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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`Twitter, Inc. and Google LLC,
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`Petitioner
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`- vs. -
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`B.E. Technology, LLC,
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`Patent Owner
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`———————
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`IPR2021-00484 (U.S. Patent 8,549,410)
`IPR2021-00485 (U.S. Patent 8,549,411)
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`DECLARATION OF DAVID H. CROCKER
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`Declaration of David H. Crocker Under 37 C.F.R. § 1.68
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`I.
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`INTRODUCTION
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`1.
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`I, David H. Crocker, make this declaration. I am over 21 and am
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`otherwise competent to make this declaration.
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`2.
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`All statements herein made of my own knowledge are true, and all
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`statements herein made based on information and belief are believed to be true.
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`Unless a specific time period is noted, all statements herein refer to the time period
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`relevant to the above-captioned proceedings.
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`3.
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`I am a principal at Brandenburg InternetWorking (“Brandenburg”),
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`which I founded in 1991, and I have participated in the development of technical
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`specifications for the Internet and its predecessor, the Advanced Research Projects
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`Agency Network (“ARPANET”), since 1972. I understand that my CV has been
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`submitted as Exhibit 1088.
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`4.
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`I have been retained as an independent expert witness by counsel for
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`Petitioner as an expert witness in the above-captioned inter partes review
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`proceedings. I am being compensated at my usual and customary rate for the time I
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`spent in connection with this IPR. My compensation is not affected by the outcome
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`of this IPR.
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`5.
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`I have been asked to provide my opinion about the publication status of
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`a Request for Comments (“RFC”) document, RFC 1635. My opinions in this
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`declaration are informed by my substantial background and expertise in the RFC
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`development and publication process, as well as the RFC documents I discuss below
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`and the other evidence I cite in this declaration. Although I am being compensated
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`for my time in preparing this declaration, the opinions herein are my own.
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`II. THE INTERNET ENGINEERING TASK FORCE (“IETF”)
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`6.
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`The principal Internet technical standards body is the Internet
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`Engineering Task Force (“IETF”). The IETF produces technical documents relating
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`to the design, use, and management of the Internet. The IETF has no formal
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`membership or membership requirements, and all participants and managers are
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`volunteers; it has a very small paid support staff.
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`7.
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`Prior to 1997, the IETF was entirely or partially supported by the U.S.
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`government. Since then, the IETF has been independently funded by participants
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`and through its association with the Internet Society, which is an international
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`membership-based non-profit organization.
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`8.
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`The IETF comprises working groups that are organized into areas by
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`subject matter. Each IETF area is overseen by an Area Director. The Area Directors,
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`together with the IETF Chair, form the Internet Engineering Steering Group
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`(“IESG”), which is responsible for the overall operation of the IETF. I was the first
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`Area Director for the area of Network Management. I served as an Area Director
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`for six years, from 1989 to 1995, variously also covering Middleware such as the
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`Domain Name System, and the IETF’s own standards process.
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`9.
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`The IETF’s Administrative Oversight Committee (“IAOC”) comprises
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`ten members and provides logistical and administrative support for the IETF. I
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`served on the IAOC for two years, from 2011 to 2013.
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`10. The IETF Nominating Committee (“NomCom”) comprises ten voting
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`members and is vested with the power to nominate members of the IESG, IAOC,
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`and two related groups, the Internet Architecture Board (“IAB”) and the IETF
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`Administrative Support Activity. I served on the NomCom for a total of five one-
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`year terms between 1995 and 2013.
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`11.
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`IETF working groups have open participation, comprising experts and
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`other individuals interested in the working group topic. Each working group has a
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`chairperson who is appointed by the relevant Area Director. I have chaired several
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`working groups, including Fax (facsimile over email) and EDI (electronic data
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`interchange).
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`III. REQUESTS FOR COMMENTS (“RFCS”)
`A. Overview and History
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`12. The IETF oversees the development and publication of standards and
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`related documents. These are published as RFCs, which are documents that describe
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`methods, procedures, protocols, specifications, and similar concepts related to the
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`Internet or Internet-connected systems. RFCs are widely considered by the Internet
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`technical community to be the official documents for the standards that govern the
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`design, use, and management of core Internet services. RFCs are maintained as part
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`of a single document series. The RFC document series was established by my
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`brother, Dr. Stephen D. Crocker, in 1969.
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`13. The RFC document series has been well-known throughout the Internet
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`technical community since 1969. Its documents have been directly retrievable by
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`anyone with access, first to the ARPANET from approximately 1974, and then to
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`the Internet. Anyone working on technical aspects of the Internet or Internet-
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`connected systems would have been aware of the RFC document series, would have
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`considered RFCs widely publicly accessible, and would have known where and how
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`to find copies of RFCs. My opinion is informed by my numerous experiences
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`evaluating, discussing, and retrieving RFCs with other members of the Internet
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`technical community around the world.
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`14. The formal process of preparing, publishing, and widely distributing
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`RFCs is a very important part of Internet culture, which works to develop standards
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`in an open and transparent process. It is also important to the adoption of these
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`standards and the stability and functionality of the Internet for developers to adhere
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`to standards and evolving best practices.
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`15.
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`I have authored more than 60 RFCs and have contributed to the
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`development of many others. I have been involved with the development of RFCs
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`since 1972. I consider myself an expert with respect to RFC development and their
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`publication process.
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`B. RFC Approval Process
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`16. RFCs are developed through several activity streams, one of which is
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`pursuant to the IETF’s activities, including its Internet Standards Process. The
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`formal Internet Standards Process has been in existence since the late 1980s,
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`although its essential characteristics date back to the Internet’s inception. The
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`Internet Standards Process was formally documented in the RFC series in March of
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`1992 as RFC 1310. Ex. 1084 (RFC 1310). It was revised in March of 1994 as RFC
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`1602 and again in October of 1996 as RFC 2026. Ex. 1085 (RFC 1602); Ex. 1086
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`(RFC 2026). The purpose of formally publishing the Internet Standards Process as
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`an RFC was to keep the Internet technical community informed as to the current
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`status of policies and procedures for work related to Internet standards.
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`17.
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`Internet Standards are typically developed through IETF working
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`groups. IETF working groups are open to all who want to participate; anyone may
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`observe and contribute to discussions. A majority of working group discussions are
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`held via a mailing list for the group, to which anyone may subscribe. Some working
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`group discussions are held in person and anyone may attend those meetings. The
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`dates and locations for in-person meetings are announced via the working group’s
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`mailing list, and more widely.
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`18.
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`In developing specifications, working groups generally seek to explore
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`competing views and select among them based on technical superiority and
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`community preference. Rather than formal voting, working group decisions are
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`made through a “rough consensus” process, where the “strongly dominant” sense of
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`the group is assessed.
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`19. Some working group documents (e.g., draft specifications) are
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`eventually published as RFCs. The process to publish a working group document
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`as an approved standard and published as an RFC is initiated when the working
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`group makes a recommendation to its cognizant Area Director. The Area Director
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`then presents the recommendation to the IESG, which circulates the document to the
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`wider IETF community, for comment and possible revision, and then decides
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`whether to publish the document as an RFC.
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`20.
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`In addition to Internet Standards published as RFCs, RFC 2026
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`describes categories of documents under the section “Non-Standards Track Maturity
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`Levels” including “Experimental”, “Informational”, and “Historic” maturity levels.
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`Ex. 1086, 14; see also Ex. 1085, 15 (describing same categories in RFC 1602). RFC
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`2026 describes “Informational” specifications as “published for the general
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`information of the Internet community” and that the designation “is intended to
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`provide for the timely publication of a very broad range of responsible informational
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`documents from many sources.” Ex. 1086, 15; see also Ex. 1085, 17 (same in RFC
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`1602).
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`C.
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`Publication and Dissemination of RFCs
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`21. The RFC Editor is the official source for RFCs and is responsible for
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`publishing RFCs. If the IESG approves a specification for publication as an RFC,
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`the RFC is transferred to the RFC Editor for editorial refinement. After any
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`necessary editorial work is completed, the RFC Editor publishes the specification
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`for distribution on the Internet. It has been the IETF’s standard practice since at
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`least the 1980s to publish RFCs as soon as possible following final approval for
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`publication.
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`22. The publication date of each RFC is typically on every page of the
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`document, and the cover page of each RFC typically lists the title of the RFC and
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`the RFC’s authors. The document might also contain a statement of
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`acknowledgements, listing significant contributors to the work.
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`23. The publication of RFCs is announced through a mailing list to which
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`anyone may subscribe. The existence of the mailing list, and the process for signing
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`up to receive mailing list announcements, has been well-known to members of the
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`Internet technical community since the late 1980s. Anyone with an interest in
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`Internet and Internet-connected technologies would have been able to locate this
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`mailing list, subscribe, and then receive announcements of new RFCs. A similar
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`mechanism existed within the earlier Internet research and development community.
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`24. Published RFCs are widely distributed without any restrictions to
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`access. All published RFCs are available publicly through an “anonymous FTP”
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`login and through the World Wide Web from a number of Internet hosts. The RFC
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`Editor also maintains its own database of RFCs that is regularly updated with new
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`RFCs.
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`25. The RFC Editor periodically publishes an “Internet Official Protocol
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`Standards” RFC, which summarizes the status of all Internet protocol and service
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`specifications. These RFCs are made publicly available pursuant to the standard
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`RFC publication process.
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`26.
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`In the 1990s, an official summary of newly-published RFCs appeared
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`in each issue of the Internet Society’s newsletter. The Internet Society’s newsletter
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`was well-known to members of the Internet technical community as a source for an
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`official summary of published RFCs.
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`D.
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`Publication and Dissemination of RFCs
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`27. Almost any published RFC can be retrieved from the RFC Editor’s
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`website: https://www.rfc-editor.org. Specific RFCs can be retrieved directly from
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`the RFC Editor’s website by entering a standard URL form that includes the host
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`name “www.rfc-editor.org” followed by the file path “/rfc/rfc[NUMBER].txt,”
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`where “[NUMBER]” is the specific RFC number to be retrieved. For example, RFC
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`1602 can be retrieved by entering the following URL: https://www.rfc-
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`editor.org/rfc/rfc1602.txt.
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`28. The RFC Editor’s site is well-known to persons in the Internet
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`networking industry. Since the late 1980s, the RFC Editor repository has been freely
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`accessible to the general public with no login, password, or membership
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`requirement, and was similarly available to the Internet technical community since
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`the early 1970s. The RFC Editor’s website today is the authoritative source page for
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`RFCs on the Internet.1
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`29. Visitors to the RFC Editor’s website can search, browse, and download
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`any RFC without restriction. The website’s search function allows visitors to search
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`by numerous fields, including RFC number, title/keyword, publication date, area,
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`and author surname. In addition to the RFC Editor, many publicly accessible sites
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`maintain informal copies of the RFC archive, for example, http://rfc-archive.org and
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`http://www.faqs.org/rfcs/.
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`1 “Below are links to RFCs, as available from ietf.org and from rfc-editor.org. Note
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`that there is a brief time period when the two sites will be out of sync. When in
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`doubt,
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`the RFC Editor
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`site
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`is
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`the
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`authoritative
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`source page.”
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`http://ietf.org/rfc.html (emphasis added)
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`30. RFC 1206, “FYI on Questions and Answers: Answers to Commonly
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`asked ‘New Internet User’ Questions”, was produced by the User Services Working
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`Group of the Internet Engineering Task Force (IETF) to document commonly asked
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`questions and answers about the Internet. Ex. 1079, 1. RFC 1206 explains that
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`RFCs are published and widely disseminated via email distribution lists:
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`RFCs are accessible online in public access files, and a short
`message is sent to a notification distribution list indicating the
`availability of the memo. Requests to be added to this distribution
`list should be sent to RFCREQUEST@NIC.DDN.MIL.
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`Ex. 1079, 5.
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`31. RFCs are assigned unique numbers that never change, which can be
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`used to index, identify, and locate a specific RFC:
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`Once a document is assigned an RFC number and published, that
`RFC is never revised or re-issued with the same number. There is
`never a question of having the most recent version of a particular
`RFC. However, a protocol (such as File Transfer Protocol (FTP))
`may be improved and re-documented many times in several
`different RFCs. It is important to verify that you have the most
`recent RFC on a particular protocol. The "IAB Official Protocol
`Standards" [2] memo is the reference for determining the correct
`RFC to refer to for the current specification of each protocol.
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`Ex. 1079, 6.
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`32. RFC 1206 provides specific instructions to new Internet users for where
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`and how to obtain RFCs over the Internet. For example, users can obtain them via
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`FTP or email from the Department of Defense:
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`RFCs can be obtained via FTP from NIC.DDN.MIL, with the
`pathname RFC:RFCnnnn.TXT or RFC:RFCnnnn.PS (where "nnnn"
`refers to the number of the RFC). Login using FTP, username
`"anonymous" and password "guest". The NIC also provides an
`automatic mail service for those sites which cannot use FTP.
`Address the request to SERVICE@NIC.DDN.MIL and in the
`subject field of the message indicate the RFC number, as in
`"Subject: RFC nnnn" (or "Subject: RFC nnnn.PS" for PostScript
`RFCs).
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`Ex. 1079, 6. DDN stands for “Defense Data Network,” which comprises the
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`MILNET and several other Department of Defense (DoD) networks. Id., 22.
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`33. As another example, users can obtain RFCs via FTP or email from the
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`National Science Foundation (NSF):
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`RFCs can also be obtained via FTP from NIS.NSF.NET. Using FTP,
`login with username "anonymous" and password "guest"; then
`connect to the RFC directory ("cd RFC"). The file name is of the
`form RFCnnnn.TXT-1 (where "nnnn" refers to the number of the
`RFC). The NIS also provides an automatic mail service for those
`sites which cannot use FTP. Address the request to NIS-
`INFO@NIS.NSF.NET and leave the subject field of the message
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`blank. The first line of the text of the message must be "SEND
`RFCnnnn.TXT-1", where nnnn is replaced by the RFC number.
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`Ex. 1079, 6.
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`34. Users can also obtain a list of RFCs, including the number, title,
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`authors, issue date, and length. Ex. 1079, 6-7. RFC 1206 provides a new Internet
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`user specific guidance on how to obtain this index of RFCs, such as via the DoD
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`website or in hardcopy:
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`The NIC maintains a file that is an index of the RFCs. It lists each
`RFC, starting with the most recent, and for each RFC provides the
`number, title, author(s), issue date, and number of hardcopy pages.
`In addition, it lists the online formats (PostScript or ASCII text) for
`each RFC and the number of bytes each such version is online on
`the NIC.DDN.MIL host. If an RFC is also an FYI, that fact is noted,
`with the corresponding FYI number. (There is a parallel FYI Index
`available). Finally, the Index notes whether or not an RFC is
`obsoleted or updated by another RFC, and gives the number of that
`RFC, or if an RFC itself obsoletes or updates another RFC, and gives
`that RFC number. The index is updated online each time an RFC is
`issued.
`This RFC Index is available online from the NIC.DDN.MIL host as
`RFC:RFC-INDEX.TXT. The FYI Index is online as FYI:FYI-
`INDEX.TXT. It is also available from the NIC in hardcopy for $10,
`as are individual RFCs. Call the NIC at 1-800-235-3155 for help in
`obtaining the file.
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`Ex. 1079, 6-7.
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`35. RFCs were frequently identified and described in print materials that
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`would have been well-known or accessible to users interested in or having
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`experience
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`in networking.
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` For example,
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`the book “TCP/IP and NFS:
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`Internetworking in a UNIX Environment” (1991) explains that an interested user can
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`obtain RFCs from the NIC (described above in RFC 1206):
`
`As you will find out in the following chapters, most protocols of the
`TCP /IP architecture are specified by a so-called RFC (Request For
`Comment). RFCs are publications for the Internet community;
`namely, those people and institutions who belong to the ARPA-
`Internet (more about. the ARPA-Internet in Chapter 2). RFCs are
`published by the IAB (Internet Activities Board). They may be
`obtained either by electronic mail from the Network Information
`Centre (NIC) at the Stanford Research Institute (SRI) or in machine-
`readable form by file transfer from a computer in the NIC. The
`precise addresses for information about RFCs are given in an
`appendix.
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`Ex. 1074, 2-3. The book then identifies detailed contact information for the RFC
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`Editor and the NIC, including email, telephone, and mailing addresses. Id., 219.
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`36. As another example, the book “PC Networking Handbook” (1996)
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`identifies multiple Internet hosts that allow interested users to obtain RFCs:
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`RFCs actually dictate how protocols behave and what functions they
`must perform. Failure to conform to these definitions, especially for
`required or recommended protocols, can cost a vendor the
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`opportunity of doing business with the United States government
`and all the other bodies and agencies that adhere to its guidelines.
`Access to the RFCs may be obtained from the Internet host
`ds.internic.net via FTP or electronic mail, or via the Word Wide
`Web
`at
`http://www.cis.ohio-
`state.edu/hypertext/information/rfc.html.
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`Ex. 1075, 176-177.
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`37. The earliest Internet Archive capture of the Ohio State website, from
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`December 1996 (Ex. 1076), includes an index that lists all RFCs in reverse numeric
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`order (Ex. 1077). The index identifies RFC 1635, along with its title, and provides
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`a hyperlink for accessing it (which points to Ex. 1078, the Internet Archive’s capture
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`of RFC 1635 from December 1996). This Ohio State listing and the ability to access
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`all of the RFCs that had been published is representative of what would have been
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`available prior to 19982 on a variety of Internet hosts.
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`38.
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`I note that this index includes RFCs published the same month as the
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`Internet Archive capture: December 1996. Ex. 1077, 2. I believe this is
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`representative of the speed at which repositories of RFCs were updated to include
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`newly published RFCs.
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`2 I have been informed that July 17, 1998 is the assumed priority date for the
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`challenged patents.
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`39. The “PC Networking Handbook” has further information that would
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`allow an interested user to access any RFC via e-mail or FTP:
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`
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`Ex. 1075, 202. Based on my experience, using email for retrieval in the manner
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`documented above was open to the public without restriction, as was retrieval via
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`Anonymous FTP.
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`E.
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`Electronic Dissemination via Email Distribution Lists
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`40. RFC 1206 also references several mailing lists, including a “list-of-
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`lists” maintained by ftp.nisc.sri.com that lists most of the major mailing lists,
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`describes their primary topics, and explains how to subscribe to them. Ex. 1079, 16.
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`The RFC Editor maintains a historical archive of the “list-of-lists,” including the
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`June 14, 1993 copy. Ex. 1080. One list described in this document is the “RFC
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`Announcements” list, which was used to distribute announcements of new Requests
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`for Comments:
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`This list is for distribution of announcements of new Requests for
`Comments. These are the publications of the Internet protocol
`development community, and include the specifications of protocol
`standards for the Internet, as well as policy statements and
`informational memos. Requests to be added or deleted should be
`sent to: RFC-REQUEST@NIC.DDN.MIL”
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`Ex. 1080, 361-62. This distribution list is representative of the type of broad email
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`dissemination a newly published RFC would receive.
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`41. Another example is the Internet Monthly Reports (IMRs). E.g., Ex.
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`1081.
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` These reports communicate
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`to
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`the Internet Research Group
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`the
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`accomplishments, milestones reached, or problems discovered by the participating
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`organizations. Ex. 1081, 1. Anyone could subscribe to the IMRs by sending an
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`email to imr_request@isi.edu. Id. The IMR distributed in May 1994 identifies 21
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`RFCs published during the month of May 1994, including RFC 1635. Ex. 1081, 6-
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`7, 21. This announcement is representative of the type of broad email dissemination
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`a newly published RFC would receive.
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`IV. PUBLICATION OF SPECIFIC RFCS
`A. RFC 1635: How to Use Anonymous FTP
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`42. Request for Comments 1635 (“RFC 1635”) is titled “How to Use
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`Anonymous FTP.” RFC 1635 was authored by Peter Deutsch, Alan Emtage, and
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`April Marine.
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`43. RFC 1635 was published in May 1994 pursuant to the process described
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`above, as indicated by the date on the top right corner of the document. See Ex.
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`1016. As explained above, this is the month and year it would have been released
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`for public distribution on the Internet.
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`44. Based on my personal and professional experience, and particularly my
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`involvement in the RFC process and as a frequent RFC author, the date on the top
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`right corner of an RFC is the publication date of that RFC. It would have been added
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`at or near the time of publication by the RFC Editor. The RFC Editor keeps these
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`dates in the course of its regularly conducted activity of publishing RFCs: once the
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`date is added it is not removed or modified. Adding this date has been a regular
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`practice of the RFC Editor as part of the publication process, since at least the early
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`1980s, as evidenced by that date being present on the face of every RFC.
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`45. RFC 1635 has been available for anonymous FTP from a number of
`
`Internet hosts since its publication date. Anyone involved with the Internet technical
`
`community since its publication in May 1994 would have known where and how to
`
`obtain a copy of RFC 1635. I am personally familiar with RFC 1635 based on my
`
`research and experience in the area of Internet systems, and I can confirm that it was
`
`widely publicly available during the 1994-1998 time period.
`
`46. Because RFC 1635 is an instructive reference for how to use
`
`anonymous FTP, it would have been widely known in the Internet community as a
`
`
`
`18
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`Twitter-Google Exhibit 1087
`
`
`
`Declaration of David H. Crocker Under 37 C.F.R. § 1.68
`
`resource to provide Internet users with guidance on how to obtain information from
`
`anonymous FTP hosts, including how to obtain RFC documents in the relevant time
`
`period. As RFC 2026 indicates, “Informational” RFCs, like RFC 1635, were
`
`intended to be published “for the general information of the Internet community”
`
`and this designation was “intended to provide for the timely publication” of
`
`informational documents. Ex. 1086, 15.
`
`47. RFC 1635 has been maintained by the RFC Editor since its publication
`
`date, in accordance with the process described above. RFC 1635 is publicly
`
`available via the following URL: https://www.rfc-editor.org/rfc/rfc1635.txt. This is
`
`where one would expect to find RFC 1635 if it was published by the RFC Editor
`
`pursuant to standard publication process described above. A PDF format, paginated
`
`document is likewise publicly available via the following URL: https://www.rfc-
`
`editor.org/rfc/pdfrfc/rfc1635.txt.pdf. I downloaded RFC 1635 from this URL and
`
`compared it to Exhibit 1016. They are the same document.
`
`48. The statement in the top corner of an RFC is widely understood to be
`
`the publication date of the RFC. Given that RFC 1635 that I have reviewed in this
`
`proceeding is a true and correct copy of the authoritative RFC, it would have been
`
`published on the date on its face.
`
`49. This date is further corroborated by numerous sources. The RFC Editor
`
`maintains document histories for each RFC. See e.g., Ex. 1082. The RFC Editor’s
`
`
`
`19
`
`Twitter-Google Exhibit 1087
`
`
`
`Declaration of David H. Crocker Under 37 C.F.R. § 1.68
`
`history for RFC 1635 states that RFC 1635 was published in May 1994. Ex. 1082.
`
`This statement matches the publication date on the document itself. See Ex. 1016.
`
`50. This date is further corroborated by the IETF’s index of RFCs, which
`
`includes, for example, a May 1994 last-modified date for the RFC 1635 text file.
`
`Ex. 1083, 305. This statement matches the publication date on the document itself.
`
`See Ex. 1016.
`
`51. This date is also corroborated by other publications. For example, the
`
`July 1994 issue of the Association for Computing Machinery (ACM) Special Interest
`
`Group on Data Communication (SIGCOMM) Computer Communication Review
`
`included a list of technical literature printed since its previous issue, which includes
`
`an entry for RFC 1635 with a statement of a May 1994 publication date. See Ex.
`
`1069. This statement matches the publication date on the RFC 1635 document itself.
`
`See Ex. 1016. Likewise, a 1995 article in the IBM Systems Journal mentions RFC
`
`1635, confirming its public availability prior to 1995. See Ex. 1070.
`
`52. Based on my personal and professional experience, including my
`
`experience with the publication of RFC documents, and my review of the documents
`
`cited in this declaration, it is my opinion that RFC 1635 was publicly available to
`
`users interested in networking and the Internet by May 1994, the month and year
`
`listed in the top right corner of the document.
`
`
`
`20
`
`Twitter-Google Exhibit 1087
`
`
`
`Declaration of David H. Crocker Under 37 C.F.R. § 1.68
`
`Vv.
`
`CONCLUSION
`
`53.
`
`[hereby declare under penalty of perjury under the laws of the United
`
`States of America that the foregoingis true and correct, andthatall statements made
`
`of my own knowledgeare true andthatall statements made on information and belief
`
`are believed to be true. I understand that willful false statements are punishable by
`
`fine or imprisonment or both. See 18 U.S.C. § 1001.
`
`Date: October 1, 2021
`
`Respectfully submitted,
`
`
`Hi
`
`David H. Crocker
`
`Zl
`
`
`
`Twitter-Google Exhibit 1087
`
`
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