UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HEWLETT PACKARD ENTERPRISE CO.,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`IPR2022-00116
`U.S. Patent 7,882,320
`____________
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`HPE, Exh. 1024, p. 1
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HEWLETT PACKARD ENTERPRISE CO.,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`IPR2022-00116
`U.S. Patent 7,882,320
`____________
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`HPE, Exh. 1024, p. 1
`
`
`
`I.
`
`INTRODUCTION
`1.
`My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
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`Hewlett Packard Enterprise Co., the Petitioner.
`
`2.
`
`I have written this declaration at the request of the Petitioner to
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`provide my expert opinion regarding the authenticity and public availability of
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`several publications. My declaration sets forth my opinions in detail and provides
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`the basis for my opinions regarding the public availability of these publications.
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`3.
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`I reserve the right to supplement or amend my opinions, and bases for
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`them, in response any additional evidence, testimony, discovery, argument, and/or
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`other additional information that may be provided to me after the date of this
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`declaration.
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`4.
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`I am being compensated for my time spent working on this matter at
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`my normal consulting rate, plus reimbursement for any additional reasonable
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`expenses. My compensation is not in any way tied to the content of this
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`declaration, the substance of my opinions, or the outcome of this litigation. I have
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`no other interests in this proceeding or with any of the parties.
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`5.
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`All of the materials that I considered are discussed explicitly in this
`
`declaration.
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`1
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`HPE, Exh. 1024, p. 2
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`
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`II. QUALIFICATIONS
`6.
`I am currently an Adjunct Professor in the School of Information at
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`San José State University. I obtained a Master of Library Science from the
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`University of North Texas in 1972 and a Ph.D. in Library Science from the
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`University of Pittsburgh in 1985. Over the last fifty years, I have held various
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`positions in the field of library and information resources. I was first employed as a
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`librarian in 1966 and have been involved in the field of library sciences since,
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`holding numerous positions.
`
`7.
`
`I am a member of the American Library Association (ALA) and its
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`Association for Library Collections & Technical Services (ALCTS) Division, and I
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`served on the Committee on Cataloging: Resource and Description (which wrote
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`the new cataloging rules) and as the chair of the Committee for Education and
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`Training of Catalogers and the Competencies and Education for a Career in
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`Cataloging Interest Group. I also served as the founding Chair of the ALCTS
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`Division’s Task Force on Competencies and Education for a Career in Cataloging.
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`Additionally, I have served as the Chair for the ALA Office of Diversity’s
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`Committee on Diversity, as a member of the REFORMA National Board of
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`Directors, and as a member of the Editorial Board for the ALCTS premier
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`cataloging journal, Library Resources and Technical Services. Currently I serve as
`
`2
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`HPE, Exh. 1024, p. 3
`
`
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`a Co-Chair for the Library Research Round Table of the American Library
`
`Association.
`
`8.
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`I have also given over one hundred presentations in the field,
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`including several on library cataloging systems and Machine-Readable Cataloging
`
`(“MARC”) standards. My current research interests include library cataloging
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`systems, metadata, and organization of electronic resources.
`
`9.
`
`I have been deposed twenty-three times: (1) Symantec Corp. vs.
`
`Finjan, Inc., Petition for Inter Partes Review of U.S. Patent No. 7,613,926,
`
`May 26, 2016, on behalf of Symantec Corp.; (2) Symantec Corp. vs.
`
`Finjan, Inc., 14-cv-299-HSG (N.D. Cal.), on behalf of Symantec Corp.,
`
`September 14, 2017; (3) one deposition for ten matters: Intellectual Ventures I
`
`LLC vs. AT&T Mobility LLC; AT&T Mobility II LLC, New Cingular Wireless
`
`Services, Inc., SBC Internet Services, Inc., Wayport, Inc., and Cricket Wireless
`
`LLC, C.A. No. 12-193 (LPS); Intellectual Ventures II LLC vs. AT&T Mobility
`
`LLC; AT&T Mobility II LLC, New Cingular Wireless Services, Inc., SBC Internet
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`Services, Inc., Wayport, Inc., and Cricket Wireless LLC, C.A. No. 13-1631 (LPS);
`
`Intellectual Ventures I LLC vs. T-Mobile USA, Inc. and T-Mobile US, Inc., C.A.
`
`No. 13-1632 (LPS); Intellectual Ventures II LLC vs. T-Mobile USA, Inc. and T-
`
`Mobile US, Inc., C.A. No. 13-1633 (LPS); Intellectual Ventures I LLC, vs. Nextel
`
`Operations, Inc., Sprint Spectrum L.P., Boost Mobile, LLC and Virgin Mobile
`
`3
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`HPE, Exh. 1024, p. 4
`
`
`
`USA, L.P., C.A. No. 13-1634 (LPS); Intellectual Ventures II LLC vs. Nextel
`
`Operations, Inc., Sprint Spectrum L.P., Boost Mobile, LLC and Virgin Mobile
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`USA, L.P., C.A. No. 13-1635 (LPS); Intellectual Ventures I LLC, vs. United States
`
`Cellular Corporation, C.A. No. 13-1636 (LPS); Intellectual Ventures I LLC vs.
`
`United States Cellular Corporation, C.A. No. 13-1637 (LPS); Intellectual Ventures
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`II LLC vs. AT&T Mobility LLC, AT&T Mobility II LLC, New Cingular Wireless
`
`Services, Inc., C.A. No. 15-799 (LPS); Intellectual Ventures I LLC vs. T-Mobile
`
`USA, Inc. and T-Mobile US, Inc., C.A. No. 15-800 (LPS), on behalf of AT&T
`
`Mobility LLC; AT&T Mobility II LLC, Boost Mobile, LLC Cricket Wireless LLC,
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`Nextel Operations, Inc., New Cingular Wireless Services, Inc., SBC Internet
`
`Services, Inc., Sprint Spectrum L.P., T-Mobile USA, Inc., T-Mobile US, Inc.,
`
`United States Cellular Corporation Virgin Mobile USA, L.P., and Wayport, Inc.,
`
`November 15, 2016; (4) Hitachi Maxell, LTD., v. Top Victory Electronics
`
`(Taiwan) Co. Ltd., et al., 2:14-cv-1121 JRG-RSP (E.D. Texas), on behalf of Top
`
`Victory Electronics (Taiwan) Co. LTD, et. al., January 20, 2016; (5) Sprint
`
`Spectrum, L.P. vs. General Access Solutions, Ltd., Petition for Inter Partes Review
`
`of U.S. Patent No. 7,173,916, on behalf of Sprint Spectrum L.P., July 13, 2018;
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`(6) Nichia Corporation vs. Vizio, Inc., 8:16-cv-00545; on behalf of Vizio, Inc.,
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`October 12, 2018; (7) Intellectual Ventures I LLC, vs. T-Mobile USA, Inc., T-
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`Mobile US, Inc., Ericsson Inc., and Telefonaktiebolaget LM Ericsson, 2:17-cv-
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`4
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`HPE, Exh. 1024, p. 5
`
`
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`00557 (JRG), on behalf of T-Mobile USA, Inc., T-Mobile US, Inc., Ericsson Inc.,
`
`and Telefonaktiebolaget LM Ericsson, October 19, 2018; (8) Pfizer, Inc. vs.
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`Biogen, Inc., Petition for Inter Partes Review of U.S. Patent No. 8,821,873, on
`
`behalf of Pfizer, November 3, 2018; (9) Finjan, Inc. vs. ESET, LLC and ESET
`
`SPOL. S.R.O., 3:17-cv-00183-CAB-BGS, on behalf of ESET, January 15, 2019;
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`(10) Finjan, Inc. vs. Cisco Systems, Inc., 5:17-cv-00072-BLF-SVK, on behalf of
`
`Cisco Systems, Inc., September 6, 2019; (11) Facebook, Inc., Instagram, LLC and
`
`Whatsapp Inc. vs. Blackberry Limited, Petition for Inter Partes Review of U.S.
`
`Patent No. 9,349,120 B2, on behalf of Facebook, Inc., Instagram, LLC and
`
`Whatsapp Inc. December 20, 2019; (12) 3Shape A/S and 3Shape Inc. v. Align
`
`Technology, Inc., Petition for Inter Partes Review of U.S. Patent No. 7,156,661,
`
`IPR 2020-00222 and IPR 2020-00223, August 10, 2020, on behalf of 3Shape A/S
`
`and 3Shape Inc.; (13) Finjan Inc. v. Rapid7, Inc. and Rapid7 LLC, Northern
`
`District of Delaware; 1:18-cv-01519-MN, September 15, 2020; (14) VLSI
`
`Technology LLC v. Intel Corporation, Western District of Texas, 6:19-cv-00254,
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`6:19-cv-00255, 6:19-cv-00256, on behalf of Intel Corporation, September 23,
`
`2020; (15) Finjan Inc. v. Sonicwall, Inc., Northern District of California, 5:17-cv-
`
`04467-BLF-HRL, on behalf of Sonicwall, Inc., October 27, 2020; (16) VLSI
`
`Technology, LLC v. Intel Corporation, District of Delaware, 1:18-cv-00966-CFC-
`
`CJB, February 5, 2021, on behalf of the Intel Corporation; (17) Unified Patents,
`
`5
`
`HPE, Exh. 1024, p. 6
`
`
`
`LLC v. Good Kaisha IP Bridge 1, Petition for Inter Partes Review of U. S. Patent
`
`7,817,868, February 11, 2021, on behalf of Unified Patents; (18) Finjan, Inc. v.
`
`Qualsys, Inc., Northern District of California, 4:18-cv-07229-YGR, March 1,
`
`2021, on behalf of Qualsys, Inc.; (19) Qualcomm, Inc. v. Monterey Research LLC,
`
`Petition for Inter Partes Review of U. S. Patent 6,534,805, May 6, 2021, on behalf
`
`of Qualcomm, Inc.; (20) Hulu, LLC v. Sound View Innovations, LLC, Petition for
`
`Inter Partes Review of U. S. Patent 5,806,062, May 14, 2021, on behalf of Hulu,
`
`LLC; (21) VLSI Technology LLC v. Intel Corporation, Western District of Texas,
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`6:19-cv-00254, 6:19-cv-00255 and 6:19-cv-00256, August 3, 2021, on behalf of
`
`Intel Corporation; (22) Liquidia Technologies, Inc. v. United Therapeutics
`
`Corporation, Petition for Inter Partes Review of U. S. Patent 10,716,793 B2,
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`October 20, 2021, on behalf of Liquidia Technologies, Inc.; and, (23) EcoFactor,
`
`Inc. v. Google, Inc., Western District of Texas, 6:20-cv-00075 (ADA), 6:20-
`
`0078-ADA, and 6:20-cv-00080 ADA, October 27, 2021, on behalf of Google,
`
`Inc.
`
`10. My full curriculum vitae is attached hereto as Attachment 1.
`
`III. PRELIMINARIES
`11.
`Scope of this declaration. 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
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`6
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`HPE, Exh. 1024, p. 7
`
`
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`these documents was disseminated or otherwise made available to the extent that
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`persons interested and ordinarily skilled in the subject matter or art, exercising
`
`reasonable diligence, could have located the documents before May 23, 2006.
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`12.
`
`I understand that a printed publication qualifies as publicly accessible
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`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
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`through the exercise of ordinary diligence.
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`13. While I understand that the determination of public accessibility under
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`the foregoing standard rests on a case-by-case analysis of the facts particular to an
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`individual publication, I also understand that a printed publication is rendered
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`“publicly accessible” if it is cataloged and indexed by a library such that a person
`
`interested in the relevant subject matter could locate it (i.e., I understand that
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`cataloging and indexing by a library is sufficient, though there are other ways that
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`a printed publication may qualify as publicly accessible). One manner of sufficient
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`indexing is indexing according to subject matter category. I understand that the
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`cataloging and indexing by a single library of a single instance of a particular
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`printed publication is sufficient, even if the single library is in a foreign country. I
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`understand that, even if access to a library is restricted, a printed publication that
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`has been cataloged and indexed therein is publicly accessible so long as a
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`presumption is raised that the portion of the public concerned with the relevant
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`7
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`HPE, Exh. 1024, p. 8
`
`
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`subject matter would know of the printed publication. I also understand that the
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`cataloging and indexing of information that would guide a person interested in the
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`relevant subject matter to the printed publication, such as the cataloging and
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`indexing of an abstract for the printed publication, is sufficient to render the
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`printed publication publicly accessible.
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`14.
`
`I understand that routine business practices, such as general library
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`cataloging and indexing practices, can be used to establish an approximate date on
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`which a printed publication became publicly accessible.
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`15.
`
`Persons of ordinary skill in the art. I understand that the subject
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`matter of this proceeding relates to memory device design.
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`16.
`
`I understand that a “person of ordinary skill in the art at the time of
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`the inventions” is a hypothetical person who is presumed to be familiar with the
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`relevant field and its literature at the time of the inventions. This hypothetical
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`person is also a person of ordinary creativity, capable of understanding the
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`scientific principles applicable to the pertinent field.
`
`17.
`
`I understand that persons of ordinary skill in this subject matter or art
`
`would have had at least a bachelor’s degree in electrical engineering or an
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`equivalent, plus three years of experience in the field of memory device design. I
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`also understand that additional educational in the field of electrical engineering
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`such as a masters or doctorate degree may serve as a substitute for experience in
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`8
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`HPE, Exh. 1024, p. 9
`
`
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`the field. I understand that a person with less education, but more relevant practical
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`experience may also meet this standard.
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`18.
`
`It is my opinion that such a person would have been engaged in
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`research, learning, study, and practice in the field, and possibly formal instruction
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`so that bibliographic resources relevant to his or her research would be familiar.
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`Before May 23, 2006, such a person would have had access to a vast array of long-
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`established print resources in electrical engineering as well as to a rich set of online
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`resources providing indexing information, abstracts, and full text services for
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`electrical engineering.
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`IV. LIBRARY PROFESSIONAL PRACTICES
`19.
`In preparing this declaration, I used authoritative databases, such as
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`the OCLC bibliographic database, the Library of Congress Online Catalog, and the
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`Library of Congress Subject Authorities, to confirm citation details of the various
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`publications discussed. Unless I note otherwise below in reference to a specific
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`serial publication, it is my expert opinion that this standard protocol was followed
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`for the serial publication discussed below.
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`20.
`
`Indexing. A researcher may discover material relevant to his or her
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`topic in a variety of ways. One common means of discovery is to search for
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`relevant information in an index of periodical and other publications. Having found
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`relevant material, the researcher will then normally obtain it online, look for it in
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`9
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`HPE, Exh. 1024, p. 10
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`
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`libraries, or purchase it from the publisher, a bookstore, a document delivery
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`service, or other provider. Sometimes, the date of a document’s public accessibility
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`will involve both indexing and library date information. However, date information
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`for indexing entries is often unavailable. This is especially true for online indices.
`
`21.
`
`Indexing services use a wide variety of controlled vocabularies to
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`provide subject access and other means of discovering the content of documents.
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`The Library of Congress Subject Authorities includes standard forms of terms and
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`cross references that are included in bibliographic records. Subject headings are
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`terms that an individual seeking a document regardless of format can enter in the
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`search bar of the online catalog. Subjects also connect an authenticated term (one
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`included in the Library of Congress subject headings list) with related, broader,
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`and narrower terms. The formats in which these access terms are presented vary
`
`from service to service.
`
`22. Online
`
`indexing
`
`services
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`commonly provide bibliographic
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`information, abstracts, and full-text copies of the indexed publications, along with
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`a list of the documents cited in the indexed publication. These services also often
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`provide lists of publications that cite a given document. A citation of a document is
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`evidence that the document was publicly available and in use by researchers no
`
`later than the publication date of the citing document. Prominent indexing services
`
`10
`
`HPE, Exh. 1024, p. 11
`
`
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`include the IEEE Xplore database, the ACM Digital Library, ResearchGate, and
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`Semantic Scholar.
`
`V.
`
`LIBRARY CATALOGING PRACTICES
`23.
`I am fully familiar with the library cataloging standard known as the
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information.1 MARC was first developed in the 1960’s
`
`by the Library of Congress. A MARC-compatible library is one that has a catalog
`
`consisting of individual MARC records for each of its items. Today, MARC is the
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`primary communications protocol for the transfer and storage of bibliographic
`
`metadata in libraries.2
`
`1 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliographic/ (last visited October 18, 2021).
`2 Almost every major library in the world is MARC-compatible. See, e.g., MARC
`Frequently Asked Questions (FAQ), Library of Congress,
`https://www.loc.gov/marc/faq.html (last visited October 18, 2021) (“MARC is the
`acronym for MAchine-Readable Cataloging. It defines a data format that emerged
`from a Library of Congress-led initiative that began nearly fifty years ago. It
`provides the mechanism by which computers exchange, use, and interpret
`bibliographic information, and its data elements make up the foundation of most
`library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994 (reaffirmed
`2016) standard for Information Interchange Format.
`
`11
`
`HPE, Exh. 1024, p. 12
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`
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`24.
`
`Since at least the early 1970s and continuing to the present day,
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`MARC has been the primary communications protocol for the transfer and storage
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`of bibliographic metadata in libraries.3 As explained by the Library of Congress:
`
`You could devise your own method of organizing the bibliographic
`information, but you would be isolating your library, limiting its
`options, and creating much more work for yourself. Using the MARC
`standard prevents duplication of work and allows libraries to better
`share bibliographic resources. Choosing to use MARC enables
`libraries to acquire cataloging data that is predictable and reliable. If a
`library were to develop a “home-grown” system that did not use
`MARC records, it would not be taking advantage of an industry-wide
`standard whose primary purpose is to foster communication of
`information.
`
`Using the MARC standard also enables libraries to make use of
`commercially available library automation systems to manage library
`operations. Many systems are available for libraries of all sizes and
`are designed to work with the MARC format. Systems are maintained
`and improved by the vendor so that libraries can benefit from the
`latest advances in computer technology. The MARC standard also
`
`3 A complete history of the development of MARC can be found in MARC: Its
`History and Implications by Henrietta D. Avram (Washington, DC: Library of
`Congress, 1975) and available online from the Hathi Trust
`(https://babel.hathitrust.org/cgi/pt?id=mdp.39015034388556;view=1up;seq=1; last
`visited October 18, 2021).
`
`12
`
`HPE, Exh. 1024, p. 13
`
`
`
`allows libraries to replace one system with another with the assurance
`that their data will still be compatible.
`
`Why Is a MARC Record Necessary? LIBRARY OF CONGRESS. 4
`
`25.
`
`Thus, almost every major library in the world is MARC-compatible.
`
`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS. 5
`
`(“MARC is the acronym for MAchine-Readable Cataloging. It defines a data
`
`format that emerged from a Library of Congress-led initiative that began nearly
`
`fifty years ago. It provides the mechanism by which computers exchange, use, and
`
`interpret bibliographic information, and its data elements make up the foundation
`
`of most library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994
`
`standard (reaffirmed in 2016) for Information Interchange Format. The full text of
`
`the standard is available from the Library of Congress.6
`
`26. A MARC record comprises several fields, each of which contains
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`specific data about the work. Each field is identified by a standardized, unique,
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`three-digit code corresponding to the type of data that follow. For example, a
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`work’s title is recorded in Field 245; the primary author of the work is transcribed
`
`in Field 100; an item’s International Standard Book Number (“ISBN”) consisting
`
`4 http://www.loc.gov/marc/umb/um01to06.html#part2
`5 https://www.loc.gov/marc/faq.html
`6 http://www.loc.gov/marc/bibliographic/
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`13
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`HPE, Exh. 1024, p. 14
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`
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`of ten or thirteen digits is transcribed in Field 020; an item’s International Standard
`
`Serial Number (“ISSN”) is transcribed in Field 022; the Library of Congress
`
`classification notation is recorded in Field 050; and the publication date is recorded
`
`in Field 260 under the subfield “c.” If a work is a periodical, then its publication
`
`frequency is recorded in Field 310, 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.7
`
`27.
`
`The library that created the record is recorded in Field 040 in subfield
`
`“a” with a unique library code. When viewing the MARC record online via Online
`
`Computer Library Center’s (“OCLC”) bibliographic database, hovering over this
`
`code with the mouse reveals the full name of the library. I used this method of
`
`“mousing over” the library codes in the OCLC database to identify the originating
`
`library for the MARC records discussed in this declaration. Where this “mouse
`
`over” option was not available, I consulted the Directory of OCLC Libraries in
`
`order to identify the institution that created the MARC record.8
`
`28. MARC records also include several fields that include subject matter
`
`classification information. An overview of MARC record fields is available
`
`7 http://www.loc.gov/marc/bibliographic/bd3xx.html
`8 https://www.oclc.org/en/contacts/libraries.html
`
`14
`
`HPE, Exh. 1024, p. 15
`
`
`
`through the Library of Congress.9 For example, 6XX fields are termed “Subject
`
`Access Fields.”10 Among these, for example, is the 650 field; this is the “Subject
`
`Added Entry – Topical Term” field.11 The 650 field is a “[s]ubject added entry in
`
`which the entry element is a topical term.” These entries “are assigned to a
`
`bibliographic record to provide access according to generally accepted thesaurus-
`
`building rules (e.g., Library of Congress Subject Headings (LCSH), Medical
`
`Subject Headings (MeSH)).” Id. Further, MARC records include call numbers,
`
`which themselves include a classification number. For example, the 050 field is the
`
`“Library of Congress Call Number.” 12 A defined portion of the Library of
`
`Congress Call (LCC) Number is the classification number, and “source of the
`
`classification number
`
`is Library of Congress Classification and the LC
`
`Classification-Additions and Changes.” Thus, included in the 050 field is a subject
`
`matter classification. Further, the 082 field is the “Dewey Decimal Call Number.”13
`
`A defined portion of the Dewey Decimal Call (DDC) Number is the classification
`
`number, and “source of the classification number is the Dewey Decimal
`
`Classification and Relative Index.” Thus, included in the 082 field is a subject
`
`9 http://www.loc.gov/marc/bibliographic/
`10 http://www.loc.gov/marc/bibliographic/bd6xx.html
`11 http://www.loc.gov/marc/bibliographic/bd650.html
`12 http://www.loc.gov/marc/bibliographic/bd050.html
`13 http://www.loc.gov/marc/bibliographic/bd082.html
`
`15
`
`HPE, Exh. 1024, p. 16
`
`
`
`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) and uses it consistently. When the Library of Congress
`
`assigns the LCC classification number, it appears as part of the 050 field. When the
`
`Library of Congress assigns the DDC classification number, it appears as part of
`
`the 082 field. If a local library assigns the classification number, it appears in a 090
`
`field. In either scenario, the MARC record includes a classification number that
`
`represents a subject matter classification.
`
`29.
`
`The OCLC was created “to establish, maintain and operate a
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`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
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`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,
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`literary and educational knowledge and information.” 14 Among other services,
`
`14 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`Library Center, Incorporated (available at
`https://www.oclc.org/content/dam/oclc/membership/articles-of-incorporation.pdf).
`
`16
`
`HPE, Exh. 1024, p. 17
`
`
`
`OCLC and its members are responsible for maintaining the WorldCat database
`
`(http://www.worldcat.org/), used by
`
`independent and
`
`institutional
`
`libraries
`
`throughout the world.
`
`30. OCLC also provides its members online access to MARC records
`
`through its OCLC bibliographic database. When an OCLC member institution
`
`acquires a work, it creates a MARC record for this work in its computer catalog
`
`system in the ordinary course of its business. MARC records created at the Library
`
`of Congress are tape-loaded into the OCLC database through a subscription to
`
`MARC Distribution Services daily or weekly. Once the MARC record is created
`
`by a cataloger at an OCLC member institution or is tape-loaded from the Library
`
`of Congress, the MARC record is then made available to any other OCLC
`
`members online, and therefore made available to the public. Accordingly, once the
`
`MARC record is created by a cataloger at an OCLC member institution or is tape-
`
`loaded from the Library of Congress or another library anywhere in the world, any
`
`publication corresponding to the MARC record has been cataloged and indexed
`
`according to its subject matter such that a person interested in that subject matter
`
`could, with reasonable diligence, locate and access the publication through any
`
`library with access to the OCLC bibliographic database or through the Library of
`
`Congress.
`
`17
`
`HPE, Exh. 1024, p. 18
`
`
`
`31. When an OCLC member institution creates a new MARC record,
`
`OCLC automatically supplies the date of creation for that record. The date of
`
`creation for the MARC record appears in the fixed Field 008, characters 00
`
`through 05. The MARC record creation date reflects the date on which, or shortly
`
`after which, the item was first acquired or cataloged. Initially, Field 005 of the
`
`MARC record is automatically populated with the date the MARC record was
`
`created in year, month, day format (YYYYMMDD) (some of the newer library
`
`catalog systems also include hour, minute, second (HHMMSS)). Thereafter, the
`
`library’s computer system may automatically update the date in Field 005 every
`
`time the library updates the MARC record (e.g., to reflect that an item has been
`
`moved to a different shelving location within the library). Field 005 is visible when
`
`viewing a MARC record via an appropriate computerized interface, 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.”15 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
`
`15 Field 005 is visible when viewing a MARC record via an appropriate
`computerized interface. But when a MARC record is printed directly to hardcopy
`from the OCLC database, the “005” label is not shown. The date in the 005 field
`instead appears next to the label “Replaced.”
`
`18
`
`HPE, Exh. 1024, p. 19
`
`
`
`record has been printed to hardcopy—as is the case with the exhibits to this
`
`declaration—the date reflected next to the label “Entered” is necessarily on or after
`
`the date the library first cataloged and indexed the underlying item.
`
`32. Once one library has cataloged and indexed a publication by creating
`
`a MARC record for that publication, other libraries that receive the publication do
`
`not create additional MARC records—the other libraries instead rely on the
`
`original MARC record. They may update or revise the MARC record to ensure
`
`accuracy, but they do not replace or duplicate it. This practice does more than save
`
`libraries from duplicating labor. It also enhances the accuracy of MARC records.
`
`Further, it allows librarians around the world to know that a particular MARC
`
`record is authoritative (in contrast, a hypothetical system wherein duplicative
`
`records were created would result in confusion as to which record is authoritative).
`
`33. Catalogers can create MARC records for all types of print, online, and
`
`digital resources. The date of creation of the MARC record by a cataloger at an
`
`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
`
`19
`
`HPE, Exh. 1024, p. 20
`
`
`
`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.
`
`34. MARC records cover serial publications, including both serially-
`
`published monographs and journals. OCLC hosts MARC records for more than
`
`320 million serial publications. Serial publications are those publications that have
`
`the same collective title but are intended to be continued indefinitely with
`
`enumeration such as a volume or issue number (e.g., magazines, journals, etc.). In
`
`the OCLC bibliographic database, the first issue of the serial publication is
`
`typically cataloged (i.e., a corresponding MARC record is created), but the date is
`
`left open-ended with the use of a punctuation mark such as a dash. OCLC serial
`
`publication MARC records represent the entire run of the serial title. With
`
`knowledge of the first issue published, future issues can be predicted based on the
`
`information provided in the MARC record, for example in Field 362. In my
`
`extensive professional experience, is it highly unusual for a library to stop
`
`collecting and shelving a serial publication prior to the end of its publication run. If
`
`a subscription to a serial publication ends its run or is cancelled before the end of
`
`20
`
`HPE, Exh. 1024, p. 21
`
`
`
`its run, the library will denote that it has stopped receiving new volumes by filling
`
`in the end date in the MARC record.
`
`35.
`
`The handling of printed journal subscriptions is shown on the covers
`
`of individual issues. As was the best practice among libraries, issues arrived at a
`
`central facility and were immediately received, verified as part of a subscription,
`
`checked in, and stamped with the institution’s name and date. Determining that the
`
`issue was part of the library subscription ensured that the entire set of publications
`
`for the year had been received so that they could be professionally bound and
`
`retained. This process also verified that all of the published issues arrived so that
`
`the library staff did not have to request or claim an issue that did not arrive as
`
`expected. In large public libraries with branches and multi-campus libraries within
`
`academic institutions, the journals were sorted and delivered to the subscribing
`
`unit. The issues were frequently stamped again to acknowledge receipt. The new
`
`issue was placed in the public area; the older issue was stored so that it remained
`
`available.
`
`36.
`
`The foregoing process has been standard library practice longer than I
`
`have been working in the profession. I first learned the steps in the process in the
`
`late 1970s and later supervised it. Although the checking in process has become
`
`automated and now links electronically to holdings records for the MARC record
`
`for each serial title, the manual stamping and placing the issue in a public area has
`
`21
`
`HPE, Exh. 1024, p. 22
`
`
`
`not changed for 50 years. Unless I note otherwise below in reference to a specific
`
`serial publication, it is my expert opinion that this standard protocol was followed
`
`for each of the serial publications discussed below.
`
`VI. PUBLICATION 1: EXHIBIT 1013 (“NAM”)
`37.
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