Patently-O Bits and Bytes by Juvan Bonni

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90 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 5

    Every Clearview patent confirms that it is a creepy company with a questionable moral compass.

    1. 5.1

      Every post by you confirms that you are a creepy anti-innovation person with a questionable moral compass.

      I am pretty sure that you do not even grasp the point of this reply.

      1. 5.1.1

        Geez Anon, did you wake up on the wrong side of the bed? Have a little more coffee. Clearview has a deep deep history of being creepy and not caring a lot about consent and I was just making a light-hearted comment when I saw a story about a patent of theirs.

        1. 5.1.1.1

          See – I told you that you would miss the point of the response (having zero to do with Clearview and everything to do with you).

          It’s your own history at point here.

          1. 5.1.1.1.1

            What with the add hummus attacks today, bro?

            1. 5.1.1.1.1.1

              You still miss the point.

              Try looking in the mirror and asking that same question.

            2. 5.1.1.1.1.2

              I always give up posting on internet chat boards for Lent, so starting tomorrow I will have nothing more to say on this thread. One unsolicited word of advice before I go—5.1.1 and 5.1.1.1.1 represent a waste of your time if you are hoping to achieve a meaningful, good faith exchange of views.

              1. 5.1.1.1.1.2.1

                Lol,

                As if Greg “I use my real name” DeLasses ever was about “good faith exchange of views”

                (hint: that would be a firm NO)

              2. 5.1.1.1.1.2.2

                See you on the other side Greg.

                1. One more try…
                  (this time in pieces due to the filter)

                  What exactly do you think that Greg is giving up here, Night Writer?

                  Greg does NOT (as he would suggest) engage in a good faith exchange because Greg only pontificates from his viewpoint and has shown himself impervious to accepting (and integrating) ANY viewpoint other than his own.

                2. He plays the
                  ‘f
                  a
                  l
                  s
                  e
                  umbrage’ card and outright refuses to engage any that would be
                  f
                  o
                  r
                  c
                  e
                  f
                  u
                  l
                  in showing Greg’s duplicity. He fawns over this that already agree with his position (‘politeness’ abounds there – gee, that’s shocking /s). He continues to put the same points to you (in his cheap sheepskin manner), regardless of your attempts to point him to any larger concept.

                3. So what then is he ‘giving up?’ Climbing up on a soapbox, falsely accusing others of the thing that he himself does (that is, NOT engage)?

                  Spare me.

                4. note the two words displayed vertically — do we really need such a PC filter on ‘words’ on a blog?

                  Seriously?

                  These make the “George Carlin” list? It’s too bad George is no longer here, as this would surely be fuel for his fire.

                5. Your game playing has now spread to five different threads with you providing ZERO meaningful content and 100% obsess10n.

                  The latest meme of ‘hall monitor’ only shows that you would rather go to direct ad hominem and do not (can not) contest the accuracy of the content that I provide.

                  You do know that cyber-stalking is an actual thing, right?

                6. “You do know that cyber-stalking is an actual thing, right?”

                  Translation: Waaah !! A. Lincoln being mean to me !! Whaahh !!! $$$$

                7. Waaahh !! A. Lincoln being abscessed with me. Wahhh !!

                  Thankss$$$ more monkey dance $$$

                8. Why are you so bad at spelling? We don’t care about the spelling so long as you do the monkey dance.

                  Monkey, Dance !! More $$$ Please $$$

                9. So, you ask a question and then immediately declare that you don’t care about the question you asked, and then jump into your game-playing…

                  Oh my, the tells that you provide…

                10. Thank you (up for consideration to the other monetization factors is an extra ten bucks for meme theft)

                11. we” get more….?

                  LOL – so now you are “paying yourself,” and counting that as “getting more”…?

                  Oh, so so very train-wrecky

  2. 4

    I cannot find any instances of any of the patents covering any of the approved vaccines (i.e., BioNTech, Moderna, AstraZeneca, SinoVac, or Sputnik) entering either the IN or the ZA national phases. Why would IN or ZA need a suspension of patents related to COVID-19 technology? How will suspensions of patent rights affect either of those countries, when there are no patents to suspend in either jurisdiction?

    1. 4.1

      Greg – You can’t find them because there are none. The only claim of patent infringement that I know if is by a company called Allele. Allele are alleging that Pfizer/BioNtech’s use of a fluorescent polypetide in measuring blood levels of a patent during clinical trials was an infringing use of one of Allele’s patents. So in fact, the infringement issue has been that someone accused the current vaccine manufactures of infringement!! I believe its on the other IP blog.

    2. 4.2

      Interesting fact. Hall Monitor invented the dollar sign [$] but cannot remember the patent number.

      1. 4.2.1

        Y
        A
        W
        N

        another random tangent post from you, with you playing your game of trying to sneak a ‘last word’ about me in a thread area that you have had no prior interaction with.

        And you do it with your false presumption, as clearly I have already deconstructed your “invented” assertion.

        Really Shifty – is this the best that you can do?

  3. 3

    Were our Founders alive today, they would be aghast and ashamed at the ravaging of American innovation that our very own Supreme Court and CAFC have unconstitutionally performed and enabled…

    O.k., let us pause here and consider this assertion. The patent system is not an end in itself. It is a means toward an end—technological innovation. So, what exactly is the objective evidence that technological innovation has decelerated in recent years in America?

    I would be hard pressed to identify any such evidence. The computing power of our smart phones increases at about the same rate now as it did pre-Alice. We get new synthetic polymers now at a faster rate than we did in the 1990s. Our cars get better gas mileage at the same rate as ever. Our channels of data transmission continue to grow carrying capacity without corresponding increase in physical infrastructure.

    The one tech space in which I could identify a slowdown over the previous three decades in the rate of progress is drug discovery. There, however, the slowdown appears much more evidently correlated with NIH and NSF budget cuts than with any particular changes in patent law.

    I wish that the moral of the post-Bilski story—fiddle with patent laws and innovation will suffer—were as clear & tidy as some might wish to make out. Objectively, however, this is mostly just a sort of wishful-thinking story that folks around these parts tell ourselves.

    If you think that I am wrong about this, show your work. What is the technological field in which the rate of progress has slowed post-Alice relative to pre-Alice (or post-AIA relative to pre-AIA)? And what is the evidence by which we can discern this asserted slowdown?

    1. 3.1

      Greg – look at the concentration of power and disruptive innovation.

    2. 3.2

      “Were our Founders alive today, they would be aghast and ashamed at the ravaging of American innovation that our very own Supreme Court and CAFC have unconstitutionally performed and enabled…”

      They’d probably be aghast at women and BIPOC people voting too. So who cares what the “Founders” would think of our country today?

      1. 3.2.1

        AAA JJJ— you seem to be getting grouchier and grouchier as the years go by.

        1. 3.2.1.1

          Lol — but notice his tone bifurcates between patent law issues and any indication that a Liberal Left agenda is somehow improper.

          Here, there be ISMs present (along the lines of “Old White Men.”

        2. 3.2.1.2

          Pot, meet Kettle.

          1. 3.2.1.2.1

            Fact Checkers have weighed in and the analogy has been deemed improper for its racial micro-aggressions.

    3. 3.3

      I don’t think this is true. I think the pace of invention for information processing has definitely slowed. I am not sure how that could be shown but I am certain of it.

      1. 3.3.1

        How are you “certain” of it if you cannot explain how one would show as much?

      2. 3.3.2

        Incidentally, I am not sure that it is really useful to look at just one tech field when assessing the well-functioning of the patent system. I expect that the rate of innovation in buggy whips and horse-drawn carriages has been pretty sluggish for at least a century by now, but it would be strained and silly to lay that at the feet of patent law. Similarly, as I note above, drug discovery is not spinning out new pharmaceuticals as quickly as we used to in previous decades, but the rate seems to correspond less to patent law than to other societal factors.

        The patent laws are meant to incentivize innovation overall, without particular regard to tech field. That is why there is only one patent law for all technologies. Therefore, if innovation overall is proceeding apace, we should conclude that the patent system is functioning well, even if this or that art field stagnates.

        So, what is the objective evidence that technological innovation overall has slowed since Alice and/or the AIA? I just do not see such evidence.

        1. 3.3.2.1

          It is a bigger question than a blog post. I know that the other blog has had some articles on this issue in regards to funding of start-ups.

          Anecdotally, I think people know that they can’t protect anything they do. I think they know that. I don’t see the small inventors anymore with a fire in their belly.

          Plus-frankly–so much of information processing right now has been progressing at a snail’s pace.

          It would be interesting to try and quantify it. I think it could be done and I think it would show a massive slow-down.

          1. 3.3.2.1.1

            Greg’s retort is merely a sheepskin of “STFU.”

            Shutting down any discussion goes along with his own past ham-fisted views on the Tillis 101 implosion (he simply refused to the Trojan Horse for what it was).

          2. 3.3.2.1.2

            NW, I would disagree with you on that issue. Out of my client base, I only have one that is not a small or solo inventor (universities are not counted here because of how it can change based on licensing and other issues). The several solo inventors I work with are all eager to get patent protection, but the critical issue is that they are very educated (by me) as to the pros and cons of the patent system. There are definitely warts in the US patent system that vary based on the technological field, but that can be said about all jurisdictions. They key is for the patent attorney to educate their clients and then develop a strategy that takes advantage of the good and bad aspects of the system. That’s the hard part and requires a ton of work by the attorney, but that has been working well for my clients (and those in other technology fields working with other attorneys at my firm). I’ve watch several small companies make multimillionaires out of their founders when their good ideas pay off (usually by acquisition by a large player in the same field).

            1. 3.3.2.1.2.1

              nice add, Dvan.

            2. 3.3.2.1.2.2

              Good post, Dvan. I don’t have clients in the business of advancing the arts of information processing but what comes to mind is the Talk given, some years ago, to a meeting of the UK Chartered Institute of Patent Attorneys, by a PhD physicist turned venture capitalist.

              He acknowledged the key importance of filed patent applications in the chem/bio space but explained how his firm was not impressed by a portfolio of filed patent applications by a Start Up in the data processing field. his firm’s decision whether to invest in a tech Start Up depended on other factors.

              Memorable is his designation of a patent portfolio for an information processing Start Up as its “comfort blanket”.

              I wonder how virally that assessment by that single physicist turned venture capitalist has spread to other circles, over the intervening years.

              Of course, the appetite to invent in tech is undiminished because the appetite to invest in that field is undiminished. What has diminished, of course, is the number of small entities beating paths to the doors of their local patent law practice, in search of competent patent application drafting services.

              1. 3.3.2.1.2.2.1

                Your insinuation is as insulting and as off as usual.

                Maybe you should stick to only those things that you actually know…

              2. 3.3.2.1.2.2.2

                How often did Facebook–in its early years–sue to enforce patents against rival social media sites? How often–in its early years–did Google? Near as I can tell, the answer in both cases is zero.

                What evidence is there–of any sort–that patents are important to the business growth of small software companies into successful large companies? I suspect that there is no such evidence, because patents really are not that important to making a software business successful. There are such strong first-mover effects in the software industry that patents are just beside-the-point.

                1. And yet, if this were indeed true, you would NOT have seen the massive campaigns against patents for software.

                  The attempt of portraying either or both of FaceBook and Google as necessarily being examples is simply a false application of logic.

                2. Dozens,

                  Typically what the patents do is try to stop a big company from outright copying of what the small company did and to increase the sale price of the same company.

                  I have lots of experience with exactly this sort of thing. I am not sure about google and facebook as both were very odd trajectories. Both relied on the network effect of the more users they had the bigger and better they could become and this primarily what drove them.

                  It would be interesting to see if there was enforcement efforts on the google algorithm for ranking search results and if facebook tried to enforce its key feature of excluding some from viewing your pages.

                  It would also be interesting to see if myspace tried to enforce any patents against facebook.

                3. I am not sure about google and facebook as both were very odd trajectories.

                  Sure, I am perfectly prepared to believe that Google and Facebook are not representative examples. I picked them merely because they are easy to remember recent examples of financially successful software businesses. Neither really seems to have relied on patents in order to reach their present levels of success.

                  If you have other examples in mind of financially successful software businesses for which patents were important to their success, I am “all ears” (as they say). Which software businesses have you in mind that demonstrate the importance of patents for business success in the software industry?

                4. Maybe look at the top filers in software patents (or patents generally).

                  Or perhaps better yet – just look at the competitors of those who fight so very hard against software patents.

          3. 3.3.2.1.3

            Plus-frankly–so much of information processing right now has been progressing at a snail’s pace.

            Not to make a pest of myself, repeating this same point over and over, but how do we know this? What are the metrics by which you assess the progress of the information processing arts? Have those metrics changed appreciable pre- and post-Alice (or pre- and post-AIA)?

            Just to pull a random statistic into the conversation, I notice that in 2013 (the year before Alice), there were ~877K apps available for download on the Apple app store. By 2014 (the year of Alice) there were ~1.18 million, for a year-over-year increase of ~303K. By comparison, in 2015 (the year after Alice) there were ~1.8 million, for a year-over-year increase of ~620K. In other words, the rate of increase actually accelerated the year after Alice relative to the year before.

            Last year saw a year-over-year increase of ~410K, while 2019 saw a year-over-year increase from 2018 of ~700K. In other words, the rate of increase bounces around from year to year. Some years it is higher and some lower. All in all, the rate of increase is roughly steady six years either side of Alice or the AIA.

            It is hard to detect much evidence of either a speed-up or a slow-down in the rate of technological progress in “information processing” (as measured by apps) that correlates with any recent major event in U.S. patent law. To be fair, there are many other ways of measuring improvement in “information processing.” Can you point to a meaningful measure in which we see a slow-down that correlates to some notable event in U.S. patent law?

            1. 3.3.2.1.3.1

              I don’t think it correlates with, or is caused by patent law, but it certainly feels like information processing with regards to consumer applications has slowed down. What I don’t understand is why that is not entirely expected and natural. At some point, the low hanging fruit of the tree of cheap networked devices will have been plucked. No patent system can prevent that.

              1. 3.3.2.1.3.1.1

                What—in particular—“feels like” it is slowing? What metrics inform this impression?

                I take your point that the mere existence of slowing progress does not necessarily vindicate a claim about a defect in the patent system, but I would like to nail down the existence of this putative slowdown first. How do we know whether progress in information processing is slowing or not?

              2. 3.3.2.1.3.1.2

                . What I don’t understand is why that is not entirely expected and natural.

                Because innovation is NOT a ‘low hanging fruit’ thing, and in the opposite manner, has augmentation effects on innovation.

                That’s kind of why we have patents in the first place.

                That you of all people, an examiner, do not immediately grasp this, well, color me shocked. /S

  4. 2

    Professor Contreras, I would be happy to do an interview to explain what happens in the real world, and can introduce you to a hundreds of others. I can show you the filings and invoices and budgets as well. I realize such details are imperceptible from the great height of your ivory tower.

    1. 2.1

      I read the abstract. Probably paid to write this article, you know.

      And, the problem really is that almost all the damage to the patent system has come from the Scotus and the AIA.

      There is no way under the current political system we have that we are getting to get improvement.

      The Ds are in the pocket of SV. What we can expect is probably about a 50% weakening of patents during the next four years. From recent cases, it looks like the CAFC is going hog wild in invalidating everything using Alice. As long as that continues there is –in fact–no patent system in the USA.

      1. 2.1.1

        As compared to what % of strengthening of patents in the past four years?

        1. 2.1.1.1

          Paul, if you go by the price of patents, then we have a company come in and estimate values of patents and portfolios.

          Patents went up in value maybe 10-20 percent over the last four years. They had dropped in value by 80 percent from the AIA and Alice.

          I’d guess we are going to see the near destruction of the patent system if Biden stays in office for 8 years. They will get stronger trade secret laws passed and companies will go to a system of hiding inventions. And worse a system of proprietary software to lock in tech people.

          The USPTO is doing what third-world countries do. As the value of a patent drops what companies are willing to pay for a patent drops.

          Anyway, no time for a complete answer.

          1. 2.1.1.1.1

            And the USPTO is raising maintenance and prosecution fees. It will become a death spiral. We will see the complete end of patents if they manage to sever pharma patents out in some way. I know the CAFC has been trying to figure out how to do that with their law making authority they believe they have.

            1. 2.1.1.1.1.1

              We are lucky that the judges of the CAFC are such hacks that they can’t figure out how to sever pharma. Probably because their minds are cloudy by their judicial activism.

    2. 2.2

      “your ivory tower”

      Hmmm . . . and here I thought the U.S. and other enlightened societies . . . had banned ivory . . .

      Anyone know if any of these ivory-tower elites have — or have ever attempted to — obtain even one patent?

      Even one?

      Paychecks for pontificating.

      Like those Earl Scheib car-painting commercials used to shout:

      “You can’t beat that!”

  5. 1

    Some readers here will not be happy with the article here, by a conservative, entitled “Efficient Infringement and the Rule of Law.” From the Summary: “Reasonable people can differ over optimal patent scope and policy. Likewise, the PTO and the PTAB can issue and uphold more or fewer patents, and the courts can interpret the Patent Act in ways that we like or dislike. Reasonable people can also seek change through litigation, legislation and administrative channels. All of these mechanisms are organic parts of our tripartite system of government. We will never have a situation in which all partisan interests are equally happy with the rules or the outcome of every case – this is part and parcel of an adversarial legal system. But this is no reason to question the legitimacy of the system itself. So, far from a departure from the rule of law, what we see today in the patent system is the operation of a well-functioning legal regime seeking to address the interests of competing, but largely law-abiding, stakeholders.”

    1. 1.1

      Conservative….?

      Most odd choice of description.

      1. 1.1.1

        “Most odd choice?” Some would say Mr. Morgan’s description was overly kind. The paper was presented at the recent convention of the uber-reactionary Federalist Society, wasn’t it ….

        1. 1.1.1.1

          Uber-reactionary….?

          1. 1.1.1.1.1

            “Uber-reactionary”

            You know; those who are not at all happy (for one reason or another) with . . . Uber.

        2. 1.1.1.2

          Cass,

          You would do well to not stop at where the paper was presented, but look (at least) at the bare surface of who was presenting, the baggage that accompanies that person, and the message that that person was trying to shape.

    2. 1.2

      Some readers here will not be happy with the article here, by a conservative, entitled “Efficient Infringement and the Rule of Law.”
      I read the “article” — although I would hardly qualify this exceptionally-short, conclusory-assertion-riddled piece as an article.

      It mostly parroted the same tripe trotted out by the Silicon Valley crowd for many years now (including a couple citations to Mark Lemley). The key takeaways from the article:
      i) PAEs/patent trolls are asserting bad patents
      ii) because so many many are being invalidated, an infringing company can assume that the patent is likely invalid
      iii) the patents are bad because they are being asserted by patent trolls (because those are the patents that patent trolls obtain)
      iv) these patents are bad because they are “broad,” “do not even describe how a particular technology works,” and only claim an “end function.”
      v) “PTAB takes a more skeptical view of patent claims than the PTO’s examiner corps, which is compensated based on the number of applications processed rather than the quality of its output”

      In short, you have bad actors generating bad lawsuits that assert bad patents with bad claims issued by bad examiners, and the wholly reasonable PTAB is holding the line against this deluge. I would be embarrassed to have my name associated with this piece of ‘scholarship.’

      This article does not address (or even recognize) the real criticisms that have led to the current practice of efficient infringement. These include (but certainly are not are not limited to) the following:
      i) an ever-increasing number of Federal Circuit decisions have made wide swaths of technology patent ineligible under 35 USC 101
      ii) these are a great many Federal Circuit decisions are internally inconsistent and so patent eligibility rests on the particular panel and not the particular law
      iii) the PTAB is a killing field of patents — not just of PAEs/patent trolls but for operating companies as well
      iv) no small company can reasonably assert a patent against a large company for reasons i) and iii) and the fact that if an infringer loses at the PTAB, there is little stopping the small company from being taken back to the PTAB again and again (while racking up hundreds of thousands of legal bills in each instance) until the small company eventually loses.

      The currently patent was designed for large companies like Google, Facebook, Apple, etc. They can, at the same time, acquire a large portfolio of patents and also invalidate the patents of their smaller competitors. However, the smaller competitor have little hope of successfully fighting off either the market power or patent portfolios of the larger corporations. The US Patent System is truly the sport of kings.

      10 years ago, the most interesting decisions coming out of the Federal Circuit involved what was obvious under 35 USC 101 or how to properly calculate damages. These days, damages are rarely a concern because patent trials rarely make it that far anymore. When was the last time a small operating company had a significant judgment against a larger company affirmed at the Federal Circuit? When was the last time the Federal Circuit affirmed a judgement that an inventor was entitled to exclusive rights to his/her invention?

      Efficient infringement is alive and well because nobody outside of large corporations with large patent portfolios has any reasonable chance of enforcing their own patents.

      1. 1.2.1

        +1

        Billion

      2. 1.2.2

        “i) an ever-increasing number of Federal Circuit decisions have made wide swaths of technology patent ineligible under 35 USC 101”

        Caring about the reaction to bad patents while not caring about the bad patents is not a reasonable position.

        1. 1.2.2.1

          You absolutely miss the point with the assumption of “bad” which is nothing more than the idea that certain innovation should not be protected by patents.

          Quite apart from the actual words of the statute.

      3. 1.2.3

        Big +1 Wandering.

        “The US Patent System is truly the sport of kings.”

        The US Patent System is truly the sport of . . . billionaire and trillionaire kings.

        Were our Founders alive today, they would be aghast and ashamed at the ravaging of American innovation that our very own Supreme Court and CAFC have unconstitutionally performed and enabled; and that Congress has refused to fix.

        Aghast and ashamed.

        1. 1.2.3.1

          “Were our Founders alive today, they would be aghast and ashamed at the ravaging of American innovation that our very own Supreme Court”

          They’d die from shock after learning about the “muh abortion rights”, “muh gay marriage”, “muh right to have school paid for for my kids as an illegal immigrant by the citizens”, “muh x y z nonsense to come out of scotus” long before they cared much about the patent system, esp if they saw the nums going through it.

          1. 1.2.3.1.1

            Are there other problems?

            Sure, without a doubt.

            That being said, this forum is a specific one to patent law.

            Are you really surprised that an emphasis ON patents is what you see here?

            (not just you, but Greg “I use my real name so people can see that I am a shill for Pharma” DeLassus as well)

        2. 1.2.3.2

          Counterpoint: Who the f cares what a bunch old dead men think about anything? Plus, at the time of the founding, the US was very much an IP consuming state rather than an IP producing states. If we want to return to the wisdom of the founders, let’s make patent term 14 years.

          1. 1.2.3.2.1

            Counterpoint: Who the f cares what a bunch old dead men think about anything?

            Seeing as that is the basis of all law in this country, I would hope that you would easily see that the answer is that everyone should.

            You are always free to leave this country if your feelings are so out of sync that you feel harmed.

            1. 1.2.3.2.1.1

              If the dead wanted a voice in our government, they should have not died. Dead hand control of anything, including our politics, is terrible. Our strange reverence for them is a disease. It’s our Constitution, not theirs.

              And, I am please to see that you are in favor of quite liberal immigration policies that let people move to different countries of basically any reason at all.

              1. 1.2.3.2.1.1.1

                You have no basis or understanding of law, do you?

                The fact that it is “our” Constitution does not eliminate the Founding Fa thers from ANY consideration of “our” Constitution.

                Did you even have civic in grade school or high school?

                And you got the exit point (your exit) wrong, of course.

                The point was analogous to “Don’t let the door hit you on your way out.”

          2. 1.2.3.2.2

            “Who the f cares what a bunch old dead men think about anything?”

            Evil whiteoids known in the art as ‘Mericans of the white skin tribe.

            See for example:

            “Seeing as that is the basis of all law in this country, I would hope that you would easily see that the answer is that everyone should.”

            ^And evil whiteoid thinking that noble black and or brown people should care one whit about what old dead white dudes that oppressed (and/or outright enslaved/de-personed) them.

            “If the dead wanted a voice in our government, they should have not died.”

            To be fair, they did leave us some records.

            “It’s our Constitution, not theirs.”

            I’m not so sure about that. Truthfully it’s still more their constitution than it is ours, it’s barely even been amended in my lifetime, much less re-written.

            1. 1.2.3.2.2.1

              6,

              You have no basis for presuming my race.

              1. 1.2.3.2.2.1.1

                You said you were an evil whiteoid (and obv I’ve seen your pics), did you go transracial? You have to make the announcement or it doesn’t count bro.

                1. Lol, I have never provided any indication of my race, and I highly doubt that you would be able to identify me (as me listing here) if you were shown my picture.

                  Not sure about the “transracial” thing, or if I were to indulge in the lark of intersectionality, if a label exists for the choice I would make.

                  Bottom line here is that the values I identify with are raceLESS.

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