throbber
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`United States Patent No.: 8,296,351
`Inventors: Mihal Lazaridis, Gary P.
`Mousseau, Michael S. Brown
`Formerly Application No.: 12/726,405
`Issue Date: October 23, 2012
`Filing Date: March 18, 2010
`Former Group Art Unit: 2454
`Former Examiner: Frantz Jean
`Patent Owner: BlackBerry Ltd
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Attorney Docket No.:
`022477-00001
`
`
`Petitioner: Twitter, Inc.
`
`For: SYSTEM AND METHOD FOR PUSHING INFORMATION TO
`A MOBILE DEVICE
`
`
`
`MAIL STOP PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`Post Office Box 1450
`Alexandria, Virginia 22313-1450
`
`
`
`DECLARATION OF DR. INGRID HSIEH-YEE, PH.D
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Page 1
`
`Twitter Exhibit 1004
`Twitter, Inc. v. BlackBerry Ltd.
`Page 00001
`
`

`

`
`
`I, Dr. Ingrid Hsieh-Yee, do hereby declare as follows:
`
`1.
`
`I have been retained as an independent expert witness on behalf of
`
`Twitter for Inter Partes Review (“IPR”) of U.S. Patent No. 8,296,351.
`
`2.
`
`I am being compensated for my work in this matter at my accustomed
`
`hourly rate. I am also being reimbursed for reasonable and customary
`
`expenses associated with my work and testimony in this investigation. My
`
`compensation is not contingent on the results of my study, the substance of
`
`my opinions, or the outcome of this matter.
`
`3.
`
`In reaching the conclusions described in this declaration, I have relied
`
`on the documents, conversations, and materials identified herein as well as
`
`those identified in Appendix A attached to this declaration. Each of these is
`
`a type of material that experts in my field would reasonably rely upon when
`
`forming their opinions. The references are presented at the end of this
`
`declaration. I have personal knowledge of the facts set forth herein, and I
`
`am competent to testify to the same.
`
`4. My complete qualifications and professional experience are described
`
`in my curriculum vitae, a copy of which is provided as Appendix B. The
`
`following is a brief summary of my relevant qualifications and professional
`
`
`
`Page 2
`
`Page 00002
`
`

`

`experience.
`
`5.
`
`I am currently a Professor in the Department of Library and
`
`Information Science at the Catholic University of America. I have
`
`experience working in an academic library, a medical library, and a
`
`legislative library and have been a professor for more than 28 years. I hold a
`
`Ph.D. in Library and Information Studies from the University of Wisconsin-
`
`Madison and a Masters in Library and Information Studies from the
`
`university of Wisconsin-Madison. I am an authority on library cataloging
`
`and classification and have published two books on this subject, Organizing
`
`Audiovisual and Electronic Resources for Access: A Cataloging Guide
`
`(2000, 2006). I teach a variety of courses, including Organization of
`
`Information, Cataloging and Classification, Internet Searches and Web
`
`Design, Advanced Cataloging and Classification, Organization of Internet
`
`Resources, Advanced Information Retrieval and Analysis Strategies, Digital
`
`Content Creation and Management, Information Literacy Instruction, and
`
`The Information Professions in Society. My research interests cover
`
`cataloging and classification, information organization, metadata,
`
`information retrieval, information architecture, digital collections, scholarly
`
`communication, user interaction with information systems, and others.
`
`
`
`Page 3
`
`Page 00003
`
`

`

`6.
`
`I am fully familiar with a library cataloging standard known as the
`
`“Machine-Readable Cataloging” standard, also known as “MARC,” which
`
`became the national standard for sharing bibliographic data in the United
`
`States by 1971 and the international standard by 1973. MARC is the
`
`primary communications protocol for the transfer and storage of
`
`bibliographic metadata in libraries. Experts in my field would reasonably
`
`rely upon MARC records when forming their opinions.
`
`7.
`
`A MARC record comprises of 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 follows.
`
`Appendix C is a true and correct copy of Parts 7 to 10 of “Understanding
`
`MARC Bibliographic: Machine-Readable Cataloging”
`
`(http://www.loc.gov/marc/umb/) from the Library of Congress that explains
`
`commonly used MARC fields. For example, the personal author of the work
`
`is recorded in Field 100, the title is recorded in Field 245, edition
`
`information is recorded in Field 250, publisher information is recorded in
`
`Field 260, the physical volume and characteristics of a publication are
`
`recorded in Field 300, and topical subjects are recorded in the 650 fields.
`
`Field 008 includes several data elements that encode basic metadata such as
`
`language, year of publication, and date of record creation.
`
`
`
`Page 4
`
`Page 00004
`
`

`

`8.
`
`The Online Computer Library Center (OCLC) is the largest
`
`bibliographic network of the world, with more than 449 million records and
`
`thousands of libraries from more than 100 countries. According to the
`
`“Third Article, Amended Articles of Incorporation of OCLC Online
`
`Computer Library Center, Inc.,” 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.” The Third Article, Amended
`
`Articles of Incorporation of OCLC Online Computer Library Center, Inc.
`
`was last revised on November 30, 2016 and is available at
`
`https://www.oclc.org/content/dam/oclc/membership/articles-of-
`
`incorporation.pdf.
`
`9. When an Online Computer Library Center (OCLC) participating
`
`institution acquires a work, it creates a MARC record for this work in
`
`OCLC’s Connexion system, the bibliographic system used by catalogers to
`
`
`
`Page 5
`
`Page 00005
`
`

`

`create MARC records, and Connexion automatically supplies the date of
`
`record creation. Once the MARC record is created by a cataloger at an
`
`OCLC participating member institution, it becomes available to other OCLC
`
`members in Connexion for copy cataloging and collection management
`
`purposes. The record also becomes searchable and viewable on WorldCat, a
`
`Web search portal to more than 10,000 libraries worldwide. The record in
`
`WorldCat, however, is not presented in MARC fields. Instead, the data
`
`elements are labeled to help users interpret the record.
`
`10. Libraries create MARC records for works they acquire, including
`
`books, serials, motion pictures, and publications in other formats. A new
`
`standard for descriptive cataloging, RDA: Resource Description and Access,
`
`has been adopted by Library of Congress and many libraries since 2013.
`
`This standard provides guidance on how to provide metadata to represent the
`
`contents of information resources held in libraries and information systems.
`
`RDA cover all types of content and media. The cataloging of books is a
`
`fairly common cataloging activity in libraries, and the process involves
`
`descriptive cataloging, subject cataloging and encoding data elements in
`
`MARC. The customary library practice is to make the physical volume of a
`
`newly cataloged book available to the public soon after the cataloging work
`
`is completed. Because the processing of a new book for user access usually
`
`
`
`Page 6
`
`Page 00006
`
`

`

`does not take more than a day, most libraries are able to have the newly
`
`cataloged book available for users within a week after the cataloging record
`
`is completed.
`
`11. The cataloging of serials and the serial check-in process are discussed
`
`here to show how libraries usually provide access to newly received serial
`
`issues. According to the glossary of the RDA cataloging standard, a serial is
`
`“a mode of issuance of a manifestation issued in successive parts, usually
`
`bearing numbering, that has no predetermined conclusion. A serial includes
`
`a periodical, monographic series, newspaper, etc.” Because the publisher of
`
`a serial makes new issues of the serial available successively, a customary
`
`cataloging practice is to create one bibliographic record for the entire serial,
`
`and the MARC serial record typically provides information on the beginning
`
`date and publication frequency of the serial, not the dates of individual
`
`issues. In other words, libraries typically do not create MARC records for
`
`individual issues of a serial. Instead, they rely on a serial check-in system to
`
`track the receipt of new issues. A common check-in practice is to date
`
`stamp a new issue when it arrives. This practice has become automated
`
`since the late 1990s, and libraries now vary in how they share the receipt
`
`date of a new serial issue with the public. Some libraries use a date stamp,
`
`some affix a label to indicate the receipt date, some pencil in the receipt
`
`
`
`Page 7
`
`Page 00007
`
`

`

`date, and some do not provide the receipt date information to the public.
`
`12. The serial check-in process usually takes less than an hour, and one of
`
`the steps involves placing a date stamp on the new issue to document the
`
`date the issue is checked in. The receipt date is also referred to as accession
`
`date. After that date, the holdings information of the serial is updated in the
`
`library’s catalog so that users know which issues are available for request or
`
`access. After serial check-in is completed, the new issue is placed on the
`
`shelf with the previous issues of the serial. Libraries with a public periodical
`
`room typically place new issues in the periodical room for easy user access.
`
`Because information presented in serials often reflects latest discovery, a
`
`general practice of libraries is to make new issues of serials available for
`
`user access soon after they are checked in, usually within a week.
`
`13.
`
`I am familiar with search engines, databases, library catalogs, and
`
`other information systems. I prepared for this declaration by referencing
`
`authoritative information systems such as WorldCat (http://worldcat.org),
`
`the online catalogs at National Diet Library in Tokyo, Japan
`
`(https://iss.ndl.go.jp), the Technische Infomationsbibliothek (TIB) in
`
`Hannover, Germany
`
`(http://opac.tib.eu/DB=1/LNG=EN/CLK?IKT=12&TRM=312424582), the
`
`
`
`Page 8
`
`Page 00008
`
`

`

`University of California Berkeley Library in Berkeley, California
`
`(http://oskicat.berkeley.edu), and the Internet Archive
`
`(https://web.archive.org) to locate records and confirm citation details of the
`
`references identified in this declaration. I have considered Exhibits 1011
`
`and 1012, which contain certificates from the National Diet Library of
`
`Tokyo, Japan; and Exhibit 1027, which contains Accession Certificates
`
`from the Technische Informationsbibliothek (TIB) of Hannover, Germany.
`
`Experts in the field would reasonably rely on the data described herein to
`
`establish a date when a reference became available to the public in the
`
`libraries.
`
`14.
`
`I searched for records for NTT DoCoMo Technical Journal in
`
`WorldCat by the journal title and the search results informed me that the
`
`National Diet Library of Japan and the Technische Informationsbibliothek
`
`(TIB) in Germany held this journal. I then searched the online catalogs of
`
`these libraries and the library records confirmed they held the journal NTT
`
`DoCoMo Technical Journal. I also obtained archived webpages of this
`
`journal for the declaration. These records are discussed below.
`
`15. The National Diet Library, the national library of Japan, is similar to
`
`the Library of Congress. I understand that the National Diet Library has
`
`
`
`Page 9
`
`Page 00009
`
`

`

`been building its collections mainly by the legal deposit of Japanese
`
`publications in accordance with the Legal Deposit System. I further
`
`understand that the Legal Deposit System mandates that copies of all new
`
`publications published in Japan must be sent to the National Diet Library in
`
`accordance with the National Diet Library Law (Law No.5, February 9,
`
`1948). I additionally understand that when a private publication has been
`
`published, the publisher must send a complete copy to the NDL within 30
`
`days to be collected and used as cultural goods.
`
`16. The Technische Informationsbibliothek (TIB) in Hannover, Germany
`
`is the German National Library of Science and Technology and is a public-
`
`law foundation of the Federal State of Lower Saxony. I understand that TIB
`
`is also an academic library of Leibniz Universität Hannover.
`
`NTT DoCoMo Technical Journal Vol. 1, No. 1 (“i-Mode 1”) and NTT
`DoCoMo Technical Journal Vol. 2, No. 3 (“i-Mode 2”)
`
`NTT DoCoMo Technical Journal Vol. 1, No. 1 (“i-Mode 1”)
`
`17. Exhibit 1011 is a certified copy of NTT DoCoMo Technical Journal
`
`Vol. 1, No. 1 (hereinafter, “Technical Journal Reference 1”) obtained from
`
`the National Diet Library. Exhibit 1028 is a colored copy of the same issue
`
`of NTT DoCoMo Technical Journal obtained from the National Diet
`
`
`
`Page 10
`
`Page 00010
`
`

`

`Library. I have compared Exhibits 1011 and 1028 and found them to be
`
`identical. The cover of the journal (p. 1 of Exhibit 1011) shows “NTT
`
`DoCoMo Technical Journal” as the title, identifies this issue as “Vol. 1 No.
`
`1 Oct. 1999” and shows a date stamp label of “Z54-J433 1(1) N
`
`1999.October 11.10.8” (i.e., October 8 of Heisei 11) with a barcode. “Heisei
`
`11” is the equivalent of Year 1999 and represents the eleventh year of the
`
`Heisei Era, which is the reign of Emperor Akihito. The copyright page (p.
`
`41 of Exhibit 1011) shows the issue has a “Copyright © 1999,” held by
`
`“NTT Mobile Communications Network, Inc.” It also shows that the journal
`
`“is a quarterly journal edited by NTT Mobile Communications Network,
`
`Inc. and published by The Telecommunications Association.” Pages 46 and
`
`47 of Exhibit 1011 are the original and translated certificates from the
`
`National Diet Library that certify Vol.1, No. 1 (Oct. 1999) of NTT DoCoMo
`
`technical journal (Z54-J433) was added to the collection on October 8,
`
`1999.
`
`18. Exhibit 1037 is the MARC record for NTT DoCoMo technical
`
`journal that I retrieved and obtained from the online catalog of the National
`
`Diet Library. The URL at the bottom of Exhibit 1037 is specific to each
`
`search session. Field 040 shows the MARC record was created by
`
`“JTNDL,” the organization code for the National Diet Library of Japan,
`
`
`
`Page 11
`
`Page 00011
`
`

`

`according to the MARC Code List for Organizations
`
`(http://www.loc.gov/marc/organizations/org-search.php). The first six
`
`digits of Field 008 show the record creation date was “991109” (i.e.,
`
`November 9, 1999) and the codes following these digits show
`
`“d19992012,” which means the journal was published from 1999 to 2012
`
`and no longer published in print after 2012. Field 090 shows the library’s
`
`call number for this journal is “Z54-J433.” Field 245 shows the journal title
`
`is “NTT DoCoMo technical journal” and “NTT DoCoMo” is the corporate
`
`creator. Field 260 shows Telecommunications Association of Tokyo
`
`published this journal from 1999 to 2012. Field 310 shows the publication
`
`frequency is “quarterly,” and Fields 362 shows the print version was
`
`published from 1999 to 2012 and “continued by online version.” Field 710
`
`presents “NTT DoCoMo” as another access point for this record. This
`
`MARC record shows that the print version of NTT DoCoMo Technical
`
`Journal was a long-running journal, and the MARC record makes it
`
`searchable in the online catalog of the National Diet Library after the record
`
`for this serial was created on November 9, 1999. Members of the public
`
`interested in this journal could search for it by its title and the corporate
`
`author, NTT DoCoMo.
`
`19. As discussed above, the usual library practice is to create a record for
`
`
`
`Page 12
`
`Page 00012
`
`

`

`the entire journal, instead of creating a record for each issue of a journal.
`
`After a serial record is created for a journal, individual journal issues are
`
`checked in upon arrival and promptly placed in the public periodical reading
`
`room or the stack with earlier issues to facilitate public access. When a
`
`serial record is created, the cataloger usually uses the first issue or the
`
`earliest available issue as the basis for record creation. In the case of NTT
`
`DoCoMo Technical Journal, Vol. 1, No. 1 was available and would serve as
`
`the basis for the serial record at the National Diet Library. The date stamp
`
`of October 8, 1999 on the cover of Vol. 1, No. 1 of NTT DoCoMo Technical
`
`Journal, the certificates in Exhibit 1011 that stated the issue accession date
`
`was October 8, 1999, the MARC record creation date of November 9, 1999,
`
`and my knowledge and understanding of customary library cataloging and
`
`processing practices inform my opinion that Vol. 1, No. 1 of NTT DoCoMo
`
`Technical Journal was received (accessioned) by the National Diet Library
`
`on October 8, 1999, a MARC serial record was created for the journal on
`
`November 9, 1999, and the physical issue would have become accessible to
`
`the public soon after.
`
`20. As discussed above, because journals usually publish latest research
`
`findings and development, a customary library practice is to make new
`
`journal issues available as soon as they are checked in. In most academic
`
`
`
`Page 13
`
`Page 00013
`
`

`

`libraries, the process of checking in a new journal issue will take less than a
`
`day, and the newly received issue is ready for public access usually within a
`
`week after serial check-in. This timeframe may be longer for national
`
`libraries that have heavier workload, but based on my experience, I would
`
`not expect the processing of a newly checked-in issue to take more than two
`
`or three months for it to become available for user access. Newly received
`
`serial issues are much easier to process than new books because no new
`
`MARC records are created. It is therefore my opinion that Vol. 1, No. 1 of
`
`NTT DoCoMo Technical Journal would have been available to the public at
`
`the National Diet Library no later than January 2000, two months after the
`
`MARC record was created.
`
`21. Based on a conversation that I previously had with a librarian at the
`
`National Diet Library, my understanding is that the policy of the National
`
`Diet Library is to make new publications available to the public (e.g.,
`
`searchable in the library catalog and available in the library) one to two
`
`months after they have been received. My previous conversation with the
`
`staff at the National Diet Library took place in 2015, when I spoke with Mr.
`
`Seiichi Saito, Assistant Manager in the Books & Materials Division of the
`
`National Diet Library. While this conversation was in Japanese, I was
`
`generally able to understand it as I can speak and understand some Japanese,
`
`
`
`Page 14
`
`Page 00014
`
`

`

`which I acquired from my parents speaking Japanese at home. The
`
`conversation was also translated by Ms. Migusa Teramura. During that
`
`conversation, I was informed that the general policy of the National Diet
`
`Library is to make a publication available to the public (e.g., searchable in
`
`the library catalog and available in the library) one to two months after it has
`
`been received. This conversation further supports my conclusion in
`
`paragraph 20 about the public availability of Vol. 1, No. 1 of NTT DoCoMo
`
`Technical Journal.
`
`22.
`
`I have also reviewed an email exchange with Ms. Michiko Kinoshita
`
`of the Kansai National Diet Library, which is included in Exhibit 1038. In
`
`that email exchange, Ms. Kinoshita of the National Diet Library stated that
`
`“For Vol. 1 No. 1, because it is the first issue of the journal, we create a
`
`bibliographic data,” and that “with respect to issues of magazines which the
`
`bibliographic data is newly prepared, after the proofreading of the data is
`
`completed, the magazines are sent to the storeroom to be shelved the
`
`following business day.” She also added that “[The magazines] will become
`
`accessible to the public a few days after they are sent to the storeroom.”
`
`These statements confirm the serial cataloging practice I described earlier,
`
`and further clarify that after the serial cataloging record is completed, the
`
`standard practice at the National Diet Library is to send the first issue “to the
`
`
`
`Page 15
`
`Page 00015
`
`

`

`storeroom to be shelved the following business day” and the new issues
`
`“will become accessible to the public a few days after they are sent to the
`
`storeroom.” The MARC record for NTT DoCoMo Technical Journal
`
`(Exhibit 1037) shows the serial record was completed on November 9,
`
`1999, so, according to the timeframe provided by Ms. Kinoshita, the first
`
`issue would have been sent to the storeroom for shelving on November 10,
`
`1999 and become accessible to the public a few days after. My conservative
`
`estimate is that Vol. 1 No. 1 of NTT DoCoMo Technical Journal would have
`
`become accessible to the public by January 2000 at the latest.
`
`23. Exhibit 1035 is a bibliographic record for NTT DoCoMo Technical
`
`Journal that I located and obtained from the online catalog of the
`
`Technische Informationsbibliothek (TIB). The record shows that TIB holds
`
`NTT DoCoMo Technical Journal, with a number starting with “1.1999,”
`
`which indicates that the first issue was published in 1999.
`
`24. Exhibit 1027 contains a certified translation of an accession
`
`certificate from the Technische Informationsbibliothek (TIB) for the NTT
`
`DoCoMo Technical Journal Vol. 1 No. 1. The certificate states that the
`
`“day of accession” is December 14, 1999. The certificate also states that
`
`“[a]s of the day of accession, this means in principle that the public, and
`
`
`
`Page 16
`
`Page 00016
`
`

`

`especially the world of specialists, will have access to [this] Literature
`
`reference.” Experts in the field would reasonably understand a library’s
`
`“day of accession” to be the date when the library received the material for
`
`its collection.
`
`25. Exhibit 1014 includes an archived web page of NTT DoCoMo
`
`Technical Journal Vol. 1, No. 1 that I located and obtained from the Internet
`
`Archive. The URL of Exhibit 1014 is
`
`https://web.archive.org/web/20010417071250/http:/www.nttdocomo.co.jp/c
`
`orporate/rd/journal_e/v1n1_e.html. As stated in the affidavit of Christopher
`
`Butler (p. 1 of Exhibit 1014), the URL convention of the Internet Archive is
`
`to begin with the Archive’s URL, followed by the date a webpage was
`
`archived, and the URL of the original webpage. Page 3 of Exhibit 1014 is
`
`the archived webpage of Vol. 1 No. 1 Oct 1999 issue of NTT DoCoMo
`
`Technical Journal, and the URL at the bottom of the page shows that this
`
`issue’s webpage was archived by the Internet Archive on
`
`“20010417071250” (i.e., April 17, 2001, 7 a.m., 12 minutes and 50
`
`seconds). Page 4 of Exhibit 1014 shows the webpage for Vol. 2, No. 4 of
`
`the journal, including a statement that “single copies of this journal may be
`
`purchased by contacting: Japan Publications Trading Co., Ltd.” This page
`
`was archived by the Internet Archive on “20010413174152” (i.e., April 13,
`
`
`
`Page 17
`
`Page 00017
`
`

`

`2001, 5 p.m., 41 minutes and 52 seconds). These two archived webpages
`
`presented in Exhibit 1014 inform my opinion that Vol. 1, No. 1 of NTT
`
`DoCoMo Technical Journal was publicly available for purchase on the
`
`website no later than April 2001.
`
`26. Based on the information above, it is my opinion that Vol. 1 No. 1 of
`
`NTT DoCoMo Technical Journal was accessible to the public (e.g.,
`
`searchable in the library catalog and available in the library) in December
`
`1999 at TIB. At the National Diet Library this issue would have been
`
`available to the public by January 2000, about two months after the serial
`
`record for NTT DoCoMo Technical Journal was completed. The archived
`
`webpage of Vol. 1 No. 1 of NTT DoCoMo Technical Journal from the
`
`Internet Archive informs me that this issue would have been available for
`
`purchase on the website by April 2001 at the latest.
`
`NTT DoCoMo Technical Journal Vol. 2 No. 3
`
`27. Exhibit 1012 is a certified copy of NTT DoCoMo Technical Journal
`
`Vol. 2 No. 3 (hereinafter, “Technical Journal Reference 2”). Exhibit 1029
`
`is a colored copy of the same issue of NTT DoCoMo Technical Journal
`
`obtained from the National Diet Library. I have compared Exhibits 1012
`
`and 1029 and found them to be identical. The cover of Technical Journal
`
`
`
`Page 18
`
`Page 00018
`
`

`

`Reference 2 shows that it is “Vol. 2 No. 3 Dec. 2000.” The cover also
`
`shows a label of “Z54-J433 2(3) 2000.12” with a barcode and a date stamp
`
`of “12.12.04” (i.e., December 4, Heisei 12, the equivalent of Year 2000). P.
`
`8 of Exhibit 1012 is the copyright page that shows this issue carries a
`
`“Copyright © 2000”, held by “NTT DoCoMo, Inc.” As discussed above, a
`
`customary library practice is to have only one record for the entire journal
`
`and create no separate records for individual issues of a journal. After a new
`
`issue is checked in, it becomes accessible to the public soon after. It is
`
`therefore my opinion that, because a serial record for NTT DoCoMo
`
`Technical Journal was already created in November 1999, Vol. 2, no. 3
`
`(Dec. 2000) of NTT DoCoMo Technical Journal was checked in on
`
`December 4, 2000 and would have become available to the public soon
`
`thereafter.
`
`28. Exhibit 1015 is an archived webpage for Vol. 2, No. 3 (Dec. 2000) of
`
`NTT DoCoMo Technical Journal that shows the issue has a copyright date
`
`of “2001.” The URL shows that this webpage was archived on
`
`“20010627100820” (i.e., June 27, 2001, 10 a.m., 8 minutes and 20 seconds).
`
`Exhibit 1015 shows that Vol. 2, No. 3 of this journal was publicly available
`
`for purchase on the website by June 2001 at the latest.
`
`
`
`Page 19
`
`Page 00019
`
`

`

`29.
`
`I have also reviewed an email exchange with Ms. Michiko Kinoshita
`
`of the Kansai National Diet Library, which is included in Exhibit 1038. In
`
`that email exchange, Ms. Kinoshita of the National Diet Library stated with
`
`respect to the NTT DoCoMo Technical Journal that “with respect to issues
`
`of magazines with existing bibliographic data, the magazines are sent to be
`
`shelved the following business day after its accession (= accession date).”
`
`She added that “[The magazines] will become accessible to the public a few
`
`days after they are sent to the storeroom.” These statements further support
`
`my description of the serial check-in practice and clarify that the practice of
`
`the National Diet Library for processing newly received journal issues is to
`
`send them “to be shelved the following business day after its accession
`
`date.” This email exchange and statement by Ms. Kinoshita further support
`
`my opinion that newly received journal issues would have been processed
`
`for public access soon after they were received. In the case of Vol. 2, No. 3,
`
`after it was received on December 4, 2000 (according to the date stamp and
`
`the certified statement of the National Diet Library in Exhibit 1012), it
`
`would have become accessible to the public shortly thereafter, according to
`
`Ms. Kinoshita (Exhibit 1038). It is therefore my conclusion that Vol. 2, No.
`
`3 of NTT DoCoMo Technical Journal would have been available to the
`
`public as early as December 2000 and, at the latest, January 2001. The
`
`
`
`Page 20
`
`Page 00020
`
`

`

`archived webpage of this issue (Exhibit 1015) informs my opinion that this
`
`issue would have been available to the public for purchase on the website by
`
`June 2001 at the latest.
`
`30. Exhibit 1035 is the bibliographic record for NTT DoCoMo Technical
`
`Journal that shows the Technische Informationsbibliothek (TIB) holds this
`
`journal. Exhibit 1027 contains a certified translation of an accession
`
`certificate from the Technische Informationsbibliothek for the NTT DoCoMo
`
`Technical Journal Vol. 2 No. 3. The certificate states that the “day of
`
`accession” is January 26, 2001. The certificate also states that “[a]s of the
`
`day of accession, this means in principle that the public, and especially the
`
`world of specialists, will have access to the above Literature Reference.”
`
`Experts in the field would reasonably understand a library’s day of accession
`
`to be the date when the library received the material for this collection. The
`
`TIB certificate (Exhibit 1027) shows that Vol 2., No. 3 of NTT DoCoMo
`
`Technical Journal was received by the TIB by January 26, 2001.
`
`31. Based on the information above, it is my opinion that the Vol. 2, No. 3
`
`of NTT DoCoMo Technical Journal was accessible to the public (e.g.,
`
`searchable in the library catalog and available in the library) at the National
`
`Diet Library by January 2001 and at the TIB by April 2001, which would be
`
`
`
`Page 21
`
`Page 00021
`
`

`

`three months after the issue was received by the TIB. The archived webpage
`
`of Vol. 2 No. 3 from the Internet Archive informs me that this issue would
`
`have been available for purchase on the website by June 2001 at the latest.
`
`i-Mode Strategy
`
`32.
`
`I searched for records for i(cid:6)(cid:9)(cid:5)(cid:8)(cid:2)(cid:4)(cid:7)(cid:3)(cid:1)(cid:9) in Worldcat by
`
`the Japanese title and the search results informed me that the University of
`
`California Berkeley Library and the National Diet Library of Japan held this
`
`title. I then searched the online catalogs of these two libraries and the search
`
`results confirmed the holdings information. The library records are
`
`discussed below.
`
`33. Exhibit 1010 is a certified translation of a certified excerpt of i(cid:6)(cid:9)(cid:5)
`
`(cid:8)(cid:2)(cid:4)(cid:7)(cid:3)(cid:1)(cid:9) (translated English title “i-Mode Strategy”) (hereinafter,
`
`the “i-mode Reference”). I understand this translation was made from a
`
`copy of i(cid:6)(cid:9)(cid:5)(cid:8)(cid:2)(cid:4)(cid:7)(cid:3)(cid:1)(cid:9) (i-Mode Strategy) obtained from the
`
`University of California Berkeley Library. The copyright page shows “2001
`(cid:5) 1(cid:7)18(cid:6) 1(cid:8)3(cid:2)“ (i.e., 1st Edition, 3rd print, January 18, 2001).
`
`34. The University of California Berkeley Library (UCBL) is the library
`
`system for the University of California, Berkeley. I understand that the
`
`
`
`Page 22
`
`Page 00022
`
`

`

`University of California Berkeley Library collections are available both to
`
`the university population (e.g., students and professors) and to the general
`
`public.
`
`35. Exhibit 1033 is the MARC record for i(cid:6)(cid:9)(cid:5)(cid:8)(cid:2)(cid:4)(cid:7)(cid:3)(cid:1)(cid:9) (“i-
`
`Mode Strategy”) that I located and obtained from the online catalog of the
`
`University of California Berkeley Library. The first six digits of Field 008
`
`show that the record was created on “010119” (i.e., January 19, 2001). This
`
`date is confirmed by the “Addate” element in Field 009 that shows “010119”
`
`(i.e., January 19, 2001) was the date when this title was added to the library
`
`collection. The fact that the copyright page of Exhibit 1010 shows “January
`
`18, 2001” as the third printing date may seem improbable because the
`
`University of California Berkeley Library created the MARC record the next
`
`day, on January 19, 2001. This could be for example because the “January
`
`18, 2001” printing date may not be the actual printing date, because
`
`publishers sometimes use a date later than the actual production to make a
`
`new publication appear more current. This is a common practice for
`
`journals and books. Field 040 shows that “CUY” is the creator of this
`
`MARC record. According to the Directory of OCLC Members
`
`(https://www.oclc.org/en/contacts/libraries.html), “CUY” is the library code
`
`
`
`Page 23
`
`Page 00023
`
`

`

`for the University of California Berkeley Library. Field 100 shows the
`
`author of this book is “Natsuno, Takeshi,” Field 245 shows the title in
`
`Japanese with an English title, i-mode strategy, recorded after the “=” sign
`
`as the parallel title. Field 246 shows the University of California Berkeley
`
`Library makes the English title searchable. Field 250 shows the edition
`
`state

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

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.

throbber

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.

Become a Member

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

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket