UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`AMAZON.COM, INC.,
`AMAZON.COM SERVICES LLC,
`AMAZON WEB SERVICES, INC., and
`AUDIBLE, INC.,
`Petitioners,
`
`v.
`
` AUDIO POD IP, LLC,
`Patent Owner.
`__________________
`
`Case No. IPR2025-00769
`U.S. Patent No. 9,954,922
`__________________
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, Ph.D.
`
`Amazon v. Audio Pod
`US Patent 9,954,922
`Amazon EX-1097
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`AMAZON.COM, INC.,
`AMAZON.COM SERVICES LLC,
`AMAZON WEB SERVICES, INC., and
`AUDIBLE, INC.,
`Petitioners,
`
`v.
`
` AUDIO POD IP, LLC,
`Patent Owner.
`__________________
`
`Case No. IPR2025-00769
`U.S. Patent No. 9,954,922
`__________________
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, Ph.D.
`
`Amazon v. Audio Pod
`US Patent 9,954,922
`Amazon EX-1097
`
`
`
`I.
`
`INTRODUCTION
`I, Sylvia D. Hall-Ellis, hereby declare:
`
`1.
`
`I have been retained as an expert by Amazon.com, Inc., Amazon.com
`
`Services LLC, Amazon Web Services, Inc, and Audible, Inc. (referred to herein as
`
`“Petitioners”).
`
`2.
`
`I have written this declaration at the request of Petitioners to provide
`
`my expert opinion regarding the authenticity and public availability of a
`
`publication. My declaration sets forth my opinions in detail and provides the basis
`
`for my opinions regarding the public availability of this publication.
`
`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 me after the date of this
`
`declaration.
`
`4.
`
`I am being compensated for my time spent working on this matter at
`
`my normal consulting rate, 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 proceeding. I
`
`have no other interests in this proceeding or with any of the parties.
`
`5.
`
`All of the materials that I considered are discussed explicitly in this
`
`declaration.
`
`1
`
`
`
`II. QUALIFICATIONS
`I am currently an Adjunct Professor in the School of Information at
`6.
`
`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 fifty years, I have held various
`
`positions in the field of library and information resources. I was first employed as
`
`a librarian in 1966 and have been involved in the field of library sciences since,
`
`holding numerous positions.
`
`7.
`
`I am a member of the American Library Association (“ALA”) and its
`
`Association for Library Collections & Technical Services (“ALCTS”) Division,
`
`and I served on the Committee on Cataloging: Resource and Description (which
`
`wrote the new cataloging rules) and as the chair of the Committee for Education
`
`and Training of Catalogers and the Competencies and Education for a Career in
`
`Cataloging Interest Group. I also served as the Chair of the ALCTS Division’s
`
`Task Force on Competencies and Education for a Career in Cataloging.
`
`Additionally, I 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, as a Co-Chair of the Membership Committee
`
`for the Library Research Round Table (LRRT) of the American Library
`
`2
`
`
`
`Association, and as a member of the LRRT Nominating Committee. Currently I
`
`serve as a member of the CORE Margaret Mann Citation Committee.
`
`8.
`
`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.
`
`9. My full curriculum vitae is attached hereto as Attachment 2 to this
`
`declaration.
`
`III. PRELIMINARIES
`In preparing this declaration, I used authoritative databases, such as
`10.
`
`the Online Computer Library Center (OCLC) bibliographic database, the Library
`
`of Congress Online Catalog, and the Library of Congress Subject Authorities, to
`
`confirm citation details of the publication discussed below. It is my opinion that
`
`this standard cataloging and classification protocol was followed for the
`
`publication discussed below.
`
`11. Based on my experience working in research libraries, it is my
`
`opinion that members of the public would have been able to locate the material
`
`discussed herein on their own or with the assistance of a research librarian with
`
`relative ease using the tools and resources described herein.
`
`3
`
`
`
`12.
`
`I am not an attorney, nor am I an expert in the law. Therefore,
`
`counsel for Petitioners has provided me with guidance as to the applicable law in
`
`this matter. The paragraphs below express my understanding of how I must apply
`
`current legal principles to my analysis.
`
`13.
`
`I understand 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 also
`
`understand 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 further understand 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 understand that a
`
`document’s authenticity can be established by comparison with an authentic
`
`specimen.
`
`14.
`
`I understand 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 reasonable 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 may be
`
`“publicly accessible” if it is cataloged and indexed by a library such that a person
`
`interested in the relevant subject matter, exercising reasonable diligence, could
`
`locate it (i.e., I understand that cataloging and indexing by a library may show
`
`public accessibility, though there are other ways that a printed publication may
`
`qualify as publicly accessible). I understand that the cataloging and indexing by a
`
`single library, even in a foreign country, of a single instance of a particular printed
`
`publication may show public accessibility. I understand that, even if access to a
`
`library is restricted, a printed publication that has been cataloged and indexed
`
`therein may be 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, can show public accessibility.
`
`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.
`
`5
`
`
`
`IV. LIBRARY CATALOGING PRACTICES
`INDEXING
`A.
`17. 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
`
`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.
`
`18.
`
`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.
`
`19. 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
`
`6
`
`
`
`efficiently. Half of the courses that I studied in library school were focused on the
`
`bibliography and resources in academic disciplines.
`
`20. 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
`
`career, I have performed and supervised staff who handled these resource sharing
`
`tasks.
`
`21. A major firm known for the breadth of subjects and comprehensive
`
`treatment in the preparation of index volumes, the H. W. Wilson Company offered
`
`these reference resources since the firm was founded in 1898. The Reader’s Guide
`
`to Periodical Literature is one of the best-known titles available from H. W.
`
`Wilson. Each volume includes a comprehensive index for 300 of the most popular
`
`and important periodicals published in the United States and Canada. Information
`
`seekers have subject access expressed in plain language terminology, author
`
`access, and cross references to find the desired results from their searches. The
`
`family of index titles included Science & Technology Index, Business Periodicals,
`
`Applied Science & Technology Index, Humanities Index, Biological & Agricultural
`
`7
`
`
`
`Index, and Industrial Arts Index. These printed indices have been superseded by
`
`digital database offerings available to information seekers through Ebsco.
`
`22. Online
`
`indexing
`
`services
`
`commonly provide bibliographic
`
`information, abstracts, and full-text copies of the indexed publications, along with
`
`a list of the documents cited in the indexed publication. These services also often
`
`provide lists of publications that cite a given document. A citation of a document
`
`is evidence that the document was publicly available and in use no later than the
`
`publication date of the citing document.
`
`23. ResearchGate. 1 A social networking site designed for scientists and
`
`researchers to share papers, ask and answer questions, and find collaborators,
`
`ResearchGate is the largest academic social network in terms of active users. As of
`
`September 2023, ResearchGate had more than 25 million users, with its largest
`
`user-bases coming from Europe and North America.2
`
`24. 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
`
`
`1 www.researchgate.net
`2 https://en.wikipedia.org/wiki/ResearchGate
`8
`
`
`
`profiles and suggests members connect with others who have similar
`
`interests. Member questions are fielded to others who have identified relevant
`
`expertise on their profiles.
`
`25. ResearchGate restricts its user accounts to people at recognized
`
`institutions and published researchers. Most of ResearchGate's users are involved
`
`in medicine, biology, engineering, computer science, agricultural sciences, and
`
`psychology. ResearchGate publishes a citation impact measurement in the form of
`
`an “RG Score,” which is reported to be correlated with existing citation impact
`
`measures. ResearchGate does not charge fees for putting content on the site and
`
`does not require peer review.
`
`26.
`
`Semantic Scholar. 3 A project 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
`
`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.
`
`
`
`3 https://www.semanticscholar.org
`
`9
`
`
`
`27. 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.
`
`28.
`
`IEEE Xplore. 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 6.6 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
`
`10
`
`
`
`month. Abstracts are free to access, but access to full text requires a subscription
`
`or institutional login.
`
`29. The IEEE Xplore database requires peer review before publishing
`
`content. I have used IEEE publications in print and online for nearly 50 years.
`
`Currently I have access to IEEE documents as part of the resources for faculty
`
`through the King Library at San José State University. In addition to covering
`
`material from the IEEE, the IEEE Xplore also covers materials from the Institution
`
`of Engineering and Technology. The IEEE Xplore digital library provides Web
`
`access to more than 6.6-million full-text documents from some of the world's most
`
`highly cited publications. 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.
`
`B. MARC RECORDS AND THE ONLINE LIBRARY CATALOG
`I am fully familiar with the library cataloging standard known as the
`30.
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information.4 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
`
`
`
`4 The full text of the standard is available from the Library of Congress at
`http://www.loc.gov/marc/bibliographic/.
`11
`
`
`
`primary communications protocol for the transfer and storage of bibliographic
`
`metadata in libraries.5
`
`31. MARC is a framework into which descriptive bibliographic data are
`
`transcribed to interact with the software in online library catalogs to provide access
`
`to books, journals, and other resources in the collection. The bibliographic data
`
`provide points of access and can be searched by a person of ordinary skill in the art
`
`(“POSITA”) to identify and obtain resources in the library collection. An
`
`information seeker (or POSITA) can search a local online library catalog or the
`
`holdings of a group of libraries in a state or region or in the global catalog
`
`WorldCat.
`
`32. MARC records are not designed for public viewing. Although a
`
`significant number of libraries provide access to the MARC version of a
`
`bibliographic record, the public display is designed to show information in a
`
`
`5 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 February 17, 2025) (“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.
`12
`
`
`
`succinct manner that is quickly understood and useful to the information seeker.
`
`Libraries determine the default search for the online catalog to make the entry of
`
`search terms efficient and result in a successful search. Information seekers can
`
`enter a keyword, title, author, or standard number for the item. Libraries may also
`
`provide a search capability called “Summon” that allows the information seeker to
`
`enter known information about the item to conduct a search.
`
`33. 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.6 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
`
`
`
`6 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 17, 2025).
`
`13
`
`
`
`is
`
`to
`
`foster
`
`industry-wide standard whose primary purpose
`communication of information.
`Using the MARC standard also enables libraries to make use of
`commercially available library automation systems to manage library
`operations. Many systems are available for libraries of all sizes and
`are designed to work with the MARC format. Systems are maintained
`and improved by the vendor so that libraries can benefit from the
`latest advances in computer technology. The MARC standard also
`allows libraries to replace one system with another with the assurance
`that their data will still be compatible.
`
`a MARC Record Necessary? LIBRARY
`
`Why
`
`Is
`
`OF CONGRESS,
`
`http://www.loc.gov/marc/umb/um01to06.html#part2 (last visited February 17,
`
`2025).
`
`34. Examining the MARC records for a specific item reveals the
`
`comprehensive data transcribed about a particular item at the time that cataloging
`
`and classification occurred. In addition to the creator, title, subjects, and standard
`
`numbers, additional information may provide additional and relevant data
`
`depending on the type of resource. Understanding the full extent of bibliographic
`
`data for an item and the points of access associated with it provides essential
`
`information that can be used to determine the indexing and public availability for
`
`documents described in this Declaration.
`
`14
`
`
`
`1. MARC RECORDS
`35. A MARC record comprises several fields, each of which contains
`
`specific data about the work. Each field is identified by a standardized, unique,
`
`three-digit code corresponding to the type of data that follow. For example, a
`
`work’s title is recorded in field 245, the primary author or creator of the work is
`
`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.7 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.
`
`
`
`See
`
`http://www.loc.gov/marc/bibliographic/bd3xx.html (last visited February 17,
`
`2025).
`
`
`
`7 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 17, 2025) (“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”).
`
`15
`
`
`
`36. 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 to
`
`identify the institution that created the MARC record.8
`
`37. 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 at http://www.loc.gov/marc/bibliographic/. For
`
`example, 6XX
`
`fields
`
`are
`
`termed
`
`“Subject Access Fields.”
`
` See
`
`http://www.loc.gov/marc/bibliographic/bd6xx.html. Among these, for example, is
`
`the 650 field; this is the “Subject Added Entry – Topical Term” field. See
`
`http://www.loc.gov/marc/bibliographic/bd650.html. The 650 field is a “[s]ubject
`
`added entry in which the entry element is a topical term.” Id. 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)).” Id.
`
`
`8 https://www.oclc.org/en/contacts/libraries.html
`16
`
`
`
`38. 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.” See
`
`http://www.loc.gov/marc/bibliographic/bd050.html (last visited February 17,
`
`2025). 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.” Id.
`
`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 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.
`
`39. 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
`
`17
`
`
`
`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. See http://www.loc.gov/marc/bibliographic/bd09x.html
`
`(last visited February 17, 2025).
`
`2. OCLC
`40. 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 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.” 9 Among other services,
`
`OCLC and its members are responsible for maintaining the WorldCat database
`
`(http://www.worldcat.org/), used by
`
`independent and
`
`institutional
`
`libraries
`
`throughout the world.
`
`
`
`9 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).
`18
`
`
`
`41. 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 were initially 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.
`
`42. 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, the item
`
`19
`
`
`
`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. The initial field 005 date
`
`(i.e., the date the MARC record was created) does appear. The date upon which
`
`the most recent update to field 005 occurred also appears in field 005. 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 field 008 is necessarily on or after
`
`the date the library first cataloged and indexed the underlying item.
`
`43. 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.
`
`It also allows librarians around the world to know that a particular MARC record is
`
`20
`
`
`
`authoritative. In contrast, a hypothetical system wherein duplicative records were
`
`created would result in confusion as to which record is authoritative.
`
`44. 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.
`
`V.
`
`PUBLICATION
`“An Overview of Data Replication on the Internet” by Thanasis
`A.
`Loukopoulos, Ishfaq Ahmad, and Dimitris Papadias [Exhibit 1038]
`45. Exhibit 1038 is a copy of a conference paper published in the volume
`
`titled Proceedings International Symposium on Parallel Architectures, Algorithms
`
`and Networks found in the Karl F. Wendt Engineering Library at the University of
`
`Wisconsin – Madison. The conference paper titled “An Overview of Data
`
`21
`
`
`
`Replication on the Internet” by Thanasis Loukopoulos, Ishfaq Ahmad, and
`
`Dimitris Papadias (hereafter “Loukopoulos”) appears beginning on page 31. The
`
`International Symposium on Parallel Architectures, Algorithms and Networks (also
`
`known as ISPAN ’02) was held on May 22-24, 2002, in Makati City, Republic of
`
`the Philippines. Exhibit 1038 is a true and correct copy of the Loukopoulos
`
`conference paper (pages 31-36). I obtained this copy of the conference paper from
`
`the Karl F. Wendt Engineering Library at the University of Wisconsin – Madison.
`
`Specifically, the text of the Loukopoulos 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 1038
`
`was found within the custody of a library – a place where an authentic copy of this
`
`conference proceedings volume would likely be. Exhibit 1038 is a true and correct
`
`copy in a condition that creates no suspicion about authenticity.
`
`46. The Loukopoulos conference paper is available in the IEEE Xplore
`
`
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