En Banc: Methods do not have Exportable Components and Therefore Method Claims Cannot be Infringed Under Section 271(f)

Cardiac Pacemaker v. St. Jude __ F.3d ___ (Fed. Cir. 2009) (En Banc)

In an en banc decision, the Federal Circuit has ruled that 35 U.S.C. § 271(f) “does not cover method claims.” This decision overturns the controversial 2005 decision in Union Carbide v. Shell Oil Co., 425 F.3d 1366 (Fed. Cir. 2005). The ruling was widely expected based on the Supreme Court’s 2007 decision in Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007) (holding that “master disks” were not a 271(f) “component” when abroad to be copied and then installed to form a would-be infringing system). In reading Microsoft v. AT&T, the Federal Circuit found “a clear message that the territorial limits of patents should not be lightly breached.”

The holding is based in the logic that a process is a series of steps and, therefore, does not have any physical components amenable to export.

[M]ethod patents do have “components,” viz., the steps that comprise the method, and thus they meet that definitional requirement of Section 271(f), but the steps are not the physical components used in performance of the method.

The result in this case is that Cardiac’s process claim (Claim 4) cannot be infringed under Section 271(f).

Claim 4 of the ’288 patent is comprised of the steps of determining a heart condition, selecting cardioversion as the appropriate therapy, and executing a cardioverting shock. Cardiac does not allege that all of those steps are carried out in the United States with respect to certain of the ICDs. Moreover, it cannot allege that the steps of the method are supplied, a contradiction in terms. Rather, Cardiac alleges that St. Jude’s shipment of a device that is capable of performing the method is sufficient to fall within the scope of Section 271(f). Although the ICD that St. Jude produces can be used to perform the steps of the method, as we have demonstrated, Section 271(f) does not apply to method or process patents. As Section 271(f) does not encompass devices that may be used to practice a patented method, St. Jude is therefore not liable for infringement … for IDCs exported abroad.

Reversed (on this issue)

Notes

  • Judge Newman dissented from the opinion – arguing that the language of 271(f) applies to any “patented invention.”
  • This case was only partially decided en banc. Part (c)(2) is en banc while the rest of the decision is decided by the panel of Judges Newman, Mayer, and Lourie. Judge Lourie signed the entire majority opinion, and Judge Newman only dissented as to Part (c)(2).
  • Cardiac Pacemaker v. Jude: Challenging 271(f) Liability for Components of a Method (Discussing briefs)

40 thoughts on “En Banc: Methods do not have Exportable Components and Therefore Method Claims Cannot be Infringed Under Section 271(f)

  1. tyrone they want to bicker about the “components” of the claim. They never alledge that a full apparatus is constructed to perfrom the method then exported.

  2. Uh, if this case is about a device that can be used to perform a patented method, then either: the device was patentable and, if the patentees of the method didn’t choose to patent it also, then too bad for them; or the device wasn’t patentable in the first place, in which case they shouldn’t be able to exercise any rights over it. Or am I missing something?

  3. broj,

    Thanks for noticing – just been a bit busy lately. The fun of smacking around 6 and Malcolm will have to wait (I know I can come back in 6 months and find the same level of intellectual capabilities in action).

    At least it seems that MaxDrei has improved his postings

  4. “I’d say my method requires the blurbium implanted substrate”

    You’d say that because you don’t display a basic understanding about method claims which 11 members of this panel do. Your method requires etching. A special kind of etching. Then it requires sputtering. A special kind of sputtering. Your method claim does not protect the structural components in the claim.

    Inter alia:

    “ETCHING a quantum well in a first layer fusion bonded on a substrate treated with blurbium ions; and”

    “SPUTTERING a second layer on the quantum well and the first layer until the quantum well is filled”

    You are never going to get around the fundamental difference that makes a method claim what it is. And if you try, I’ll hit your as with 101/112 so fast you won’t know what hit you. Or you’ll get a 102/103 for your PbP format that you didn’t even mean to use.

    The fact is that the courts brought the current misunderstanding of method claims upon itself by allowing method claims to distinguish themselves from the prior art by reciting a new structure. That, however, was judicial nonsense trumped up by a court long ago that flew in the face of a hundred years of precedent. That being as it may, does not mean that courts fundamentally changed what a method claim is. They merely decided to allow method claims to distinguish themselves from prior art in a different way.

    Conduct a thought experiment with me right fast that might help you wrap your mind around this for a moment. Imagine yourself as a patent attorney in the year 1900. Method claims are not distinguishable over the prior art by reciting a new structure. That is, your method claim above instead reads merely:

    A method for making an (nonlimiting nonsense), comprising:
    etching a (nonlimiting nonsense, aka “anything”) in a first layer (nonlimiting nonsense); and
    sputtering a second layer on the (anything) and the first layer until the (anything) is filled.

    I may not have done that completely, there may be more things that need to be nonlimiting that I didn’t take out.

    Now, I believe you can understand why the nonlimiting’s were put there in this thought experiment. If you can’t stop me here and allow me to further explain why. If you can, let us continue.

    From the above modified claim you can more clearly see what your method is in terms of it’s base statutory class. This is what is being used for determinations about your claim all throughout the statute, except for the judicially created factor that must be taken into account when one looks at how the claim distinguishes itself from the prior art.

    From here, it shouldn’t be hard for you to understand why the “components” of the claim are the method steps involved, and the claim doesn’t “require” your specialty substrate. Merely in today’s time the courts have allowed a special exception to the normal rules of interpreting method claims so that the claimed step gets the benefit of the specialty substrate when we determine if the step itself distinguishes over the prior art.

    I make an aside here to explain that what the court did in allowing the structure to lend distinction to the method step was reflected also in the courts making those steps limited to having those qualities when determining infringement as well. But this is an aside unrelated to the explanation being given.

    I’ve taken the time to sit down and explain this to see if I can get you to understand this better in the hopes that this method will be able to be used on other individuals like yourself to teach them.

    As a side note, your substrate isn’t rare, it is non existent. Blurbium ions.

    ” I don’t see how this is distinguishable from sending parts for the LED to be assembled overseas.”

    From the above analysis it should be apparent to you how the court is treating method claims, outside of determining how it is distinguished from the prior art, and how infringement is determined. Was any etching sent over seas? No? Any sputtering? No? I thought so.

    Perhaps it is it your position that if you export anything even loosely related to the method you infinge?

    A method comprising: smacking Practitioner across the backside of his head, wherein the smacking is performed by a worker.

    So, for instance, if I send a worker to my plant overseas in china and have him smack you across the backside of the head while he’s over there then he infringes?

    I don’t think so. I could make other examples but I think you get the point. You have to export the components of the claim itself over there to have them infringe.

    Here’s a great example.

    A method comprising:

    etching a substrate wherein the substrate comprises TaTiBGeIFAlPBl

    (Bl=blurbium lol)

    If I export some substrates made of that stuff to another country where someone etches them then I infringe that claim? Presuming I knew they were going to etch them, and perhaps it was my company that did the etching.

    I don’t think so. Your manner of interpreting the statute leads to too many absurdities. In fact, the current regime of allowing structure to distinguish method claims leads to too many absurdities as is, but the courts will have to rectify its own mistake so many years ago before people will understand method claims once again without specific instruction.

    To summarize, method claims do not have components per se, they have steps, and even if we call those “components”, the structures in the claim still are not components. The method step(s) might take place in, around, or might affect a structure or otherwise involve a structure, but that structure will never be a component of the claim. Ever. Unless your claim fails 101/112 as a mixed claim type. In which case, I don’t care because a court will take care of that claim right fast.

    6 gets his first patent: “I’M KING OF THE FRICKING WORLD!”

  5. Normally, I’m very pro-Newman, and I freely admit I haven’t read her dissent here. However, even if she’s technically right, there’s nothing you can enforce on a method done outside the US. Congress love to write extraterritorial laws to please the voters, but they know (if they are honest, if only to themselves), and we all know, that such things are hopelessly invalid. The only reason 271(f) has any actual effect atall is because it touches things done in the US, i.e. making of components for future export.

    Now, if part of the method were performed in the US, you might have something, but on a theory of contributory infringement perhaps, not under 271(f).

  6. Why is it every time I even see a Mooney post (because I avoid actually reading them) do I feel the urge to choke back a stream of projectile vomit directed his way? Guess he’s just pukeriffic.

  7. “She didn’t reveal it on purpose. I put 1+1 together and found out. Then I looked her up and everything fit, perfectly. Too perfectly.”

    Sock Puppets Don’t Wear Plaid

  8. She didn’t reveal it on purpose. I put 1+1 together and found out. Then I looked her up and everything fit, perfectly. Too perfectly. Just like with JAOI. Which is why you don’t hear much from him, and when you do it is toned way down. Everyone on this board who wants to maintain their pseudonym’s anonymity had better not show up in the public spotlight as themselves. They speak the exactly the same, on the same kind of topics, and take the exact same kind of positions.

    That’s why I can’t do much as myself to be famoose either :( Being famoose as 6 has its downside.

    You know what is funny about NAL? I think I invited her here a couple of years back, but I haven’t gone back into my records to make sure it was her. I’m pretty certain that it was her though. She wrote an article very closely aligned with an interest I had back then. It’s ironic that I should now be the one to make her stop her regular posting sejule.

    In any case NAL, I know you’re lurking, come on out, but try to play nice.

    It seems my response to practitioner didn’t get posted from this afternoon, I’ll retype it later.

  9. You know, I can’t find any posts by NAL since August 14. I recall that 6 said that NAL had revealed her secret identity to him. I’m sensing a connection. Has the League of Calmitous Intent captured NAL and imprisoned her at their lair on Spider Skull Island?

  10. Clearly, we need a treaty that makes patents enforcable across jurisdictions. Would someone please call the king of the fricking world and get him started on this treaty?

  11. “If I have a patented process with three steps and each step is performed in a different patent jurisdiction, and I have patents on the process in all three jurisdictions, could I bring a suit under one or more of my patents?”

    It sounds as if nobody is infringing your process so the answer is no. BOO HOO HOO HOO HOO HOO! Next time write better claims.

    Or perhaps consider that if your competitor is forced to engage in such shenanigans to avoid your patent and you still can’t compete, then you shouldn’t be in business.

    Seriously, people. You invent something, you get a patent. You don’t become king of the fricking world.

  12. “There never will be a “method” that “requires” a certain treated substrate.”

    A method for making an LED, comprising:
    etching a quantum well in a first layer fusion bonded on a substrate treated with blurbium ions; and
    sputtering a second layer on the quantum well and the first layer until the quantum well is filled.

    I’d say my method requires the blurbium implanted substrate, which is rare and can only be found in the U.S. from a single manufacturer A.

    A exports the blurbium ion implanted substrate to Piratania where the claimed method is practiced to make the LED. I don’t see how this is distinguishable from sending parts for the LED to be assembled overseas. If the method was practiced in the U.S. it would be infringed as the statute requires.

  13. Grammar Elitist (probably Mooney)

    It was enough “anal retentive points” to get DC to change the title. Case closed.

  14. “If anything, I believe patented processes are more deserving of protection than products, as steps of a process could be performed in multiple jurisdictions, thereby falling under none individually.”

    I need to preview more often.

  15. Newman, one of the most consistent, logical, and just of the CAFC jusges is wrong here.

    Actually, I agree that no distinction should be made between patented apparatuses and processes, I just believe exporting components of either should not be illegal. It’s a ridiculous overreach of our patent laws.

    If anything methods I feel patented processes are more deserving of protection than products as steps of a process could be performed in multiple jurisdictions thereby falling under none individually.

    Here’s a hypothetical question for anyone. If I have a patented process with three steps and each step is performed in a different patent jurisdiction, and I have patents on the process in all three jurisdictions, could I bring a suit under one or more of my patents?

  16. “How can a claim infringe section 271(f)?

    Good point broje. But don’t expect rigor around here.”

    Excellent work guys. Broje, Practitioner, you get 5 anal retention points each. By the way, I think I saw a verb improperly conjugated a few posts ago. Maybe you should go check that out.

  17. “I don’t quite understand your position. If a claim is tied to a particular machine as is required by Bilski, are you saying that in reality the process still would not require the particular machine? I don’t think that makes any sense.”

    Look, methods are actions, steps, the like. Simple as that.

    When you look at this claim:

    A method comprising:

    providing an LED
    polishing the LED

    You trained eye should see two “components” (to use language from the thread, you could say “limitations”) to this claim: 1. providing and 2. polishing. You should also notice that attributes of the providing include that it is done upon an LED, and attributes of the providing step are that it is performed upon the same LED as the providing is.

    What is “required” by the claim is the components, not the attributes of the components. That said, if your components in the art don’t have the attributes, then you don’t have the components, i.e. the steps themselves. For instance, when you go to the prior art and look around, finding a “providing step”, a “polishing step”, and an “LED” all in a reference doesn’t do it. What you need is the STEP of “providing an LED” and the STEP of “polishing the same LED”.

    What you will see some practicioners argue is that, for instance, their claim requires an LED if my reference provides, for instance, a fake tooth and polishes the fake tooth. This is wrong. You will see better practicioners argue that their claim requires a step of providing an LED. This is correct.

    This seems like a little blurb nitpick, blah blah 6 you know what they mean. But you wouldn’t believe the amount of confusion that this kind of mess can lead to when things get complicated, the claim is a page long and there are 5 arguments. You’ve got the practicioner arguing in one area that his claim requires x structure, then later on he says that his claim requires z method step and then he says that it wouldn’t be obvious to sub in x structure from reference b for y structure in reference a. Sometimes maybe he is right, sometimes maybe he is right about the first two things assuming I can tell he means a step limitation in his first argument, but then perhaps something comes up in the final argument. Specifically what happens sometimes, and this is rare, is that it would be not obvious to substitute in x for y structure, HOWEVER, it would be obvious to sub in the step of providing x for the step of providing y. Usually this hinges on motivations, 2ndary considerations, etc. Sometimes, and this is even more rare, super rare, the reference may not even disclose a structure which one would implicitly presume a method claim to “require” (and the attorney will argue thus), and yet does implicitly disclose a method step requiring a property of that structure be known. Sorry I can’t give an example, but I’m dealing with a case like this right now.

    In any event, it is a fundamental difference between claim types that matters and isn’t always apparent to people.

    All that said, don’t get me wrong, I deal with some of the best lawyers in the biz (according to the rankings) so when they have things explained to them they usually pick up quite quickly what is going on.

    BTW, I’m betting that Newman can’t ship me some “providing” and some “polishing”. And I don’t want her information on how to do it, I want it. I want me some providing, and some polishing. And I want it cheap.

  18. “let me just say that I have only slightly altered my position because it still seems that the statute is not concerned whether the assembled product is re-introduced into the U.S.”

    It “seems” that way because it’s correct. 271(f) was written to prevent manufacturers of apparatuses (say, a shrimp de-veiner) from avoiding infringement of an apparatus claim by selling the unassembled (and therefore non-infringing) parts of the apparatus to overseas buyers. It was illegal to import the assembled patented device at the time the statute was written (and still is). That’s why the statue isn’t concerned with importation of the assembled device.

  19. You don’t get it bucko. There never will be a “method” that “requires” a certain treated substrate.

    Six,

    I don’t quite understand your position. If a claim is tied to a particular machine as is required by Bilski, are you saying that in reality the process still would not require the particular machine? I don’t think that makes any sense.

  20. Read the prior CAFC panel decision being overturned [presumably too late to help the loser], Union Carbide v. Shell Oil Co., 425 F.3d 1366 (Fed. Cir. 2005), and you will see why it needed to be.

  21. “If there was a hypothetical method for making an LED that required a certain treated substrate to be processed according to a step, and the substrate was supplied from the U.S. to a foriegn manufacturer who then practiced the claimed method, according to 271(f) the U.S. supplier of the treated substrate, hypothetically, “shall be liable as an infringer.”"

    You don’t get it bucko. There never will be a “method” that “requires” a certain treated substrate. There will only EVER be methods which require certain method steps be performed. Method steps do not “require” a certain treated substrate. What they “require” is a step. You say “well how could you perform the step without the substrate lolzlzlzlzlzllalzlzlzlaolzolz?” The answer is: You can’t. But that isn’t what is “required” by the claim.

    “hypothetically, “shall be liable as an infringer.”"

    Hypothetically in a made up world, but in reality they’re not liable.

    “This seems like a ridiculous and ill-considered decision that undermines the strength of all patentees’ rights and the strength of method claims in general from circumvention by foreign infringement”

    If they never had such “rights” in the first place then nothing was taken away mo ron. This court merely clarified that there were no such rights to begin with. So, if you could stop mischaracterizing things it’d be nice.

    “The point is that 271(c) distinguishes components from patented processes. ”

    The fact that you even needed to read c is telling as to your reasoning skills. As well as your understanding of the difference between method and product claims. Don’t worry though, you aren’t alone amongst your brethern, I have to explain it on practically a weekly basis. I see your kind of nonsense in replies all the time. “Hur, but my mehtod reqires x struktur”. No it doesn’t jakas, your method requires a method step just like every other method on the face of the planet.

    “even though, IMO components could be broadly read to mean method steps ”

    In yours and the fed circ, and everone “who knows their arse from their elbow”‘s opinion you mean.

    In any case, at least you show some modicum of possibility of being redeemed from the unthinking hordes of newman followers.

    How can it be squared with “quanta” martin? It is already square, there is no additional squaring needed. That’s like asking “how can 1+1=2 be squared with 1.5+.5=2? How does one square something with something it is already square with?

  22. Babel-ing? If you’re talking to me I was trying to give you a little support (for the last time).

  23. And let me just say that I have only slightly altered my position because it still seems that the statute is not concerned whether the assembled product is re-introduced into the U.S.

    As noted above, 271(f) specifically states that the component would be combined outside the U.S. “in a manner that would infringe the patent if such combination occurred within the United States.”

  24. I just read the following link to lawprofessors.typepad.com and have slightly altered my position. Based primarily on a point that was not raised here (certainly not by Mooney). The point is that 271(c) distinguishes components from patented processes. Thus, components should be construed as physical parts, even though, IMO components could be broadly read to mean method steps (even though the author of the above piece seems to pooh, pooh that idea). Consider “software components” – commonly used term in the software development world.

  25. Not surprisingly, Mooney’s amateurish and oversimplistic “analysis” misses the point. It would be not soon enough that we could bid him “good riddance.”

    271(f) says:

    (1) Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the combination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.

    (2) Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or especially adapted for use in the invention and not a staple article or commodity of commerce suitable for substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.”

    If there was a hypothetical method for making an LED that required a certain treated substrate to be processed according to a step, and the substrate was supplied from the U.S. to a foriegn manufacturer who then practiced the claimed method, according to 271(f) the U.S. supplier of the treated substrate, hypothetically, “shall be liable as an infringer.”

    This seems like a ridiculous and ill-considered decision that undermines the strength of all patentees’ rights and the strength of method claims in general from circumvention by foreign infringement.

  26. The first rule of deconstruction is to corrupt the meaning of the language – Alinksy could not have come up with a better strategy.

  27. The en banc is interesting in terms of the time spent discussing “tangible” components versus “intangible” steps and the “fundamental” distinction between method and product/article/apparatus claims.

    A preview of things to come?

  28. “The title says ” … Method Claims Cannot Infringe Section 271(f).”

    How can a claim infringe section 271(f)?”

    Good point broje. But don’t expect rigor around here.

    Its the same as “key to 101 Patentability,” which I think should read “the key to subject matter eligibility under section 101″

  29. Jay: “Let’s look at an apparatus claim. If you don’t have a patent on an apparatus in a non-US country you can’t stop them from making or selling the apparatus in the non-US country. You also can’t stop someone from urging them to make that apparatus in the non-US country. However, that doesn’t mean that someone should be allowed to produce the apparatus in the US and then sell it outside the US.”

    Dude, if you have a patent on the apparatus in the US (and only the US) you have all you need to stop someone from producing the apparatus in the US. That is trivial. It doesn’t matter what happens outside the US.

    What Cardiac (and Newman) want to do is pretend that 271(f) mandates that a method claim be construed to cover “an apparatus capable of carrying out the method”! What owner of a method claim wouldn’t love this result? Sadly for such patentees, there is nothing in the legislative history or text of 271(f) to suggest that the statute was intended to effect this radical transformation.

  30. Man you know they must get tired of Newman’s constant patent protectionism even in the face of the cleal language of a statute. Her argument about the words “patented invention” or whatever are just fine, and I see where she is coming from, but then the statute reads further about components. At this point, her reasoning ability takes a turn for the worst. She seems to believe that there is a manner in which to provide “components” of a method claim.

    OK Newman, I’d like to order some components of a method from you. How much do you charge? When can I expect them in the mail? Don’t try to teach them to me, send THEM to me.

    Newman’s dissention is fast going downhill from plain ol’ “oh she’s just wrong” to R E T A R D E D.

    “it is always appropriate to assume that our elected representatives, like other citizens, know the law”

    What a joke. You couldn’t find one normal “citizen” who “knows” the law. Even lawyers don’t fully “know” “the law”. It’s way past the time when we could presume such nonsense. Maybe in the year 1800 this was a reasonable presumption, but I doubt it since most towns had like 2 books total, and both were the bible.

    If nothing else Newman is good for laughs and demonstrating how convoluted legal arguments based on convoluted legal nonsense should, and often do go down in flames.

    She’s been practicing since before I was born and still cannot grasp the difference between a product and a process claim. I wonder if Noise is her daughter.

    Newman, where today’s technology “deserves” something.

  31. “why shouldn’t 271(f) cover components whose only purpose is to be combined in practicing the patented process”

    Because that isn’t how it reads? If they wanted to make it read thus then congress darn well could have. They didn’t, and it doesn’t.

  32. MM & 6,

    You have no idea what you’re talking about. Same goes for the Federal Circuit majority.

    In my opinion, Judge Newman’s dissenting opinion reads the term “patented invention” correctly (and consistent with this same term in 35 USC 271(e)) so that 35 USC 271(f) should apply to patented methods, which the Federal Circuit majority now says it does not (overruling the panel holding in Union Carbide). I made the same obvervation Newman did about interpreting this term consistently between 35 USC 271(f) and 35 USC 271(e). Congress also could have (and at some point did) use much narrower language that excluded processes methods, but finally opted for “patented invention.”

    Unfortunately, the Federal Circuit majority opinion in Section C2 comes across as making an argument (including a lame reference to legislative intent) to support the result it desires, possibly because of being trounced by the Supreme Court in Microsoft v. AT&T in interpreting 35 USC 271(f) more generously. If you believe I’m suggesting “judicial politics” had a hand in this decision, you would be right.

  33. Malcolm,

    I think you missed the point. Let’s look at an apparatus claim. If you don’t have a patent on an apparatus in a non-US country you can’t stop them from making or selling the apparatus in the non-US country. You also can’t stop someone from urging them to make that apparatus in the non-US country. However, that doesn’t mean that someone should be allowed to produce the apparatus in the US and then sell it outside the US. The infringer would still be making money off your patented apparatus. If they want to avoid your patent, they should make it outside the US.

    271(f) is to prevent infringers from producing all the components of the infringing device and then simply assembling outside of the US when the only function of those components is to practice the patent.

    Since 271(c) covers “a material or apparatus for use in practicing a patented process” why shouldn’t 271(f) cover components whose only purpose is to be combined in practicing the patented process. Again, if you want to avoid the patent, make the components outside the US.

    271(f) is just covering the actions which occur in the US.

  34. Every time I read “and the jury did x” in patent I cannot help but read it as “and then we turned the whole matter over to a pack of rtards to go ahead and sort the whole matter out and this is what they decided”.

  35. The title says ” … Method Claims Cannot Infringe Section 271(f).”

    How can a claim infringe section 271(f)?

    I think the title should say “… Method Claims Cannot Be Infringed Under Section 271(f).”

  36. “Judge Newman dissented from the opinion – arguing that the language of 271(f) applies to any “patented invention.”

    My head hurts just thinking about what Newman might have written in her dissent.

    Look, if you don’t have a patent on a method in a non-US country, you can’t stop people from practicing the method outside of the US. Likewise, you can’t stop people in the US from urging people outside the US to practice the method in their own countries. Given that, other than an economic handout, what possible justification could there be to prevent people from sending a device to another country to use in a METHOD that isn’t patented in that country?

    Good riddance to Union Carbide.

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