UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EPL Limited,
`Petitioner
`
`v.
`
`Colgate Palmolive Co.,
`Patent Owner.
`____________
`
`Case No. PGR2022-00001
`Patent 10,889,093
`____________
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`EPL LIMITED EX1010
`U.S. Patent No. 10,889,093
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`EPL Limited,
`Petitioner
`
`v.
`
`Colgate Palmolive Co.,
`Patent Owner.
`____________
`
`Case No. PGR2022-00001
`Patent 10,889,093
`____________
`
`DECLARATION OF SYLVIA D. HALL-ELLIS, PH.D.
`
`EPL LIMITED EX1010
`U.S. Patent No. 10,889,093
`
`
`
`
`
`I.
`
`INTRODUCTION
`1. My name is Sylvia D. Hall-Ellis. I have been retained as an expert by
`
`EPL Limited, who I am informed is the petitioner in this post-grant review petition
`
`(“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 two
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`publications. My report sets forth my opinions in detail and provides the bases for
`
`my opinions regarding the public availability of these publications.
`
`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 to any additional evidence, testimony, discovery, argument,
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`and/or other additional information that may be provided to or obtained by me after
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`the date of this Declaration.
`
`4.
`
`I am being compensated for my time spent working on this matter at
`
`my normal consulting rate of $325 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.
`
`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
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`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
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`positions in the field of library and information resources. I was first employed as
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`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
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`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
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`Education and Training of Catalogers and the Competencies and Education for a
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`Career in Cataloging Interest Group. I also served as the Founding Chair of the
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`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
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`Committee on Diversity, a member of the REFORMA National Board of
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`Directors, and a member of the Editorial Board for the ALCTS premier cataloging
`
`
`
`2
`
`
`
`
`
`journal, Library Resources and Technical Services. Currently I serve as a Co-
`
`Chair for the Library Research Round Table of the American Library Association.
`
`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.
`
`I have been deposed twenty-one times.
`
`10. My full curriculum vitae is attached hereto as Appendix A.
`
`III. PRELIMINARIES
`Scope of This Declaration
`A.
`11.
`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
`
`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.
`
`12.
`
`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
`3
`
`
`
`
`
`
`
`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
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`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
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`that a document’s authenticity can be established by comparison with an authentic
`
`specimen.
`
`13.
`
`I am informed by counsel that a printed publication qualifies as
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`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
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`could locate it through the exercise of ordinary diligence.
`
`14. 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
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`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
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`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
`
`
`
`4
`
`
`
`
`
`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
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`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.
`
`15.
`
`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.
`16.
`
`Persons of Ordinary Skill in the Art
`I am told by counsel that the subject matter of this proceeding relates
`
`generally to multilayer structures, and in particular reducing or eliminating
`
`deformation of multilayer structures caused by internal stresses.
`
`
`
`5
`
`
`
`
`
`17.
`
`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
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`hypothetical person is also a person of ordinary creativity, capable of
`
`understanding the scientific principles applicable to the pertinent field.
`
`18.
`
`I am told by counsel that persons of ordinary skill in this subject
`
`matter or art would have had the equivalent of a Bachelor’s degree in Chemical
`
`Engineering, Materials Science, or Mechanical Engineering (or equivalent), as well
`
`as at least 2–4 years of academic or industry experience with multilayer polymer
`
`material production or research.. Less academic or industry experience may be
`
`compensated by a higher level of relevant education, such as a Master’s Degree,
`
`and vice versa.
`
`19.
`
`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
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`not later than the early-2000s 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
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`resources providing indexing information, abstracts, and full text services for
`
`publications relevant to the field of this dispute.
`
`
`
`6
`
`
`
`
`
`C. Authoritative Databases
`In preparing this report, I used authoritative databases, such as the
`20.
`
`OCLC WorldCat, the Library of Congress Online Catalog, and the U. S. Copyright
`
`Office database to confirm citation details of the various publications discussed.
`
`21. OCLC WorldCat 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
`
`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.
`
`
`
`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/
`
`7
`
`
`
`
`
`
`
`22. U. S. Copyright Office. Created by Congress in 1897, the Copyright
`
`Office is responsible for administering a complex and dynamic set of laws, which
`
`include registration, the recordation of title and licenses, a number of statutory
`
`licensing provisions, and other aspects of the 1976 Copyright Act and the 1998
`
`Digital Millennium Copyright Act. The public catalog in the Copyright Office
`
`includes information filed since 1978. 3 Individuals can search by title, personal or
`
`corporate name, key word, registration number, and document number. Works
`
`filed before 1978 can be located through the Copyright Public Records Reading
`
`Room. 4 A researcher can find the date on which an item was published and
`
`deposited for copyright.
`
`Indexing
`D.
`23. 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
`
`
`
`3 https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?DB=local&PAGE=First
`
`4 https://www.copyright.gov/circs/circ23.pdf
`8
`
`
`
`
`
`
`
`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.
`
`24.
`
`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.
`
`25. 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.
`
`26. 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
`
`
`
`9
`
`
`
`
`
`career, I have performed and supervised staff who handled these resource sharing
`
`tasks.
`
`27. 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
`
`Index, and Industrial Arts Index. These printed indices have been superseded by
`
`digital database offerings available to information seekers through Ebsco.
`
`28. 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
`
`
`
`10
`
`
`
`
`
`is evidence that the document was publicly available and in use no later than the
`
`publication date of the citing document.
`
`IV. LIBRARY CATALOGING PRACTICES
`A. Machine-Readable Cataloging (MARC) Standard
`I am fully familiar with the library cataloging standard known as the
`29.
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information. 5 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. 6
`
`
`
`5 The full text of the standard is available from the Library of Congress at
`
`http://www.loc.gov/marc/bibliographic/
`
`6 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 1, 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 forty years ago. It
`
`provides the mechanism by which computers exchange, use, and interpret
`11
`
`
`
`
`
`30. 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. 7 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.
`
`
`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.
`
`7 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 1, 2021).
`
`12
`
`
`
`
`
`
`
`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.
`
`Why Is a MARC Record Necessary? LIBRARY OF CONGRESS,
`
`http://www.loc.gov/marc/umb/um01to06.html#part2 (last visited October 1, 2021).
`
`31. Thus, 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 1, 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 standard
`
`
`
`13
`
`
`
`
`
`(reaffirmed in 2016) for Information Interchange Format. The full text of the
`
`standard is available from the Library of Congress. 8
`
`32. 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. 9 If a work is a periodical, then its publication frequency is recorded in field
`
`
`
`8 http://www.loc.gov/marc/bibliographic/
`
`9 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 October 1, 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”).
`
`
`
`14
`
`
`
`
`
`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. 10
`
`33. 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. 11 For example, 6XX fields are termed
`
`“Subject Access Fields.”12 Among these, for example, is the 650 field; this is the
`
`“Subject Added Entry – Topical Term” field. 13 The 650 field is a “[s]ubject added
`
`entry in which the entry element is a topical term.”14 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)).”15
`
`
`
`10 http://www.loc.gov/marc/bibliographic/bd3xx.html
`
`11 http://www.loc.gov/marc/bibliographic/
`
`12 http://www.loc.gov/marc/bibliographic/bd6xx.html
`
`13 http://www.loc.gov/marc/bibliographic/bd650.html
`
`14 Id.
`
`15 Id.
`
`
`
`15
`
`
`
`
`
`34. 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.”16 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.”17 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.
`
`
`
`16 http://www.loc.gov/marc/bibliographic/bd050.html
`
`17 Id.
`
`
`
`16
`
`
`
`
`
`35. 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. 18
`
`36. 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
`
`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
`
`
`
`18 http://www.loc.gov/marc/bibliographic/bd09x.html
`
`17
`
`
`
`
`
`
`
`library with access to the OCLC bibliographic database or through the Library of
`
`Congress.
`
`37. 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,
`
`
`
`18
`
`
`
`
`
`next to the label “Entered.”19 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.
`
`38. 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
`
`
`
`19 In this report, I sometimes refer to the “Entered” entry as field 008, characters
`
`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
`
`from the OCLC database, the “005” label is not shown. The date in the 005 field
`
`instead appears next to the label “Replaced.”
`
`19
`
`
`
`
`
`
`
`authoritative. In contrast, a hypothetical system wherein duplicative records were
`
`created would result in confusion as to which record is authoritative.
`
`39. 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.
`
`B.
`40.
`
`Journals
`In addition to creating records for books, OCLC also hosts records for
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`serial publications. Serial publications have the same collective title but are
`
`intended to continue indefinitely with enumeration such as a volume or issue
`
`number (e.g., magazines, journals, etc.). In the OCLC bibliographic database, the
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`
`
`20
`
`
`
`
`
`first issue of the serial publication is typically cataloged, but the date is left open-
`
`ended with the use of a punctuation mark such as a dash. Individual issues are not
`
`cataloged according to the current national cataloging rules outlined in RDA:
`
`Resource and Access.
`
`41. MARC records for serial publication in OCLC represent the entire run
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`of the serial title. With knowledge of the first issue published, future issues can be
`
`predicted. 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
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`publication run. If a subscription to a serial publication ends its run or is cancelled
`
`before the end of its run, the library will denote that it has stopped receiving new
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`volumes by filling in the end date in the local MARC record.
`
`42. The handling of printed journal subscriptions is shown on the cover or
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`the first few pages of individual issues. As was the best practice among libraries,
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`issues arrived at a central facility and were immediately received, verified as part
`
`of a subscription, checked in, and stamped or labeled with the institution’s name
`
`and date. Determining that the issue was part of the library subscription ensured
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`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
`
`
`
`21
`
`
`
`
`
`issue that did not arrive as expected. In large public libraries with branches and
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`multi-campus libraries within academic institutions, the journals were sorted and
`
`delivered to the subscribing unit. The new issue was placed in the public area; the
`
`older issue was stored so that it remained available.
`
`43. 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
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`automated and now links electronically to holdings records for the MARC record
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`for each serial title, the manual placement of a stamp or label and placing the issue
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`in a public area has 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
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`protocol was followed for the serial publication discussed below.
`
`V.
`
`PUBLICATIONS
`A. Morris book
`44. Exhibit 1005 is a copy of a book, The Science and Technology of
`
`Flexible Packaging: Multilayer Films from Resin and Process to End Use, by
`
`Barry Alan Morris (hereafter “Morris”) and issued by Elsevier with a 2017
`
`copyright date. The text in Exhibit 1005 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 1005 is a true and correct
`22
`
`
`
`
`
`
`
`copy in a condition that creates no suspicion about its authenticity.
`
`45. Attached hereto as Attachment 1a is a true and correct copy of the
`
`MARC record for this monograph from the National Agricultural Library online
`
`catalog. The library ownership is indicated by the presence of the library’s code
`
`(AGL) in the 049 field. The library continues to update this MARC record and
`
`enhanced the MARC record to meet current cataloging rules. The most recent
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`enhancement to the MARC record occurred on September 22, 2019, as shown in
`
`the “Replaced” field (“20190922”). I personally identified and retrieved the
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`library catalog record which is Attachment 1a.
`
`46. Based on finding a print copy of the Morris book in the National
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`Agricultural Library attached as Attachment 1d and a corresponding MARC record
`
`in its online library catalog attached as Attachment 1a, it is my opinion that the
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`book The Science and Technology of Flexible Packaging: Multilayer Films from
`
`Resin and Process to End Use was publicly available on or shortly after September
`
`1, 2017, as shown by the receipt stamp on the title page of Attachment 1d. The
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`International Standard Book Number (ISBN) on Exhibit 1005 (978-0-3232-74273-
`
`8) matches the ISBN in field 020 of Attachment 1a. Therefore, Exhibit 1005 is the
`
`same book as the one that the cataloger at the National Library of Agriculture used
`
`to create the MARC record that is Attachment 1a.
`
`
`
`23
`
`
`
`
`
`47. Attached hereto as Attachment 1b is a true and correct copy of the
`
`MARC record for the Morris book The Science and Technol
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