UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VMware, Inc. and Dell Technologies Inc.
`Co-Petitioners
`
`v.
`
`Proven Networks, LLC
`Patent Owner
`
`Patent No. 8,812,454
`
`IPR Case No.: IPR2021-00529
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`VMWARE 1012
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VMware, Inc. and Dell Technologies Inc.
`Co-Petitioners
`
`v.
`
`Proven Networks, LLC
`Patent Owner
`
`Patent No. 8,812,454
`
`IPR Case No.: IPR2021-00529
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`VMWARE 1012
`
`
`
`I.
`
`INTRODUCTION
`1.
`My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`VMware, Inc. and Dell Technologies, Inc. (referred to herein as “Petitioner”).
`
`2.
`
`I have written this declaration at the request of Petitioners to provide
`
`my expert opinion regarding the authenticity and public availability of several
`
`publications. My report sets forth my opinions in detail and provides the bases for
`
`my opinions regarding the public availability of these publications.
`
`3.
`
`I reserve the right to supplement or amend my opinions, and bases for
`
`them, in response any additional evidence, testimony, discovery, argument, and/or
`
`other additional information that may be provided to or obtained by me after the
`
`date of this declaration.
`
`4.
`
`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
`
`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 availability date.
`
`I reserve the right to supplement my declaration when the libraries reopen to
`
`provide such information as necessary.
`
`1
`
`
`
`5.
`
`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
`
`Declaration, the substance of my opinions, or the outcome of this dispute. I have
`
`no other interests in this proceeding or with any of the parties.
`
`6.
`
`All of the materials that I considered are discussed explicitly in this
`
`Declaration.
`
`II. QUALIFICATIONS
`7.
`I am currently an Adjunct Professor in the School of Information at
`
`San José State University. I obtained a Master of Library Science from the
`
`University of North Texas in 1972 and a Ph.D. in Library Science from the
`
`University of Pittsburgh in 1985. Over the last forty-five 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.
`
`8.
`
`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 founding chair of the Committee for
`
`
`
`2
`
`
`
`Education and Training of Catalogers and the Competencies and Education for a
`
`Career in Cataloging Interest Group. I also served as the Founding Chair of the
`
`ALCTS Division’s Task Force on Competencies and Education for a Career in
`
`Cataloging. Additionally, I 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.
`
`9.
`
`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.
`
`10.
`
`I have been deposed seventeen times.
`
`11. My full curriculum vitae is attached hereto as Attachment A.
`
`III. PRELIMINARIES
`A.
`Scope of This Declaration
`12.
`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
`3
`
`
`
`
`
`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.
`
`13.
`
`I am informed by counsel that an item is considered authentic if there
`
`is sufficient evidence to support a finding that the item is what it is claimed to be. I
`
`am also informed that authenticity can be established based on the contents of the
`
`documents themselves, such as the appearance, contents, substance, internal
`
`patterns, or other distinctive characteristics of the item, taken together with all of
`
`the circumstances. I am further informed that an item is considered authentic if it
`
`is at least 20 years old, in a condition that creates no suspicion of its authenticity,
`
`and in a place where, if authentic, it would likely be. Lastly, I have been informed
`
`that a document’s authenticity can be established by comparison with an authentic
`
`specimen.
`
`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
`
`
`
`4
`
`
`
`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. That is, I understand that
`
`cataloging and indexing by a library is sufficient, although there are other ways
`
`that a printed publication may qualify as publicly-accessible. One manner of
`
`sufficient indexing is indexing according to subject matter category. I understand
`
`that the 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. I also understand that a printed
`
`publication may be “publicly accessible” if presented at a public conference,
`
`seminar, or trade show.
`
`
`
`5
`
`
`
`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 relates
`
`generally to computer memory systems and storage management.
`
`18.
`
`I have been informed by counsel that a “person of ordinary skill in the
`
`art at the time of the inventions” 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 persons of ordinary skill in this subject
`
`matter or art would have had at least the equivalent of a Bachelor’s degree in
`
`Computer Science or Computer Engineering, which would include exposure to
`
`theoretical elements such as online algorithms, and four or more years of
`
`experience in computer memory systems and storage management. Less work
`
`
`
`6
`
`
`
`experience may be compensated by a higher level of education, such as a Master’s
`
`Degree, and vice versa.
`
`20.
`
`It is my opinion that such a person would have been engaged in
`
`research, learning through study, and practice in the field and possibly through
`
`formal instruction the bibliographic resources relevant to his or her research. By
`
`not later than the mid-1980s such a person would have had access to a vast array of
`
`long-established print resources in the field, as well as to a rich set of online
`
`resources providing indexing information, abstracts, and full text services for
`
`publications relevant to the field of this dispute.
`
`C. Authoritative Databases
`21.
`In preparing this report, I used authoritative databases, such as the
`
`OCLC WorldCat, the Library of Congress Online Catalog, the ACM Digital
`
`Library, IEEE Xplore, ResearchGate, and Semantic Scholar, to confirm citation
`
`details of the various publications discussed.
`
`22. 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
`
`objectives as increasing availability of library resources to individual library
`
`
`
`7
`
`
`
`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.
`
`23. ACM Digital Library.3 This index is produced by the Association for
`
`Computing Machinery, the world’s largest scientific and educational computing
`
`society. The ACM Digital Library contains the full text of all ACC publications,
`
`hosted full-text publications from selected publishers, and the ACM Guide to
`
`Computing Literature—a comprehensive bibliography of computing literature
`
`beginning in the 1950s with more than one million entries. All metadata in the
`
`database are freely available on the Web, including abstracts, linked references,
`
`citing work, and usage statistics. Full-text articles are available with subscription.
`
`
`
`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://dl.acm.org/
`
`
`
`8
`
`
`
`24.
`
`IEEE Xplore. 4 Librarians in academic, special, and large public
`
`libraries are familiar with
`
`the IEEE Xplore database. In working with
`
`undergraduate and graduate students, researchers, scientists, and the public,
`
`librarians are intimately familiar with the IEEE Xplore database and rely on its
`
`content for access to reliable, accurate publications. Established to serve as a
`
`database for the IEEE’s ebooks, standards, conference papers, technical reports,
`
`and journal articles, and related documents dating from 1988 to the present and
`
`selectively from 1913 to 1987, IEEE Xplore is a scholarly research database that
`
`includes 5.3 million documents which is known for its reputable curation and
`
`maintenance of documents and publication information. The IEEE Xplore
`
`database accurately reports dates of publications and events and accurately reports
`
`locations of events in accordance with standard practices for major industry
`
`journals. Approximately 20,000 new documents are added to IEEE Xplore each
`
`month. Abstracts are free to access, but access to full text requires a subscription
`
`or institutional login.
`
`25. ResearchGate. 5 A social networking site for scientists and
`
`researchers to share papers, ask and answer questions, and find collaborators,
`
`
`
`4 https://ieeexplore.ieee.org/Xplore/home.jsp
`5 www.researchgate.net
`
`9
`
`
`
`
`
`ReseachGate is the largest academic social network in terms of active
`
`users, although other services have more registered users, and a 2015–2016 survey
`
`suggests that almost as many academics have Google Scholar profiles. Features
`
`available to ResearchGate members include following a research interest and the
`
`work of other individual participants, a blogging feature for users to write short
`
`reviews on peer-reviewed articles, private chat rooms for sharing data, editing
`
`documents, or discussing confidential
`
`topics, and a research-focused job
`
`board. ResearchGate indexes self-published information on user profiles and
`
`suggests members to connect with others who have similar interests. Member
`
`questions are fielded to others who have identified relevant expertise on their
`
`profiles. As of 2018, ResearchGate had more than 15 million users, with its largest
`
`user-bases coming from Europe and North America. Most of ResearchGate’s users
`
`are involved in medicine, biology, engineering, computer science, agricultural
`
`sciences, and psychology.
`
`26.
`
`Semantic Scholar. 6 Developed at the Allen Institute for Artificial
`
`Intelligence and publicly released in November 2015, Semantic Scholar is
`
`designed to be an AI-backed search engine for scientific journal articles which uses
`
`a combination of machine learning, natural language processing, and machine
`
`
`
`10
`
`
`
`vision to add a layer of semantic analysis to the traditional methods of citation
`
`analysis, and to extract relevant figures, entities, and venues from papers. Semantic
`
`Scholar is designed to highlight important, influential papers, and to identify the
`
`connections between them. As of January 2018, following a 2017 project that
`
`added biomedical papers and topic summaries, the Semantic Scholar corpus
`
`included more than 40 million papers from computer science and biomedicine. In
`
`March 2018, Doug Raymond, who developed machine learning initiatives for
`
`the Amazon Alexa platform, was hired to lead the Semantic Scholar project. As of
`
`August 2019, the number of included papers had grown to more than 173
`
`million after the addition of the Microsoft Academic Graph records, already used
`
`by Lens.org.
`
`D.
`Indexing
`27. A researcher may discover material relevant to his or her topic in a
`
`variety of ways. One common means of discovery is to search for relevant
`
`information in an index of periodical and other publications. Having found
`
`relevant material, the researcher will then normally obtain it online, look for it in
`
`libraries, or purchase it from the publisher, a bookstore, a document delivery
`
`service, or other provider. Sometimes, the date of a document’s public
`
`
`
`6 www.semanticscholar.org/
`
`11
`
`
`
`
`
`accessibility will involve both indexing and library date information. However,
`
`date information for indexing entries is often unavailable. This is especially true
`
`for online indices.
`
`28.
`
`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.
`
`29. Before the widespread development of online databases to index
`
`articles in journals, magazines, conference papers, and technical reports, libraries
`
`purchased printed volumes of indices. Graduate library school education mandated
`
`that students learn about the bibliographic control of disciplines, the prominent
`
`indexing volumes, and searching strategies required to use them effectively and
`
`efficiently. Half of the courses that I studied in library school were focused on the
`
`bibliography and resources in academic disciplines.
`
`30. Librarians consulted with information seekers to verify citations,
`
`check availability in union catalogs, printed books catalogs, and the OCLC
`
`database, and make formal requests for materials, e.g., books, conference
`
`proceedings, journal articles. Requests were transmitted using Telex machines,
`
`rudimentary email systems, and the United States Postal Service. During my
`
`
`
`12
`
`
`
`career, I have performed and supervised staff who handled these resource sharing
`
`tasks.
`
`IV. LIBRARY CATALOGING PRACTICES
`A. Machine-Readable Cataloging (MARC) Standard
`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.7 MARC was first developed in the 1960s
`
`by the Library of Congress. A MARC-compatible library is one that has a catalog
`
`consisting of individual MARC records for each of its items. Today, MARC is the
`
`primary communications protocol for the transfer and storage of bibliographic
`
`metadata in libraries.8
`
`
`
`7 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliographic/.
`8 Almost every major library in the world is MARC-compatible. See, e.g., MARC
`(FAQ),
`Library
`of
`Congress,
`Frequently
`Asked
`Questions
`https://www.loc.gov/marc/faq.html (last visited December 7, 2020) (“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 forty years ago. It
`provides the mechanism by which computers exchange, use, and interpret
`bibliographic information, and its data elements make up the foundation of most
`library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994 (reaffirmed
`2016) standard for Information Interchange Format.
`13
`
`
`
`
`
`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.9 As explained by the Library of Congress:
`
`You could devise your own method of organizing the bibliographic
`information, but you would be isolating your library, limiting its
`options, and creating much more work for yourself. Using the MARC
`standard prevents duplication of work and allows libraries to better
`share bibliographic resources. Choosing to use MARC enables
`libraries to acquire cataloging data that is predictable and reliable. If a
`library were to develop a “home-grown” system that did not use
`MARC records, it would not be taking advantage of an industry-wide
`standard whose primary purpose is to foster communication of
`information.
`Using the MARC standard also enables libraries to make use of
`commercially available library automation systems to manage library
`operations. Many systems are available for libraries of all sizes and
`are designed to work with the MARC format. Systems are maintained
`and improved by the vendor so that libraries can benefit from the
`latest advances in computer technology. The MARC standard also
`allows libraries to replace one system with another with the assurance
`
`
`
`9 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 February 4, 2021).
`
`14
`
`
`
`
`
`that their data will still be compatible.
`
`a MARC Record Necessary? LIBRARY OF CONGRESS,
`
`Is
`
`Why
`
`http://www.loc.gov/marc/umb/um01to06.html#part2 (last visited February 4,
`
`2021).
`
`33. Thus, almost every major library in the world is MARC-compatible.
`
`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS.10
`
`(“MARC is the acronym for MAchine-Readable Cataloging. It defines a data
`
`format that emerged from a Library of Congress-led initiative that began nearly
`
`fifty years ago. It provides the mechanism by which computers exchange, use, and
`
`interpret bibliographic information, and its data elements make up the foundation
`
`of most library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994
`
`standard (reaffirmed in 2016) for Information Interchange Format. The full text of
`
`the standard is available from the Library of Congress.11
`
`34. A MARC record comprises several fields, each of which contains
`
`specific data about the work. Each field is identified by a standardized, unique,
`
`three-digit code corresponding to the type of data that follow. For example, a
`
`work’s title is recorded in field 245, the primary author or creator of the work is
`
`
`
`10 https://www.loc.gov/marc/faq.html
`11 http://www.loc.gov/marc/bibliographic/.
`15
`
`
`
`
`
`recorded in field 100, an item’s International Standard Book Number (“ISBN”) is
`
`recorded in field 020, an item’s International Standard Serial Number (“ISSN”) is
`
`recorded in field 022, an item’s Library of Congress call number is recorded in
`
`field 050, and the publication date is recorded in field 260 under the subfield “c.”
`
`Id.12 If a work is a periodical, then its publication frequency is recorded in field
`
`310, alternate publication frequency is recorded in field 321, and 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.13
`
`35. MARC records also include several fields that include subject matter
`
`classification information. An overview of MARC record fields is available
`
`through the Library of Congress website.14 For example, 6XX fields are termed
`
`“Subject Access Fields.”15 Among these, for example, is the 650 field; this is the
`
`“Subject Added Entry – Topical Term” field.16 The 650 field is a “[s]ubject added
`
`
`
`12 In some MARC records, field 264 is used rather than field 260 to record
`publication information. See http://www.loc.gov/marc/bibliographic/bd264.html
`(last visited February 4, 2021 ) (“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”).
`13 http://www.loc.gov/marc/bibliographic/bd3xx.html.
`14 http://www.loc.gov/marc/bibliographic/.
`15 http://www.loc.gov/marc/bibliographic/bd6xx.html.
`16 http://www.loc.gov/marc/bibliographic/bd650.html.
`16
`
`
`
`
`
`entry in which the entry element is a topical term.”17 These authenticated subject
`
`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)).”18
`
`36. Further, MARC records include call numbers, which themselves
`
`indicate a subject and physical location within the library collections. For
`
`example, the 050 field is the “Library of Congress Call Number.”19 A defined
`
`portion of the Library of Congress Call Number is the classification number, and
`
`“source of the classification number is Library of Congress Classification and
`
`the LC Classification-Additions and Changes.”20 Thus, included in the 050 field is
`
`a subject matter classification. Each item in a library has a single classification
`
`number. A library selects a classification scheme (e.g., the Library of Congress
`
`classification scheme just described or a similar scheme such as the Dewey
`
`Decimal classification scheme or the National Library of Medicine classification
`
`scheme) and uses it consistently. When the Library of Congress assigns the
`
`
`
`17 Id.
`18 Id.
`19 http://www.loc.gov/marc/bibliographic/bd050.html.
`
`20 Id.
`
`
`
`17
`
`
`
`classification number, it appears as part of the 050 field. If a local library assigns
`
`the classification number, it appears in a 090 field. In either scenario, the MARC
`
`record
`
`includes a classification number
`
`that represents a subject matter
`
`classification.
`
`37. 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.21
`
`38. OCLC provides its members online access to MARC records through
`
`its OCLC bibliographic database. When an OCLC member institution acquires a
`
`work, it creates a MARC record for this work in its computer catalog system in the
`
`ordinary course of its business. MARC records created at the Library of Congress
`
`were initially tape-loaded into the OCLC database through a subscription to
`
`
`
`21 http://www.loc.gov/marc/bibliographic/bd09x.html.
`
`18
`
`
`
`
`
`MARC Distribution Services daily or weekly. Once the MARC record is created
`
`by a cataloger at an OCLC member institution or is tape-loaded from the Library
`
`of Congress, the MARC record is then made available to any other OCLC
`
`members online, and therefore made available to the public. Accordingly, once the
`
`MARC record is created by a cataloger at an OCLC member institution or is tape-
`
`loaded from the Library of Congress or another library anywhere in the world, any
`
`publication corresponding to the MARC record has been cataloged and indexed
`
`according to its subject matter such that a person interested in that subject matter
`
`could, with reasonable diligence, locate and access the publication through any
`
`library with access to the OCLC bibliographic database or through the Library of
`
`Congress.
`
`39. When an OCLC member institution creates a new MARC record,
`
`OCLC automatically supplies the date of creation for that record. The date of
`
`creation for the MARC record appears in the fixed field (008), characters 00
`
`through 05. The MARC record creation date reflects the date on which, or shortly
`
`after which, the item was first acquired or cataloged. Initially, field 005 of the
`
`MARC record is automatically populated with the date the MARC record was
`
`created in year, month, day format (YYYYMMDD) (some of the newer library
`
`catalog systems also include hour, minute, second (HHMMSS)). Thereafter, the
`
`
`
`19
`
`
`
`library’s computer system may automatically update the date in field 005 every
`
`time the library updates the MARC record (e.g., to reflect that an item has been
`
`moved to a different shelving location within the library). Field 005 is visible
`
`when viewing a MARC record via an appropriate computerized interface, but
`
`when a MARC record is printed to hardcopy, no “005” label appears. The initial
`
`field 005 date (i.e., the date the MARC record was created) does appear, however,
`
`next to the label “Entered.”22 The date upon which the most recent update to field
`
`005 occurred also appears, next to the label “Replaced.” Thus, when an item’s
`
`MARC record has been printed to hardcopy—as is the case with the exhibits to this
`
`report—the date reflected next to the label “Entered” is necessarily on or after the
`
`date the library first cataloged and indexed the underlying item.
`
`40. Once one library has cataloged and indexed a publication by creating
`
`a MARC record for that publication, other libraries that receive the publication do
`
`not create additional MARC records—the other libraries instead rely on the
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`original MARC record. They may update or revise the MARC record to ensure
`
`accuracy, but they do not replace or duplicate it. This practice does more than save
`
`
`
`In this report, I sometimes refer to the “Entered” entry as field 008, characters
`22
`00-05. Field 005 is visible when viewing a MARC record via an appropriate
`computerized interface. But when a MARC record is printed directly to hardcopy
`20
`
`
`
`
`
`libraries from duplicating labor, it also enhances the accuracy of MARC records.
`
`It also allows librarians around the world to know that a particular MARC record is
`
`authoritative. In contrast, a hypothetical system wherein duplicative records were
`
`created would result in confusion as to which record is authoritative.
`
`41. The date of creation of the MARC record by a cataloger at an OCLC
`
`member institution reflects when the underlying item is accessible to the public.
`
`Upwards of two-thirds to three-quarters of book sales to libraries come from a
`
`jobber or wholesaler for online and print resources. These resellers make it their
`
`business to provide books to their customers as fast as possible, often providing
`
`turnaround times of only a single day after publication. Libraries purchase a
`
`significant portion of the balance of their books directly from publishers
`
`themselves, which provide delivery on a similarly expedited schedule. In general,
`
`libraries make these purchases throughout the year as the books are published and
`
`shelve the books as soon thereafter as possible in order to make the books available
`
`to their patrons. Thus, books are generally available at libraries across the country
`
`within just a few days of publication.
`
`from the OCLC database, the “005” label is not shown. The date in the 005 field
`instead appears next to the label “Replaced.”
`21
`
`
`
`
`
`
`
`V.
`
`PUBLICATIONS
`A. Exhibit 1006 – “HOPT: A Myopic Version of the STOCHOPT
`Automatic File Migration Policy” by Frank Olken (“Olken”)
`42. Exhibit 1006 is a copy of a conference paper published in the
`
`Proceedings of the 1983 ACM SIGMETRICS Conference on Measurement and
`
`Modeling of Computer Systems found in the Karl F. Wendt Engineering Library at
`
`the University of Wisconsin – Madison. The conference paper titled “HOPT: A
`
`Myopic Version of the STOCHOPT Automatic File Migration Policy” Frank
`
`Olken (hereafter “Olken”) appears beginning on page 39. The 1983 ACM
`
`SIGMETRICS Conference on Measurement and Modeling of Computer Systems
`
`was held on August 29-31, 1983, in Minneapolis, Minnesota. Exhibit 1006 is a
`
`true and correct copy of the Olken conference paper (pages 39-43). I obtained this
`
`copy of the conference paper in the Karl F. Wendt Engineering Library at the
`
`University of Wisconsin – Madison. Specifically, the text of the Olken conference
`
`paper is complete; no pages are missing, and the text on each page appears to flow
`
`seamlessly from one page to the next; further, there are no visible alterations to the
`
`document. Exhibit 1006 was found within the custody of a library – a place where,
`
`if authentic, a copy of this conference proceedings volume would likely be.
`
`Exhibit 1006 is a true and correct copy in a condition that creates no suspicion
`
`about authenticity.
`
`
`
`22
`
`
`
`43. The Olken conference paper is also available in the ACM Digital
`
`Library.23
`
`44. Attached hereto as Attachment 1a is a true and correct copy of the
`
`MARC record for this conference proceedings volume from the University of
`
`Wisconsin – Madison Libraries online catalog. The library ownership is indicated
`
`by the presence of the library’s code (GZM) in the 049 field. The library continues
`
`to update this MARC record and enhanced the MARC record to meet current
`
`cataloging rules. I personally identified and retrieved the library catalog record
`
`which is Attachment 1a.
`
`45. Based on finding a print copy of Exhibit 1006 in the University of
`
`Wisconsin – Madison Libraries and MARC record in its online library catalog
`
`attached as Attachment 1a, it is my opinion that the book Proceedings of the 1983
`
`ACM SIGMETRICS Conference on Measurement and Modeling of Computer
`
`Systems was publicly available at the University of Wisconsin – Madison Libraries
`
`as of January 3, 1985, as shown in field 008 (“850103”).
`
`46. Attached hereto as Attachment 1b is a true and correct copy of t
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