr. Sylvia D. Hall-Ellis
`U.S. Patent No. 11,083,747
`
`ordinary course of its business. This MARC record (for the copy of a work
`
`
`
`available at the particular library) may be later accessed by researchers in a number
`
`of ways. For example, many libraries, including the Library of Congress, make
`
`their MARC records available through their website. As an example, the MARC
`
`record for the copy of The Unlikely Spy, by Daniel Silva,21 available at the Library
`
`of Congress can be viewed through the Library of Congress website, at
`
`https://catalog.loc.gov/vwebv/staffView?searchId=20265&recPointer=1&recCount
`
`=25&bibId=2579985 (last visited April 26, 2021). One could, of course, always
`
`physically visit the library at which the work is available, and request to see that
`
`library’s MARC record for the work. Moreover, members of the Online Computer
`
`Library Center (“OCLC”) can access the MARC records of other member
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
