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Exhibit A

Case 1:07-cv-00787-SLR

CONFIDENTIAL VIDEOTAPED DEPOSITION OF BRAD ALLAN MYERS, PH.D. - VOLUME 1 CONDUCTED ON FRIDAY, APRIL 18, 2008 1 (Pages 1 to 4)
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CONFIDENTIAL * ATTORNEYS EYES ONLY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GIRAFA.COM, INC., Case No. 07-787-(SLR) Plaintiff, v. AMAZON WEB SERVICES LLC, AMAZON.COM, INC., ALEXA INTERNET, INC., IAC SEARCH & MEDIA, INC., SNAP TECHNOLOGIES, INC., YAHOO!, INC., EXALEAD S.A., and EXALEAD, INC., Defendants. VIDEOTAPED DEPOSITION OF BRAD A. MYERS Volume I Washington, DC Friday, April 18, 2008 8:00 a.m. Job No. 1-126469 Pages 1-361
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CONFIDENTIAL * ATTORNEYS EYES ONLY APPEARANCES: On Behalf of Plaintiff: JOHN F. RABENA, ESQUIRE WILLIAM H. MANDIR, ESQUIRE CHANDRAN IYER, ESQUIRE TREVOR HILL, ESQUIRE Sughrue Mion, PLLC 2100 Pennsylvania Avenue, Northwest Washington, D.C. 20037-3213 Telephone: (202) 663-7472

On Behalf of Defendant AMAZON WEB SERVICES, LLC, THOMAS G. PASTERNAK, ESQUIRE R. DAVID DONOGHUE, ESQUIRE DLA Piper 203 North LaSalle Street Suite 1900 Chicago, Illnois 60601 Telephone: (312) 368-4000
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15 AMAZON.COM, INC., ALEXA INTERNET, INC.:

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1 CONFIDENTIAL * ATTORNEYS EYES ONLY 2 3 APPEARANCES (continued): 4 5 On Behalf of Defendant SNAP TECHNOLOGIES: 6 MARK D. NIELSEN, Ph.D., ESQUIRE Videotaped Deposition of BRAD A. MYERS, held 7 Attorney at Law at the offices of: 8 Cislo & Thomas, LLP 9 1333 2nd Street, Suite 500 10 Santa Monica, California 90401 Sughrue Mion, PLLC 11 Telephone: (310) 451-0647 2100 Pennsylvania Avenue, Northwest 12 Washington, D.C. 20037-3213 13 14 On Behalf of Defendant IAC SEARCH & MEDIA, INC.: 15 ALISON MONAHAN, ESQUIRE 16 Quinn Emanuel Urquhart Oliver & Hedges, LLP 17 50 California Street Pursuant to applicable Rules of Civil 22nd Floor Procedure, before Linda S. Kinkade, CSR, RMR, CRR, a 18 19 San Francisco, California 94111 Notary Public, in and for the District of Columbia. 20 Telephone: (415) 875-6394 21 22

CONFIDENTIAL * ATTORNEYS EYES ONLY Reported by: Linda S. Kinkade, CSR, RMR, CRR Videographer: Scott Forman, L.A.D. Reporting

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

Case 1:07-cv-00787-SLR

CONFIDENTIAL VIDEOTAPED DEPOSITION OF BRAD ALLAN MYERS, PH.D. - VOLUME 1 CONDUCTED ON FRIDAY, APRIL 18, 2008 2 (Pages 5 to 8)
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1 CONFIDENTIAL * ATTORNEYS EYES ONLY 2 3 APPEARANCES (continued): 4 5 On Behalf of Defendants EXALEAD S.A. and EXALEAD, 6 INC.: 7 HAROLD V. JOHNSON, ESQUIRE 8 Brinks Hofer Gilson & Lione 9 NBC Tower, Suite 3600 10 455 N. Cityfront Plaza Drive 11 Chicago, Illinois 60611 12 Telephone: (312) 321-4200 13 14 15 16 17 18 19 20 21 22
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CONFIDENTIAL * ATTORNEYS EYES ONLY I N D E X (continued)

EXHIBIT DESCRIPTION PAGE 8 US Patent No. 6,613,100 180 9 Screenshot http://shots.snap.com 312 10 Brad A. Myers Invoices 334

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1 CONFIDENTIAL * ATTORNEYS EYES ONLY 2 INDEX 3 4 EXAMINATION OF BRAD A. MYERS PAGE 5 BY MR. PASTERNAK 9 6 BY MR. DONOGHUE 132 7 BY MR. NIELSEN 180 8 9 EXHIBITS 10 (Attached to transcript) 11 12 EXHIBIT DESCRIPTION PAGE 13 1 Amazon Web Services Notice of 11 14 Deposition 15 2 "Amazon v. Girafa PI Papers" 11 16 3 Declaration of Dr. Brad A. Myers 11 17 4 Girafa.com Opening Memorandum of 11 18 Law in Support of Motion for 19 Preliminary Injunction 20 5 US Patent No. 6,864,904 11 21 6 Declaration of Dr. Brad A. Myers 147 22 7 Compilation of e-mail documents 156

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CONFIDENTIAL * ATTORNEYS EYES ONLY PROCEEDINGS VIDEOGRAPHER: Here begins tape number one in the deposition of Brad A. Myers in the matter of Girafa.com, Inc. vs. Amazon Web Services, LLC, et al. pending in the U.S. District Court for the District of Delaware, case number 07-787. Today's date is April 18th, 2008. The time is 8:06 a.m. The video operator is Scott Forman of L.A.D. Reporting. This deposition is taking place at Sughrue Mion, 2100 Pennsylvania Avenue, Northwest, Washington, DC. Would counsel identify themselves and state whom they represent. MR. RABENA: On behalf of the plaintiff and the witness, I'm John Rabena with Sughrue Mion, and I'm here with Chandran Iyer, also of Sughrue Mion. MR. PASTERNAK: Tom Pasternak, DLA Piper, for Amazon Web Services, LLC, Amazon.com, Inc. and Alexa Internet, Inc. MR. DONOGHUE: David Donoghue also of DLA Piper and also representing Amazon Web Services,

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

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CONFIDENTIAL * ATTORNEYS EYES ONLY Amazon.com and Alexa Internet. MR. NIELSEN: Mark Nielsen, Cislo & Thomas, representing Snap Technologies. MS. MONAHAN: Alison Monahan, Quinn Emanuel, representing IAC Search & Media. MR. JOHNSON: Harold Johnson, Brinks, Hofer, Gilson & Lione, representing Exalead and Exalead S.A. VIDEOGRAPHER: Thank you very much. The court reporter today is Linda Kinkade of L.A.D. Reporting. BRAD ALLAN MYERS, Ph.D. Being first duly sworn, testified as follows: EXAMINATION BY MR. PASTERNAK: Q Good morning, doctor. Could you state your full name? A Brad Allan Myers. Q And what's your home address? A 400 South Homewood Avenue, Pittsburgh, Pennsylvania 15208. Q Do you have a business?
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CONFIDENTIAL * ATTORNEYS EYES ONLY deposition notice. (Exhibit Nos. 1 through 5, inclusive, marked for identification and attached hereto.) MR. PASTERNAK: And I've got some copies. I don't know if I have enough for the whole table. Exhibit 2, Myer Exhibit 2, are copies of all the exhibits to your declaration. Myer Exhibit 3 -- I'm sorry. I'm saying "Myer." It should be Myers, correct? THE WITNESS: M-Y-E-R-S. MR. PASTERNAK: Myers Exhibit 3 is the actual declaration. Myers Exhibit 4 is plaintiff's opening memorandum here. And, last but not least, is the patent, and that will be Myers Exhibit 5, U.S. patent 6,864,904. So you don't need to look at those particularly right now, but, as we get into it, I'm sure we'll be wanting to look at some of them. BY MR. PASTERNAK: Q So, why don't we talk about image servers.
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CONFIDENTIAL * ATTORNEYS EYES ONLY A Yeah. I'm a professor at Carnegie Mellon University. Q And what's the address there? A 5000 Forbes Avenue, Pittsburgh, Pennsylvania 15213. Q How many times have you been deposed? A About ten. Q So you're familiar with the drill? A Yes. Q Do you have any -- are you on any medications today? A No. Q Is there anything else going on in your life such that you can't tell the truth today? A No. Q I'm going to mark about five exhibits up front that you may want to refer to throughout just to make it a little easier, so bear with me while I go through some housekeeping here. The first one is, I'm going to mark as -- what should I call it -- Myer Exhibit 1, it's the

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CONFIDENTIAL * ATTORNEYS EYES ONLY What's an image server? A Well, I think I define that pretty well in my report. Q Can you define it? A Sure. It's a server that provides images. Q Is that your definition? A Let me see what I formally said. Q All right. And now what are you looking at? A At my report, my declaration. Q All right. Let me grab that, too. So you're looking at Exhibit 3? A Yes. Q Okay. A In paragraph 48 on page 11 I define an image server as a type of server that stores and delivers images. Q And that's the first sentence of paragraph 48? A Right. Q Okay. Is that your definition?

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CONFIDENTIAL * ATTORNEYS EYES ONLY A Yes. Q You're sticking with it? A Sure. Q Who came up with that definition? A I did. Q Okay. Does the patent distinguish between an image server and a regular web server, the '904 patent? A Well, it distinguishes that they are separate. Is that the question? Q Does it distinguish between them in any other fashion? Does it technically describe what the difference is between a web server and an image server? A Well, it talks about the image server providing images and the web server providing the rest of the web pages. I'm not sure what the context of your question is. Q Well -A It says they are the same kind of machine. Is that what you're asking?
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CONFIDENTIAL * ATTORNEYS EYES ONLY Apache is. I know what Dell computers are. Q Is there any difference between the machinery that the patent describes to carry out the image server and the web server? A Well, it looks like they are described here identically, so I would say no. Q So what is the difference between the two as described in the patent? A Well, it's what I said before, the image server provides the images and the web server provides the rest of the web pages. Q So the only difference is the function? A As far as I could tell. Q Well, as Girafa's expert here, that's the question. Is there any difference between the -- what is the difference between the web server and the image server as described by the patent? Is the only difference the function? A I think that's fair. Q Do you know the date that the -- what is the earliest priority date for this patent?
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CONFIDENTIAL * ATTORNEYS EYES ONLY Q Does the patent say that? A Well, it says in the preferred embodiment, for example, on column 5, around line 53, it says the image server 104 interfaces with image database -that's wrong -- it's above that. Yeah, here it is, line 46, the web browser -wait. No. I know it's here somewhere. Okay. So web server is at the top of column 6 in the preferred embodiment, is a Dell Power Edge 2450 running Apache 1.3.12. O you see that? Q I see that. A Yeah. And then the image server is described a few lines below, like around 17. It says, interfaces with an image server 210, such as a Power Edge 2450 running Apache 1.3.12. So it pretty much says that the image server and the web server are using the same hardware and software. Q And are these pieces of hardware that you're familiar with? A Well, generally. I mean, I know what

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CONFIDENTIAL * ATTORNEYS EYES ONLY A Well, the patent says that it claims priority from the provisional application filed December 6, 1999. Q Is that the earliest priority date? A As far as I know. Q Have you seen the provisional application? A Yes. Q Is the -- are the claims supported by the disclosure of the provisional application? A I think so. Q Did you review that and make that comparison? A Not in detail. Q Do you have an opinion on that issue? A Yeah. I think -- I think they are supported, but I haven't done a detailed claim-by-claim analysis of every element of the claims. Q What sort of analysis have you done, then? A Well, I just generally read it. Q You read the provisional.

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

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CONFIDENTIAL VIDEOTAPED DEPOSITION OF BRAD ALLAN MYERS, PH.D. - VOLUME 1 CONDUCTED ON FRIDAY, APRIL 18, 2008 8 (Pages 29 to 32)
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CONFIDENTIAL * ATTORNEYS EYES ONLY which is -- I'll read the full title -- Plaintiff Girafa.com, Inc.'s Opening Memorandum of Law in Support of its Motion for Preliminary Injunction. Go to page 18. Have you seen Exhibit 4 before? A I briefly skimmed it yesterday. Q Did you help draft it? A No. Q Yesterday was the first time you saw it? A Exhibit 4, yes. Q All right. Now, to yourself I'd like you to compare the claim construction in paragraph 46 -I'm sorry -- paragraph 48 of an image server with the definition on page 18 of image server. A Okay. Q Top of 18, first paragraph. A Yes. Q Just mentally compare the two. A They are not the same. Q I agree. What are the differences? A Well, my definition, I said an image server is a type of server that stores and delivers images.
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CONFIDENTIAL * ATTORNEYS EYES ONLY BY MR. PASTERNAK: Q All right. Well, so -- well, let's step back. You would tell the judge that the proper construction of image server is the one in your declaration, right? A Yes. Q Isn't it a logical conclusion that the one in the brief is not the proper construction? A I haven't analyzed to what extent it would be different in any substantial way. Q Why don't you do that now. I'd like to know -- I'd like to know for the record which definition you think is the proper definition of image server. And I'll give you the time, if you need it, to compare the two. A Well, I don't need time for that question because I think mine is the proper definition. Q Okay. So then will you concede that the one in the brief is not the proper definition? A Well, I think the only substantial difference is that the one in the brief uses the word
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CONFIDENTIAL * ATTORNEYS EYES ONLY And this document says image server -- an image server is a type of server that is specialized in delivering images. Q So which one am I supposed to consider here when I'm trying to figure out what to do in this case? MR. RABENA: Object to the form. THE WITNESS: Well, I don't have any idea what you're supposed to do. That sounds like a legal question. BY MR. PASTERNAK: Q Frankly, neither do I because there's two different definitions here. A Well, this is what I wrote and I'm sticking by it. So you can listen to me or -- I don't know what the status of what the counsel did. If I was to talk to the court, I would say use my definition. Q All right. So that means, then, doesn't it, that the definition in the brief is not correct? MR. RABENA: Object to the form. THE WITNESS: It's not the same as mine, but that doesn't necessarily mean it's incorrect.

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CONFIDENTIAL * ATTORNEYS EYES ONLY "specialized" in delivering images. There is probably no dispute that, in order to deliver images, it has to store it. So I'd be surprised if you guys have a problem with whether the image server stores images or not, but -- I don't know if there is -Q Let me ask it this way. A Okay. Q I'm giving you the chance now to change your mind if you want to on what the proper construction of image server is going forward into the case. If you're not going to, that's great and I'll move on past this point. A No. I'm happy with my definition. Q All right. Good. So an image server doesn't have to be specialized in delivering images, correct, by your definition? A By my definition, no. Q What does the word "separate" mean in your definition? A Not the same. Q What does "not the same" mean?

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

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CONFIDENTIAL VIDEOTAPED DEPOSITION OF BRAD ALLAN MYERS, PH.D. - VOLUME 1 CONDUCTED ON FRIDAY, APRIL 18, 2008 9 (Pages 33 to 36)
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1 A I'm not sure what you don't understand. 2 Q Does it mean mechanically separate, two 3 different boxes? 4 A The definition or the -- I think it's 5 important that the image server and the web server 6 must be distinguishable in the sense that you can be 7 able to tell one from the other. And certainly, if 8 they are separate hardware, then that's true. 9 Q But do they have to be separate hardware? 10 A Not necessarily. 11 Q Describe a scenario where they aren't 12 separate hardware or a mechanical construction or 13 electrical construction where they are not separate 14 hardware. 15 A Well, you could have, you know -- most 16 servers now are actually a big collection of machines, 17 you know. Amazon, you know, has a great many machines 18 that are the server for Amazon.com, and -19 Q Can I stop you there? How do you know 20 that? 21 A Everybody knows that. 22
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CONFIDENTIAL * ATTORNEYS EYES ONLY Amazon's servers? A Well, I certainly -- I guess I don't know much more than that there is lots of them specifically about Amazon's. Q And that's from reading the paper? A Yeah, general knowledge. Q All right. I got you off topic, and I apologize. The question was describe a scenario where the web server and the image server aren't separate. A Well, they are separate. Q All right. Let me go back and get to where I was. Here's the question. Describe a scenario where there isn't separate hardware for the web server and the image server. A Okay. So I was saying, if there is a big collection of machines, then there might be software that decides which one is going to be the image server and which one's going to be the web server dynamically based on load or something like that. And then the software that provides the image server -- service that provides, you know, that performs the image
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CONFIDENTIAL * ATTORNEYS EYES ONLY Q I don't know that. A Well, you could, if you asked. MR. RABENA: Everybody except one. BY MR. PASTERNAK: Q Well, that's what I'm asking. How do you know how Amazon servers are structured? A Oh, it's general knowledge that all web servers are structured as large collections of machines. Q How are these -- how do these machines connect to each other? A Oh, I don't have detailed knowledge of that. Q Well, is there a wire running from one to the next? How do you get all these machines grouped together so that they work? A Well, there are lots of different ways to interconnect them. I don't know specifically. Q How does Amazon do it? A I don't know that. Q All right. What else do you know about

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CONFIDENTIAL * ATTORNEYS EYES ONLY server function could be running on certain hardware and later could be running on different hardware. So it might move around, but it would still be separate from the function that -- or the service that provides the web service. Q And this hardware you're referring to is, all of it within the same box. A Well, it's -- I guess it's possible because you can put lots of different kinds of things together in the same box. Q How about the scenario where you have a multiprocessor, one-chip multiprocessor chip, right? Are you with me? A Yes. Q And that same multiprocessor is running a web server and is running an image server. Is that separate? Are the web server and the image server separate if that were the case? A I think if you can distinguish, if somebody, you know, an engineer or user, looking at the system can distinguish one from the other, then

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

Case 1:07-cv-00787-SLR

CONFIDENTIAL VIDEOTAPED DEPOSITION OF BRAD ALLAN MYERS, PH.D. - VOLUME 1 CONDUCTED ON FRIDAY, APRIL 18, 2008 10 (Pages 37 to 40)
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CONFIDENTIAL * ATTORNEYS EYES ONLY they are separate. So I think, you know, if they are running in a way that they are separate, that's sufficient. Q What are the -- what are the parameters or metrics that one uses to distinguish whether they are separate for purposes of this definition? As a potential infringer, how do I know what's separate and what isn't? A Well, they serve different functions. Q So it's purely functionality. A I think the patent is clear that it's using the same kind of software. It's using Apache, whatever version it was, to serve both functions, and it's clear that they intended it for the two separate functions. So, clearly, the distinguishing feature is what function it's serving. Q And it doesn't matter if the hardware that -- if the software is running is in the same metal box? They still -- they still can be separate? A Today you can get more and more stuff into the same box, so, you know, you could put, you know, a
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CONFIDENTIAL * ATTORNEYS EYES ONLY Q And was there differences in opinion? A Not that I recall. Q So somehow magically you both came up with the same definition? A We came up with it when we were meeting. Q Right. And were there other possible -possible definitions of one of ordinary skill that were bandied about? A I don't recall. Q You don't recall any other possible definitions that were discussed? A Correct. Q Just this one. A Well, I mean, we had a discussion for a period of time about it, and this is the one we came up with. Q I understand and I'm trying -A And I don't remember the details of the conversation. Q Do you remember any other tweaks on the definition that you finally went with that were
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CONFIDENTIAL * ATTORNEYS EYES ONLY microwave in a regular oven in the same box, but that doesn't mean that they have the same function. So I don't think the physical box is an appropriate metric. Q All right. So that's what I'm trying to get at. And I think what you're telling me is the appropriate metric is if one can distinguish separate functions between the two servers. A Yes. Q And how does -- who is the one that ought to be able to distinguish in your view? A One of ordinary skill in the art. Q And you've defined that in your declaration, right? A Yes. Q Whose definition is that? A You mean who wrote this, the definition? Q I'll start with that. A Yeah. I did. Q Did you talk to your counsel about the definition? A Well, we discussed it, sure.

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CONFIDENTIAL * ATTORNEYS EYES ONLY discussed? A No. Q Can an image server have anything besides thumbnail images on it and still be an image server? A Sure. Q Does the patent say that? A I don't recall. Q Why don't you take some time and look. A I think the only place that specifically references the image server is column 6, line 28, where it says that download via the image server 210 from the image database 212, images of web pages which are referenced in hyperlinks. So from my quick scan it seems like it only mentions using it for the thumbnails. Q So are you changing your answer? I asked you whether or not an image server could have things besides thumbnails, other data stored. Would it still be an image server if it had things besides thumbnail images? A Well, by my definition it can have a

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

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CONFIDENTIAL * ATTORNEYS EYES ONLY variety of kinds of images, and I think, to the extent that you have a server which provides thumbnail images as well as, say, full-size images, that would still be an image server under my definition. Q What if it provides something other than images? A Well, I've -- I've defined it in a way that allows it to provide other kinds of data. Q How so? A Well, it's the type of server that stores and delivers images. That doesn't preclude it from delivering other kinds of content. Q And what is the basis for that definition, the nonprecluded definition in the patent? Is there any basis for that? A Well, the patent doesn't talk about the image server providing anything else besides the images of web pages. So I don't have any evidence off the top of my head of how it can provide other functions. Q I want to go back to a line you referred me
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CONFIDENTIAL * ATTORNEYS EYES ONLY Here, column 5, around line 34. The image server interfaces with an image database, which is preferably a Dell Edge 24 running MySQL. So it sounds like it's saying the image database is a separate machine, a separate Dell computer, which was running different software than the image server, which it defines just above as running Apache. Q So is that -- is that congruent with your definition of image server? I just want to be clear. Image database is not part of the image server, correct? A Well, that -- that seems to be a reasonable conclusion from that. Q All right. Is that your definition? A Well, yeah, I defined an image server as a type of server that stores and delivers images. And you found the patent seeming to say that the image server is separate from the image server -- the image storer. Q So do you want to change your definition? I think we now have three potential claim
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CONFIDENTIAL * ATTORNEYS EYES ONLY to. And let me see if I can find it. Yeah, column 6, line -- let's look at column 6, about line 24 through line 32. Do you see the paragraph starting with "the visualization functionality"? A Yes. Q Okay. In that paragraph there is a discussion of an image database 212. Do you see that? A Yes. Q What is that? A That's a collection of all the images that the image server provides. Q Is the image database part of the image server? A Well, I think you can see clearly in FIG. 1 and FIG. 2 that the image server box is separate from the image database box. Q So the image database is not part of the image server. A So, I'm looking also at column 6 around line 9. Wait. That's the wrong place.

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CONFIDENTIAL * ATTORNEYS EYES ONLY constructions. A Well, luckily, the judge gets to decide and I don't actually have to decide what the final definition is. Q I agree, but you do get to take a position on it. So I'm giving you the chance now to delete, I guess, to delete "that stores and" from your proposed claim construction, if you want to. A Well, I guess in the context of this patent, now that you point out all these specific issues, I'd be comfortable with the definition, the revised definition that you're -Q Okay. A -- now proposing. Q Let's make sure we have it right. My understanding that your proposed claim construction of image server now is a type of server that delivers images; is that right? A Okay. Q Good. Now what I'd like you to do, doctor, is go to Claim 1 of the '904 patent and describe to me

L.A.D. REPORTING & DIGITAL VIDEOGRAPHY - (800) 292-4789 CONFIDENTIAL - ATTORNEYS EYES ONLY

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2128

MANUAL OF PATENT EXAMINING PROCEDURE

increased. Items provided in easily reproducible form have thus become "printed publications" as the phrase is used in 35 U.S.C. 102. In re Wyer, 655 F.2d 221, 226, 210 USPQ 790, 794 (CCPA 1981) (Laid open Australian patent application held to be a "printed publication" even though only the abstract was published because it was laid open for public inspection, microfilmed, "diazo copies" were distributed to five suboffices having suitable reproduction equipment and the diazo copies were available for sale.). The contents of a foreign patent application should not be relied upon as prior art until the date of publication (i.e., the insertion into the laid open application) can be confirmed by an examiner's review of a copy of the document. See MPEP § 901.05. IV. PENDING U.S. APPLICATIONS

As specified in 37 CFR 1.14(a), all pending U.S. applications are preserved in confidence except for published applications, reissue applications, and applications in which a request to open the complete application to inspection by the public has been granted by the Office (37 CFR 1.11(b)). However, if an application that has not been published has an assignee or inventor in common with the application being examined, a rejection will be proper in some circumstances. For instance, when the claims between the two applications are not independent or distinct, a provisional double patenting rejection is made. See MPEP § 804. If the copending applications differ by at least one inventor and at least one of the applications would have been obvious in view of the other, a provisional rejection over 35 U.S.C. 102(e) or 103 is made when appropriate. See MPEP § 706.02(f)(2), § 706.02(k), § 706.02(l)(1), and § 706.02(l)(3). See MPEP § 706.02(a), § 804 and § 2136 et seq. for information pertaining to rejections relying on U.S. application publications.

the subject matter or art, exercising reasonable diligence, can locate it." In re Wyer, 655 F.2d 221, 210 USPQ 790 (CCPA 1981) (quoting I.C.E. Corp. v. Armco Steel Corp., 250 F. Supp. 738, 743, 148 USPQ 537, 540 (SDNY 1966)) ("We agree that `printed publication' should be approached as a unitary concept. The traditional dichotomy between `printed' and `publication' is no longer valid. Given the state of technology in document duplication, data storage, and data retrieval systems, the `probability of dissemination' of an item very often has little to do with whether or not it is `printed' in the sense of that word when it was introduced into the patent statutes in 1836. In any event, interpretation of the words `printed' and `publication' to mean `probability of dissemination' and `public accessibility' respectively, now seems to render their use in the phrase `printed publication' somewhat redundant.") In re Wyer, 655 F.2d at 226, 210 USPQ at 794. See also Carella v. Starlight Archery, 804 F.2d 135, 231 USPQ 644 (Fed. Cir. 1986) (Starlight Archery argued that Carella's patent claims to an archery sight were anticipated under 35 U.S.C. 102(a) by an advertisement in a Wisconsin Bow Hunter Association (WBHA) magazine and a WBHA mailer prepared prior to Carella's filing date. However, there was no evidence as to when the mailer was received by any of the addressees. Plus, the magazine had not been mailed until 10 days after Carella's filing date. The court held that since there was no proof that either the advertisement or mailer was accessible to any member of the public before the filing date there could be no rejection under 35 U.S.C. 102(a).). ELECTRONIC PUBLICATIONS AS PRIOR ART Status as a "Printed Publication" An electronic publication, including an on-line database or Internet publication, is considered to be a "printed publication" within the meaning of 35 U.S.C. 102(a) and (b) provided the publication was accessible to persons concerned with the art to which the document relates. See In re Wyer, 655 F.2d 221, 227, 210 USPQ 790, 795 (CCPA 1981) ("Accordingly, whether information is printed, handwritten, or on microfilm or a magnetic disc or tape, etc., the one who wishes to characterize the information, in whatever form it may be, as a `printed publication' * * * should

2128

"Printed Publications" as Prior Art [R-5]

A REFERENCE IS A "PRINTED PUBLICATION" IF IT IS ACCESSIBLE TO THE PUBLIC A reference is proven to be a "printed publication" "upon a satisfactory showing that such document has been disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in

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PATENTABILITY

2128.01

produce sufficient proof of its dissemination or that it has otherwise been available and accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents.'" (citations omitted).). See also Amazon.com v. Barnesandnoble.com, 73 F. Supp. 2d 1228, 53 USPQ2d 1115, 1119 (W.D. Wash. 1999) (Pages from a website were relied on by defendants as an anticipatory reference (to no avail), however status of the reference as prior art was not challenged.); In re Epstein, 32 F.3d 1559, 31 USPQ2d 1817 (Fed. Cir. 1994) (Database printouts of abstracts which were not themselves prior art publications were properly relied as providing evidence that the software products referenced therein were "first installed" or "released" more than one year prior to applicant's filing date.). The Office policy requiring recordation of the field of search and search results (see MPEP § 719.05) weighs in favor of finding that Internet and on-line database references cited by the examiner are "accessible to persons concerned with the art to which the document relates and thus most likely to avail themselves of its contents." Wyer, 655 F.2d at 221, 210 USPQ at 790. Office copies of an electronic document must be retained if the same document may not be available for retrieval in the future. This is especially important for sources such as the Internet and online databases. Date of Availability Prior art disclosures on the Internet or on an online database are considered to be publicly available as of the date the item was publicly posted. *>Absent evidence of the date that the disclosure was publicly posted, if< the publication >itself< does not include a publication date (or retrieval date), it cannot be relied upon as prior art under 35 U.S.C. 102(a) or (b)*>. However<, it may be relied upon to provide evidence regarding the state of the art. Examiners may ask the Scientific and Technical Information Center to find the earliest date of publication >or posting<. See MPEP § 901.06(a), paragraph IV. G. Extent of Teachings Relied Upon An electronic publication, like any publication, may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. See MPEP § 2121.01 and § 2123. Note, however, that

if an electronic document which is the abstract of a patent or printed publication is relied upon in a rejection under 35 U.S.C. 102 or 103, only the text of the abstract (and not the underlying document) may be relied upon to support the rejection. In situations where the electronic version and the published paper version of the same or a corresponding patent or printed publication differ appreciably, each may need to be cited and relied upon as independent references based on what they disclose. Internet Usage Policy See MPEP § 904.02(c) for the portions of the Internet Usage Policy pertaining to Internet searching and documenting search strategies. See MPEP § 707.05 for the proper citation of electronic documents. EXAMINER NEED NOT PROVE ANYONE ACTUALLY LOOKED AT THE DOCUMENT One need not prove someone actually looked at a publication when that publication is accessible to the public through a library or patent office. See In re Wyer, 655 F.2d 221, 210 USPQ 790 (CCPA 1981); In re Hall, 781 F.2d 897, 228 USPQ 453 (Fed. Cir. 1986).

2128.01 Level of Public Accessibility Required [R-3]
I. A THESIS PLACED IN A UNIVERSITY LIBRARY MAY BE PRIOR ART IF SUFFICIENTLY ACCESSIBLE TO THE PUBLIC

A doctoral thesis indexed and shelved in a library is sufficiently accessible to the public to constitute prior art as a "printed publication." In re Hall, 781 F.2d 897, 228 USPQ 453 (Fed. Cir. 1986). Even if access to the library is restricted, a reference will constitute a "printed publication" as long as a presumption is raised that the portion of the public concerned with the art would know of the invention. In re Bayer, 568 F.2d 1357, 196 USPQ 670 (CCPA 1978). In In re Hall, general library cataloging and shelving practices showed that a doctoral thesis deposited in university library would have been indexed, cataloged and shelved and thus available to the public before the critical date. Compare In re Cronyn, 890 F.2d 1158, 13 USPQ2d 1070 (Fed. Cir. 1989) wherein doctoral theses were shelved and indexed by

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Exhibit G

Web Representation with Dynamic Thumbnails - CiteSeerX

http://citeseerx.ist.psu.edu/viewdoc/summary?doi=10.1.1.27.2654

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Web Representation with Dynamic Thumbnails
by Stefan Schmid http://www.comp.lancs.ac.uk/computing/users/sschmid/Yuforic/YuforicExtAbstr.ps Add To MetaCart
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Abstract:
Abstract: The popularity of the World Wide Web No tags have been applied to this document. (WWW) has led to rapid growth of Web sites all over the world. Thousands of new Web pages are Submit Add a tag: designed every day. Today, Web pages with embedded hyper-links rendered by Web browsers are only weak representation of the Web topology. Using static thumbnails (small images) of Web pages to represent relations of Web pages is an employed technique. Due to the limitations of permanent images, we propose a novel online service to provide up-to-date thumbnails of any Web pages. Online provided and dynamically generated thumbnails open new ways to represent the Web and enhance Web designers potentialities. As an application, we show a VRML-based user interface that visualizes a user's vicinity while browsing the Web. 1

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Citations
102 Hypertext Transfer Protocol -- HTTP/1.0 ­ Berners-Lee, Fielding, et al. - 1996 1 Understanding Thumbnail Images, Montgomery County Public School ­ Arrington - 1996 1 Information technology: Computer graphics and image processing -- The Virtual Reality Modeling ­ unknown authors -0 1 A VRML-based Visualization ­ Bonisch, Fiedler, et al. - 1997

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