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07.16.17

From East to West and Even Down South at the Eastern District of Texas Patent Trolls Are Losing Everything

Posted in America, Patents at 6:35 pm by Dr. Roy Schestowitz

Related: The Gradual Fall If Not Sudden Collapse of Patent Trolls Associated With Microsoft

Texas sign

Summary: Patent trolls that are accustomed to friendly judges, typically in the Eastern District of Texas, will be circling down the drain if the trend of “fee award” (to the vindicated defendant) continues

THE USPTO (plus courts) repels/drives away trolls while the EPO attracts/welcomes them. Such is the nature of the patent systems in 2017 and the difference seems to be getting more extreme as the EPO lobbies for UPC (trolls-friendly) whereas SCOTUS rules against patent trolls, e.g. TC Heartland regarding forum shopping at the Eastern District of Texas.

“Shipping & Transit LLC is not a new patent troll. Like many other trolls, it merely rebranded itself after plenty of negative publicity…”Well, earlier today we wrote about Shipping & Transit LLC and various other patent trolls. We would like to show that this new litigation terrain (or trolling dynamic which deters trolls) is exacerbating nationwide.

California

Shipping & Transit LLC is not a new patent troll. Like many other trolls, it merely rebranded itself after plenty of negative publicity; we wrote about it when it was known as Arrivalstar as this had gone on for years. Not only is this troll doomed in courts; some courts are forcing the troll to pay its victims. As the EFF put it last week (we somehow overlooked this announcement):

Shipping & Transit LLC, formerly known as Arrivalstar, is one of the most prolific patent trolls ever. It has filed more than 500 lawsuits alleging patent infringement. Despite having filed so many cases, it has never had a court rule on the validity of its patents. In recent years, Shipping & Transit’s usual practice is to dismiss its claims as soon as a defendant spends resources to fight back. A district court in California issued an order (PDF) this week ordering Shipping & Transit to pay a defendant’s attorney’s fees. The court found that Shipping & Transit has engaged in a pattern of “exploitative litigation.”

Shipping & Transit owns a number of patents that relate to vehicle tracking. We’ve written about its patent trolling on numerous occasions. In many cases, Shipping & Transit asserted its patents against businesses that simply sent email to customers with a tracking number. In other cases, it has sued municipal transport agencies and logistics companies.

Eastern District of Texas

“Gilstrap was mentioned here and elsewhere many times before. He is a big part of the problem because he presided over many of these cases.”The situation is similar in the Eastern District of Texas (EDTX), which in May suffered the blow known as TC Heartland. The region will no longer attract quite so many trolls and lawyers, who typically attacked companies that aren’t based in the Eastern District of Texas. Remember Rothschild Connected Devices Innovations LLC (RCDI)? There were many articles about it last month (we wrote about it earlier this month, exactly a week ago) and this from the EFF we also overlooked (published shortly after we had returned from holiday). The EFF takes note of the “patent-friendly Eastern District of Texas” and notes that there is a “fee award”, i.e. just like the above, the “notorious patent troll practicing this model [is] to pay the defendant’s attorney’s fees.” This ought to discourage trolling.

Patent litigation abuse thrives when patent trolls can force defendants into making a hard choice: pay the troll (even though the claim is absurd) or pay even more to your lawyers. This week, the Federal Circuit issued an encouraging ruling that will make it harder to use this gambit. Overturning a contrary decision by the patent-friendly Eastern District of Texas, the appellate court required a notorious patent troll practicing this model to pay the defendant’s attorney’s fees. The lower court had given the troll a pass because it dismissed its case early (which would give impunity to any troll that runs away when the defendant fights back). This week’s decision is an important win for victims of abusive litigation.

Meanwhile, the patent microcosm (litigator) is up in arms over reasonable responses. “My record on NPE’s speaks for itself,” Rachel wrote, “but I find Issa’s language choice and singling out of a federal judge to be utterly unacceptable…”

Why? Gilstrap was mentioned here and elsewhere many times before. He is a big part of the problem because he presided over many of these cases. Here is what was actually said:

Yesterday, the House IP Subcommittee on the Courts, Intellectual Property and the Internet conducted a hearing entitled: The Impact of Bad Patents on American Businesses. During the hearing, Chairman Darrell Issa (R-Calif.) and House Judiciary Committee Chairman Bob Goodlatte (R-Va.) did not mince words expressing their displeasure with the EDTX’s handling of the Supreme Court’s recent decision in TC Heartland.

At the opening of the hearing, Chairman Issa explained that Judge Gilstrap’s interpretation of TC Heartland “rejects the Supreme Court’s unanimous decision” and is “an act I find reprehensible.” It only got worse from there.

Chairman Issa explained that Judge Gilstrap may be more interested in serving the surrounding hotels and law firms, but that his recent decision outlining his TC Heartland analysis “does not serve justice” (ouch). Then, Chairman Issa finished up with: “it is not common for a member of Congress to call out an individual judge or a district, but after a long period of enrichment of a community by judges who consider that community’s well being as part of their goal, I can reach no other conclusion…”

Indeed. They just said the truth. Bluntly. What’s wrong with that? More politicians like that are needed.

“Another politician, Eric Lesser, has also decided to tackle patent trolls, even in the East Coast.”

Massachusetts

Another politician, Eric Lesser, has also decided to tackle patent trolls, even in the East Coast. There was this news article about it on Friday: [via Tom Hochstatter‏]

When the internet security company Cloudflare decided to engage in all-out war with what it views as a “dangerous new breed of patent troll,” it found a receptive audience with Eric Lesser, who became the youngest state senator in Massachusetts when elected to office in 2014.

Senator Lesser, now a 32-year-old in his second two-year-term, was in the same Harvard fraternity as Facebook CEO Mark Zuckerberg, but says he didn’t really think much about tech until after working on President Obama’s first presidential election campaign in 2007. “I was traveling around with him and carrying suitcases and handling logistics for his traveling team,” he explains.

When the campaign was over, he joined then-senior advisor David Axelrod at the White House as a special assistant; he also became involved with the Council of Economic Advisors and more specifically with the agency’s chairman at the time, economist Austan Goolsbee. “That’s really when I started to get exposure to a lot of tech policy and some of the issues,” he says.

We are glad to see the political system, not just a bunch of large corporations, organising themselves against patent trolls. This will almost certainly assure the destruction of patent trolls, e.g. by taking away their lifeline with imposition of penalties (like defendants’ legal fees).

“They will need to change career (if they can) and stop harassing people who actually make things.”Expect patent trolls and their facilitators to get very, very angry and verbally aggressive, as we noted in our previous post. They will need to change career (if they can) and stop harassing people who actually make things.

Those Who Endlessly Attacked Michelle Lee Now Attack Supporters of PTAB, Not Just PTAB

Posted in America, Patents at 5:52 pm by Dr. Roy Schestowitz

Paul Morinville sickened
Paul Morinville on Google
Everyone who does not agree is “Google” [1, 2]

Summary: Watchtroll, which combats patent progress by character assassination of instrumental figures, continues in its warpath today

THIS didn’t take long. Today (this afternoon to be precise) we wrote about the push to defend PTAB, courtesy of HTIA and others. Later in the day, even on a Sunday, Watchtroll began attacking HTIA, dubbing it “efficient infringer lobby” (the usual derogatory term for patent sanity).

“So what Watchtroll argues is, being against patent trolls is “anti-patent”.”We have documented nearly a dozen attacks on Michelle Lee from the trolls-loving, Trump-like blowhards who write for Watchtroll. They may have played a role in driving her out of the USPTO while sites like IAM promoted horrifying replacements too.

Steve Brachmann, Gene’s henchman (writer, not a technical person), says: “We can probably expect more of the same anti-patent “patent troll” rhetoric from the HTIA given that its members have so fervently worked on behalf of the efficient infringer lobby in recent years. There are already blog posts online touting the group’s nascent efforts in the fight against patent trolls.”

“What a miserable lobby for patent trolls and bullies…”So what Watchtroll argues is, being against patent trolls is “anti-patent”. Remember when they called EFF “a leftist anti-patent activist coalition”? Or all those attacks on judges whom Watchtroll refused to accept (for their judgments)?

Watch the above article in the comments, where anonymous bullies are already adding the usual attacks on Michelle Lee. Is this site just supported by the likes of IBM or also funded by them? What a miserable lobby for patent trolls and bullies…

In the Face of Malicious Lobbying, High Tech Inventors Alliance (HTIA) and Computer and Communications Industry Association (CCIA) Protect PTAB

Posted in America, Patents at 1:33 pm by Dr. Roy Schestowitz

We too want — and need — to protect PTAB

High Tech Inventors Alliance members

Summary: A new push by the patent microcosm to eliminate PTAB and marginalise Section 101 (which helps suppress software patents) is quickly met with opposition from concerned politicians and groups that represent actual technology companies

OUR USPTO coverage is somewhat behind in the sense that less important stories we shelve until more information becomes available. We have been watching for a while the lobby against PTAB. It’s more or less clear who’s behind it and we wrote about it earlier this summer.

“The term “PTAB” (or “IPR”) typically means “your patent is about to be thrown away…””“PTAB” has become a very scary word to trolls, patent maximalists and the likes of them.

The term “PTAB” (or “IPR”) typically means “your patent is about to be thrown away…”

They know it. They shudder.

“On remand,” said a PTAB opponent the other day, “the PTAB will need to reevaluate the scope of the claims and then determine whether the recited prior art discloses the requisite particulars.”

“…the patent microcosm, Watchtroll in particular, would have us believe that PTAB deems about 90% of all US patents invalid.”PTAB is seemingly everywhere these days! It deals with more patents than courts do. It definitely invalidates a lot of patents and Watchtroll’s “swamp” now actively engages in active smears or activism against PTAB. The tone of their messages in Twitter, for example, is truly despicable. Watching the responses to them from software patents opponents (FFII, Red Hat etc.) is worthwhile, but we don’t wish to link to that. It would just “feed the trolls”, as the old saying goes (where the term “troll” refers not necessarily to Internet trolls but potentially to patent trolls).

As one can imagine, IAM is into that too. Patent maximalist and IAM ‘lobbyist’ Richard Lloyd (pro-patent trolls, overtly pro-software patents) hates recent SCOTUS decisions and rants about them in public, saying (in the headline) that these “could severely harm American businesses” when the very opposite is patently true. IAM, in this particular case, is just copy-pasting Shaked & Co, a legal firm rather than a firm that actually makes something. Such great ‘reporting’ by IAM… more like the usual lobbying.

“PTAB does not always eliminate patents; it just looks into the ones that are among the worst or are actively being used to unjustifiably sue companies.”Putting aside all those rants from the patent microcosm, what we find in progressive sites are articles like this one from 6 days ago. It correctly states that “if the PTAB is invalidating a lot of patents, it seems to be because there are a lot of invalid patents being granted and challenged.”

Exactly. But the patent microcosm, Watchtroll in particular, would have us believe that PTAB deems about 90% of all US patents invalid. Outrage over a bogus ‘scandal’?

Here is more context:

Now, these months were selected because they had particularly high rates of PTAB judges changing their mind. In other months, the numbers are different, and generally more claims are cancelled. But this fact suggests that, contrary to the rhetoric, PTAB judges are perfectly happy to find a patent valid—if it’s actually novel and non-obvious. It’s only when a patent is invalid that it gets cancelled.

In other words: if the PTAB is invalidating a lot of patents, it seems to be because there are a lot of invalid patents being granted and challenged.

PTAB does not always eliminate patents; it just looks into the ones that are among the worst or are actively being used to unjustifiably sue companies. See this new press release that says: “Last Thursday, the Patent Trial and Appeal Board (“PTAB”) denied Ford Motor Company’s (“Ford”) attempt to have six of Versata Software, Inc.’s (“Versata”) patents reviewed for legitimacy—cementing their significance in revolutionizing the automotive industry. To date, Ford has sought nearly 30 challenges to the underlying patents of Versata’s software, all of which have been dismissed by the U.S. Patent and Trademark Office (“PTO”).”

“…PTAB has been good at applying Alice to patents which were granted before Alice (2014), thereby removing threats to innocent software companies or companies that merely use software.”So sometimes PTAB proves that it’s not hostile towards every patent (even a questionable or questioned patent). PTAB is just doing its job, which is similar to the job of the appeal boards in Europe. PTAB is a valuable tool that helps assure patent quality. Patent offices are notorious for granting lots of patents for financial gain or goals. So PTAB acts as somewhat of a safeguard.

As we noted here before, PTAB has been good at applying Alice to patents which were granted before Alice (2014), thereby removing threats to innocent software companies or companies that merely use software.

Watch this article titled “Betting on Facial Recognition Breakthrough, Advanced Discovery Patents AI Software” (published about a week ago also in Law.com). Since this is my domain, it is clear to me that it’s all about software patents. All of it! These are pure mathematics so even if granted, such patents would likely be deemed invalid by a court or PTAB (the latter is cheaper). Now that Alice repeatedly prevails (the lobbyists won’t manage to squash it) we need someone to apply the test and squash patents before they reach the courts (necessitating legal bills).

“Now that Alice repeatedly prevails (the lobbyists won’t manage to squash it) we need someone to apply the test and squash patents before they reach the courts (necessitating legal bills).”There are of course those so-called ‘bills’ which bill themselves as "STRONGER Patents", but they actually strive to accomplish the very opposite (allowing shallow patents, not high-quality patents). “The chances of that bill being passed are remote,” IAM admitted the other day, having subtly promoted this anti-PTAB bill. To quote:

Half of the group’s members (Adobe, Cisco, Google and Salesforce) also belong to United for Patent Reform, the group of big tech, retail and other businesses which was set up in 2015 to seek broad-based reform of the US patent system. Two others, Dell and Oracle, were originally part of the group but are no longer listed as members.

[...]

He pointed out that the USPTO and the courts continue to confront some of the most pressing issues facing the patent system, including possible changes to IPRs. The Supreme Court is set to address the constitutionality of the review process later this year in the Oil States Energy Services case, while pressure is growing on the USPTO from some sectors to lessen the impact of the Patent Trial and Appeal Board (PTAB) – something that the SCOTUS decision in Cuozzo made clear the next permanent director of the agency would have the power to do.

[...]

The focus, however, increasingly appears to be in areas such as reform of patent eligible subject matter or changes to IPRs that the HTIA member companies oppose. The STRONGER Patents Act, which was recently introduced in the Senate, proposes a series of measures that are largely unpalatable to big tech. The chances of that bill being passed are remote, but it does draw attention to possible reforms that have largely been ignored by other proposed legislation.

That reference to the High Tech Inventors Alliance (HTIA) is important. The group says in its Web site (announcement on Friday) that “[l]ow-quality patents harm our patent system and stifle innovation, economic growth and American jobs” [via] and here are the politicians who support it:

The High Tech Inventors Alliance (HTIA) applauds Chairman Bob Goodlatte for focusing on how low-quality patents harm our patent system and stifle innovation, economic growth and American jobs.

HTIA was formed so that our member companies have a strong voice when advocating for a healthy patent system. Our companies represent a big slice of the innovative world. They employ 447K employees, including many of the world’s best computer scientists and engineers. Their contributions in technology and commerce have transformed society in countless ways. They spent $63B on R&D last year, they hold 115K U.S. patents, and they have a collective market cap exceeding $1.75 trillion.

In 2011, the America Invents Act created the Inter Partes Review (IPR) program, which has effectively helped to weed out bad patents from the system in a very cost effective manner. IPR strengthens the U.S. patent system by improving patent quality. It is a key reason that patent troll litigation dropped in 2016 compared to 2015. With this track record, diluting IPR at this time is both unnecessary and unwise.

Josh Landau, writing for another pseudo-progressive group which is run by the Computer and Communications Industry Association (CCIA), stated that “the Computer and Communications Industry Association submitted comments on America Invents Act (AIA) trial procedures in response to the PTO’s ongoing request for such feedback, most recently at the PTAB Judicial Conference in June.”

This too was published on Friday (same day as the above from HTIA). These groups do share an interest with us as they too wish to protect both Alice and PTAB.

There is nothing bipartisan about the so-called “STRONGER [sic] Patents” Act. Watch it go nowhere very fast!

Weakening of Patents Assigned to Google and Another New Patent Lawsuit Against Uber

Posted in America, Google, Patents at 12:32 pm by Dr. Roy Schestowitz

Uber reader

Summary: Project Loon patent canceled, Google’s lawsuit against Uber gets ‘diluted’ by 75%, and Uber faces a new lawsuit in the Eastern District of Texas (capital of patent trolls)

THE USPTO remains full of bogus patents. In other words, many of its patents — once properly scrutinised — would be found/deemed invalid. PTAB, which we’ll write about later, is only one data point showing so.

Several days ago we stumbled upon this report titled “Space Data strikes win in getting key Project Loon patent canceled” and it said the following: “The legal war between tiny company Space Data and Alphabet’s moonshot X subsidiary, previously Google X, continues as the U.S. Patent and Trademark Office (USPTO) reportedly agreed to cancel most of one of Project Loon’s foundational patents.”

Very good.

As usual, patent maximalists continue to hate Google and blame it for devaluations of patents (see yesterday’s post from Dennis Crouch and the comments on it, not to mention all the abuse against Michelle Lee because she worked for Google for a few years).

The matter of fact is, whenever bogus patents get invalidated we should be happy. It brings more to the Commons.

Suffice to say, patent lawyers see it differently. They’re greedy (at risk of over-generalising) and patent maximalism is their ‘religion’. Some dubbed it “patentism” — for it defies logic and reason.

Several months ago, Google/Alphabet sued a company using patents, but things have cooled down since then. Google ought to drop the lawsuit altogether. If Google does decide to take it a step further by dropping the lawsuit altogether, how would the patent maximalists react? Would they again get angry and blame Google for all the supposed ‘ills’ (actually blessings, such as AIA and PTAB)?

There’s this newer report on this case which says “WAYMO, Google’s self-driving car division, has dropped three of its four patent claims against Uber.

“The crux of Waymo’s original lawsuit revolved around Uber’s use of LiDAR (light radar, the means by which self-driving cars ‘see’ their surroundings), which it claimed was stolen by ex-Googler Anthony Levandowski. Uber fired Levandowski in May.”

“Alphabet CEO Larry Page will be deposed,” according to another report, so one might expect the outcome to take months to arrive (unless there’s a settlement).

Speaking of Uber and patents, there is this new lawsuit, again in the Eastern District of Texas and again involving a software patent:

Transportation company Uber has been sued over its use of location-based technologies in its app.

The complaint was filed by Fall Line Patents at the US District Court for the Eastern District of Texas, Tyler Division on Monday, July 10.

It relates to US patent number 9,454,748, which covers software that collects location-specific data and is compatible with all devices, eliminating the need to create new software for every device.

It will be interesting to see if 1) the lawsuit can be shifted to another jurisdiction (i.e. out of Texas) and 2) Uber can invalidate the patent using Alice (or similar). We’ll keep an eye on it.

After the ‘Fall’ of Texas, Patent Trolls Struggle and Some Are on the Retreat

Posted in America, Patents at 11:37 am by Dr. Roy Schestowitz

Texas flag
Shifting dynamics after TC Heartland (2017) and Alice (2014)

Summary: Things are getting out of hand for patent trolls, which find themselves on the defensive (from challenges to all their patents) and try to escape the cases they started in order to dodge paying fees (to no avail)

THE terrain is getting worse for US patent trolls. Fewer of them can sue in Texas (in fewer of potential cases), the invalidation rates are high, and the patents they typically use (software patents) lack substance.

Nevertheless, patent trolls remain a major problem in the US. Regarding the recent Blackbird case, which we covered last week, one person told them “what you’re doing is unethical, is detrimental to technology innovation, and amounts to extortion…”

“Over 60% of defendants in patent troll litigation are small businesses without resources to defend themselves,” said United for Patent Reform around the same time. “Because of low-quality patents,” it added, “our patent system “has become a minefield of lawsuits.””

This was part of a series of tweets that strive to guard Alice and PTAB — something we have been doing for years. Another tweet said: “Congress needs to protect #Alice & #IPR “so #smallbiz are protected from abuse of the very worst #patents by trolls””

Julie Samuels, whom we mentioned here before, said: “Our patent system is headed in the right direction, but Congress must continue to examine patent quality issues…”

Yes, the USPTO and especially US courts have contributed to an improvement in patent quality. Another pro-reform site, Patent Progress, said this four days ago:

Tomorrow morning, the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet is holding a hearing on “The Impact of Bad Patents on American Businesses.”

The impact of bad patents is a topic worth taking some time to examine, because it isn’t just about the direct impact from abusive troll litigation—bad patents cause a lot of harm even if they’re never asserted.

I’m going to start out with a definition. There are good patents out there. They’re not what we’re talking about. We’re talking about “bad patents.” You know.

We intend to deal separately with the political angle as there are companies like Microsoft pulling strings behind the scenes and we want to properly show this to readers. We need to name and shame those who strive to make the patent system chaotic again.

Suffice to say, extinction of software patents would contribute towards extinction of patent trolls and companies that depend solely (or mostly) on patents rather than products.

Gilstrap

We don’t typically name or shame judges, but Gilstrap is the exception because the media names him a lot. Single-handedly (almost) this man impeded the extinction of software patents (he doesn’t seem to care much for Alice) and harboured an enormous number of patent trolls in Texas. Whenever we write about him we mention the pattern of his rulings. IAM, a site for patent trolls, might admire the man, but the damage he caused to actual US businesses can be measured at billions. Finally realising that Gilstrap is the trolls’ facilitator and a software patents proponent, some politicians finally name and shame him too. What would IAM do about it? Well, IAM being IAM: [via]

Patent policy has not been in the US Congress’s spotlight much of late. True, the STRONGER Patents Act was introduced in the Senate last month, but few expect that bill to get much traction and it’s a far cry from the period between 2013 and 2015 when there was a flurry of new bills. With last year’s election and the controversies of the first months of the current administration keeping legislators busy, patent reform has slipped down the agenda.

But it was back in focus yesterday as the subcommittee on courts, IP and the internet, which is a part of the House of Representatives’ Judiciary Committee, held a hearing on “the impact of bad patents on American businesses”.

These committee get-togethers can be fairly dull affairs that don’t generate much news. However, there were a couple of interesting elements to yesterday’s hearing which are worth covering.

First up there is clearly controversy brewing over a recent decision from Judge Gilstrap in the Eastern District of Texas, which was highlighted by subcommittee chairman Darrell Issa in his opening comments. The ruling concerns venue, a hot topic in US patent circles at the moment thanks to the Supreme Court’s recent ruling in TC Heartland which placed stricter limits on where patent owners can file infringement lawsuits.

In a ruling earlier this week in a case between Raytheon and Cray Inc, Gilstrap revealed a four stage test to determine whether a defendant has “a regular and established place of business” in East Texas and can therefore be sued there. That is the part of the statute concerning venue that is still open to interpretation following TC Heartland and which has led some to insist that more still needs to be done to reform venue laws. You can see a nice summary of the decision here.

No doubt, as always, the proponents of patent trolls will defend Gilstrap, but who does that really help?

Bikes

The above link came from Benjamin Henrion. Bike enthusiast that he is, Henrion also took note of this new interview which included this nugget of information: “Turner abandoned the Horst-Link suspension system that he founded his brand with to avoid being harassed by patent holders. His choice to go with Dave Weagle’s DW-Link would prove to be the better decision.”

Who benefits? Certainly not cyclists.

This isn’t about software, but it certainly shows how products are made worse — not better — by some patents. The EPO recently bragged about EPs on bicycles, but this above-mentioned tale isn’t the kind of story it wants told. WIPR even produced an EPO puff piece to that effect.

Moving on to software, here’s the latest…

Cloudflare

Cloudflare is no friend of mine (in fact, many of their staff would refuse to speak to me because of my criticism of their company). I need to technically grapple with Cloudflare due to some of our clients who insist on using Cloudflare, but I don’t like Cloudflare and I repeatedly warn people, urging them to avoid Cloudflare both as site visitors and as Webmasters. Censorship, surveillance and lock-in are just some among the many dangers posed by Cloudflare.

Nevertheless, despite my disdain for Cloudflare, I wrote several positive posts about Cloudflare earlier this summer. The company does a good job on the patent front; it is going after the software patents of a patent troll rather than simply pay to settle. 5 days ago AOL published the article “The hunted becomes the hunter: How Cloudflare’s fight with a ‘patent troll’ could alter the game” and it said this:

Matthew Prince knew what was coming. The CEO of Cloudflare, an internet security company and content delivery network in San Francisco, was behind his desk when the emails began to trickle in, slowly at first, then in bursts. College classmates-turned-defense attorneys, including from the University of Chicago, where Prince had nabbed his law degree years earlier, were reaching out to say hello and to ask: did Prince perhaps need help to fight a lawsuit they’d seen filed against Cloudflare in Delaware?

We wish Cloudflare good luck in this case. It’s fighting for many of us. It can help eliminate Blackbird Technologies, which — as stated above — is “doing [what] is unethical, is detrimental to technology innovation, and amounts to extortion…”

Garfum

Speaking of “extortion”, remember Garfum? It was last mentioned here about a year ago (we had written about it for much longer than a year). The EFF brought up this bunch of Mafiosos again (“patent trolls” would be almost a compliment for such vermin). It happened only days ago. Garfum is a patent troll that basically turned software patents into an extortion racket which mostly targets very small sites and relatively poor people. As the EFF put it:

Ruth Taylor never expected that her hobby would get her sued for patent infringement. Her photography website, Bytephoto.com, barely made enough advertising revenue to cover hosting costs. The site hosts user-submitted photos and runs weekly competitions, decided by user vote, for the best. Ruth’s main business is her own photography. She supports that business by visiting more than a dozen local art festivals in Bucks County, Pennsylvania every year.

In 2007, almost four years after Bytephoto began running online photo competitions, a company called Garfum.com Corporation applied for a patent titled “Method of Sharing Multi-Media Content Among Users in a Global Computer Network.” The patent, U.S. Patent No. 8,209,618, takes the well-known concept of a competition by popular vote and applies it to the modern context of computer networks. On September 23, 2014, Garfum filed a federal lawsuit accusing Bytephoto of patent infringement for allowing its users to vote for their favorite photo.

Why does this patent even exist after Alice? When is it going to be invalidated and how many people need to be coerced into paying ‘protection’ money before that happens?

Uniloc

One rather famous troll is called Uniloc (see our Wiki page about Uniloc) and it was covered here recently in relation to the latest Apple lawsuit. “Uniloc continues legal assault against Apple with two new patent suits,” said Apple Insider 4 days ago, correctly labeling Uniloc: “So-called “patent troll” Uniloc added to its quickly growing list of patent infringement lawsuits against Apple on Wednesday, filing two separate actions targeting AirPlay and Continuity features.”

Uniloc oughtn’t even exist. It’s truly a disgrace to the patent system that some man in a van (literally) continues to shake down companies that make stuff, unlike him (Ric Richardson, the Australian behind it all). What has the patent system become?

Shipping & Transit LLC

Speaking of truly nasty patent trolls (there’s even worse than Uniloc), how about Shipping & Transit LLC?

“Shipping & Transit” sounds like a real company, but it’s not.

Thankfully, this troll finds out the hard way that trolls now have a much tougher terrain. “Court Won’t Let Patent Troll Dismiss Its Way Out Of A Lawsuit, Orders It To Pay Legal Fees,” TechDirt wrote last week:

This fee award comes as the result of the plaintiff’s cut-and-run tactics. As we’ve seen in countless troll operations, lawsuits that are challenged often result in plaintiffs dismissing suits in hopes of avoiding paying the winning parties’ legal fees. (The government does this as well in asset forfeiture cases.) The same thing happened here.

Hall Enterprises, Inc. was targeted by the patent troll in hopes of an easy settlement. That didn’t happen. Hall Enterprises pushed back, hoping to have the court find the asserted patents invalid under the Supreme Court’s Alice decision. Unfortunately that didn’t happen either. Because of the dismissal, the court was unable to rule the patents invalid. But the court does take the time to indicate it would have done so if Shipping and Transit hadn’t force quit BaselessLitigation.exe.

Here is what the EFF wrote about it:

A court in the Southern District of Florida has recommended (PDF) that prolific patent troll Shipping & Transit LLC pay a defendant’s legal costs. This is the second court in less than a week to find Shipping & Transit’s patent litigation suit “exceptional” for purposes of awarding legal fees to a defendant.

The latest finding comes out of Shipping & Transit LLC v. Lensdiscounters.com, a case originally filed by Shipping & Transit just over a year ago, but not lasting nearly that long. When at an early hearing it came out there were serious defects in Shipping & Transit’s case, Shipping & Transit immediately sought to end the lawsuit. Lensdiscounters opposed letting Shipping & Transit run away without consequences. Lensdiscounters told the court its belief that Shipping & Transit had failed to investigate infringement before filing its lawsuit and that Shipping & Transit’s patents were invalid. It argued it should be awarded the cost it incurred in defending against Shipping & Transit’s infringement claim.

As usual, the trolls expert, who had followed this troll for a while, wrote about it that “Two judges smack down notorious patent holder “Shipping and Transit” in one week” [via]

Shipping and Transit LLC, a company that claims to have patented both the tracking of vehicles and the packages they deliver, has been hit with an order (PDF) to pay $36,317.50 in attorney’s fees.

US Magistrate Judge Dave Lee Brannon, who published the order yesterday, is the second federal judge to hit Shipping and Transit with fees in less than a week. It could be the beginning of the end for the patent-holding company, which has filed several hundred patent infringement lawsuits over the course of about a decade.

Swatting patent trolls like flies, especially after they used software patents in the post-Alice era, would help attract businesses to the US (or convince them to remain there). All these trolls that go on extortion expeditions have greatly damaged US attractiveness to any business and some time later we’ll write about politicians who openly state this.

Immersion, FitBit, Jawbone, and Creative Chose to be a Pile of Patents Rather Than Real Companies

Posted in America, Courtroom, Patents at 10:32 am by Dr. Roy Schestowitz

Some people out there have already labeled Immersion “patent troll”, but it’s not as simple as that

Immersion logo

Summary: FitBit is the latest company to be slapped by Immersion (having already driven Jawbone out of business) and there’s news about Creative, which uses old patents to shake down Apple and Android OEMs

THERE is definitely such a thing as a “patent troll” (or patent shark as it used to be called, or PAE/NPE as the euphemism); but then there’s that grey area where something or someone is “borderline troll” because one still makes some products (or at least aspires to). Today, we have decided to separate companies that are “real” from those that are obviously trolls. Even “real” companies, such as Microsoft, can oftentimes act like trolls, or at least send their patents (or Nokia’s) trolls’ way in order for the patent trolls to sue on their behalf (indirect trolling). It’s a truly nasty aspect of the industry and sadly enough it’s the reality out there; I often hear from victims of such trolls or “borderline trolls”. They can be utterly destructive to people’s personal lives, not just people’s businesses or pet projects. Bankruptcy is a possibility and there’s also an aspect of threats and blackmail (people literally afraid for their lives).

We’ll break down this post as follows (same for the next post, regarding classic trolls).

Immersion

In past years we wrote dozens of times about high-profile Immersion cases and various other cases of Immersion, a “real” company that’s more interested in “licensing” than actually producing something of its own (it sues almost everybody, except Microsoft, which is historically close to Immersion because of DirectX). Less than a week ago FitBit, which is itself somewhat of a patent bully (we’ll come to that later), found itself on the receiving end of Immersion’s litigation machine. Frankly, no sympathy deserved here because Immersion is now doing to FitBit what FitBit did to its own competitors. Here are the details:

FitBit, which makes wearable technology for fitness, has been sued for patent infringement over use of motion sensing software in its products.

The complaint was filed at the US District Court for the Northern District of California on Monday, July 10.

California-based software company Immersion accused FitBit of wilfully infringing three of its patents, causing “irreparable harm”.

FitBit's own weakness is that its patents may be worthless. We don’t think FitBit can sue Immersion over anything; it would be a lot easier if Immersion actually made something! So there’s no balance of patents here; in effect, only one side can throw patents at the other — the hallmark of patent trolls!

Jawbone

Jawbone got sued by FitBit, but it was at least able to sue FitBit to balance things a little. Both companies actually have products, but as for Jawbone, it seems to be the end of it. The company is becoming just a pile of patents and IAM drools over the possibilities, perhaps expecting these patents to be handed over to trolls:

Jawbone, the consumer electronics business, which was one of the pioneers in fitness oriented wearable devices, started liquidation proceedings earlier this month. Having attracted more than $600 million in venture capital funding and reached a peak valuation of $3 billion, the company suffered in the increasingly competitive wearables market which has seen large tech companies like Apple and Samsung growing their presence. According to reports the company’s founder has set up Jawbone Health Hub which will continue to service Jawbone devices.

What contributed to Jawbone’s collapse was the lawsuit from FitBit, but FitBit too is collapsing and apparently demand for wearable surveillance devices isn’t what they hoped for. We wrote about FitBit’s severe problems (financial) when we also mentioned RPX going headless.

RPX

RPX is not a company but a very major parasite that we wrote about many times before. IAM of course loves such patent parasites, so it recently celebrated this “RPX settlement deal”. Creative settles with another troll (like itself, having run out of ideas and products) and PTAB might serve to thwart this abuse some time soon (we’ll deal with PTAB separately later today). Here is what IAM wrote some days ago:

RPX Corporation yesterday announced a deal with Singapore’s ZiiLabs that will see the Creative Technology subsidiary assign certain patent rights to the defensive aggregator while ending a US litigation campaign with at least seven defendants. The deal appears to end ZiiLabs’ campaign to enforce patents it obtained through a 2002 takeover of 3DLabs. It will not affect Creative’s other major assertion effort, a series of cases based on the so-called ‘Zen patent’ which once compelled a $100 million settlement from Apple and is now awaiting an IPR decision.

Calling RPX a “defensive aggregator” (as IAM does) is misleading; it’s more like an offensive aggressor. It’s full of them anyway. Even Microsoft is a member.

In the next post we’ll syndicate and remark on various patent trolls and what they are up to.

Debate About Software Patentability in India Still Dominated by Patent Lawyers Rather Than Software Developers

Posted in Asia, Patents at 9:51 am by Dr. Roy Schestowitz

Slide like elephant

Summary: The warped debate in English-speaking media gives the impression that India should open the door to software patents even though it’s perfectly clear that such patents would harm India’s interests

THE subject of software patents in India matters to us. It affects a lot of the world (including the US) because India is, by some criteria, the world’s leader in software development (not to be mistaken for software delivery, distribution, etc.), which means that the programmers and services companies ought to strongly reject such patents outright. They would be worst affected by patents on software.

“IAM, a proponent of software patents, had yet another post from LexOrbis, which keeps pushing for software patents in India based on falsehoods and misconceptions.”Recently in Bangalore, according to Banana IP (popular blog in India), “Assistant Professor, Indian School of Business spoke on issues related to Software patents…”

IAM, a proponent of software patents, had yet another post from LexOrbis, which keeps pushing for software patents in India based on falsehoods and misconceptions. Pankaj Musyuni wrote about “assessments of obviousness remain subjective” and for those who forgot, so far this year IAM pushed India — even by shaming tactics — towards software patentability. Among the examples we covered here:

  1. China Adopts Software Patents and IAM ‘Magazine’ (Lobbyists) Continues to Shame India Into It
  2. IAM Just Can’t Stop Pushing for Software Patents in India
  3. IAM ‘Magazine’ as Megaphone for Chamber of Corporates (CoC), Which Tries Shaming India Into Software Patenting
  4. IAM Helps Enemies of India’s Interests Lobby for Software Patents in the Country
  5. IAM ‘Magazine’ in a Campaign to Destroy India’s IT Industry and Help Patent Trolls There
  6. IAM is a Think Tank for Patent Trolls, Software Patents, the EPO, Microsoft, and Whoever Else is Willing to Pay
  7. The Patent Microcosm’s Failed Push for Software Patents Resurgence in the US and Similar Attempts in India and China

The recent changes to the rules have led to a great deal of debate, not just in Indian languages/dialects but also in English. But this debate is one-sided in the media. It excludes the most important component: software developers!

“The recent changes to the rules have led to a great deal of debate, not just in Indian languages/dialects but also in English.”Lawyers that work for foreign (occupying) corporations in India keep dominating the media, which seems unable to find a programmer to speak to. Here we have Sanjeeta Das from SS Rana & Co. This again speaks from the point of view of law firms and says this:

The journey pertaining to Guidelines for Examination of Computer Related Inventions (herein CRI) has been both time-consuming as well as riddled with lot of amendments. In light of several remarks and comments from numerous stakeholder’s and further sessions with the Indian Patent Office, revised guidelines pertaining to examination of CRIs has been published on the 30th of June, 2017 which are breather after a long dry spell.

[...]

Algorithm and Computer Programme per se: Computer programs are claimed in the form of algorithms as method claims or system claims with some “means” indicating the functions of flow charts or process steps. While establishing patentability, the focus should be on the underlying substance of the invention and not on the particular form in which it is claimed.

However, it has been clarified that if in substance, the claim, taken as whole, does not fall in any of the aforesaid excluded categories, the patent should not be denied.

Further, the exclusion of computer programs should not be avoided merely by camouflaging the substance of the claim by its wordings.

[...]

The rules appear to indicate that the Indian Patent Office has taken a more favorable approach to the allowability of CRIs as compared to the past.

For the Indian Patent Office to work for Indian people (and firms) it needs to strictly reject all software patents, no matter how these are disguised. There needs to be more pushback from developers as the media in India (at least English-speaking media) is only covering one side of the story.

Links 16/7/2017: Mesa 17.1.5, FreeBSD 11.1 RC3

Posted in News Roundup at 8:22 am by Dr. Roy Schestowitz

GNOME bluefish

Contents

GNU/Linux

  • How I put Linux in the enterprise

    I used to work in higher ed. In the late 1990s, we moved to a new student records system. We created an “add-on” web registration system, so students could register on-line—still a new idea in 1998. But when we finally went live, the load crushed the web servers. No one could register. We tried to fix it, but nothing worked.

  • Desktop

  • Kernel Space

    • Linux 4.12.2

      I’m announcing the release of the 4.12.2 kernel.

      All users of the 4.12 kernel series must upgrade.

      The updated 4.12.y git tree can be found at:
      git://git.kernel.org/pub/scm/linux/kernel/git/stable/linux-stable.git linux-4.12.y
      and can be browsed at the normal kernel.org git web browser:

      http://git.kernel.org/?p=linux/kernel/git/stable/linux-st…

    • Linux 4.11.11
    • Linux 4.9.38
    • Linux 4.4.77
    • Linux 3.18.61
    • UBIFS Gets Statx Support, Better Encryption In Linux 4.13

      The Linux 4.13 kernel changes for the UBIFS file-system have been submitted.

      UBIFS, as a reminder, is the Unsorted Block Image File-System deigned for flash memory devices off the UBI layer. UBIFS in Linux 4.10 gained file-encryption support making use of the fscrypt functionality used as well by F2FS and EXT4. With Linux 4.13, there are UBIFS related encryption updates and fixes.

    • Linux 4.13 Thermal Management Sees Some Improvements For CPU_Cooling

      The thermal management updates have landed in the Linux 4.13 code-base.

    • Linux 4.13-rc1 Kernel Released
    • Merge window over – Linux 4.13-rc1 out

      Ok, normally I do this on Sunday afternoon, but occasionally it
      happens a day early like now to avoid people timing me.

      In fact, I was planning on doing it yesterday evening this time around
      because I was so annoyed with lots of late pull requests on Friday
      (and some today), but ended up going to dinner and not getting
      everything done, so it’s only one day early. Next time…

    • The New Changes & Features Of The Linux 4.13 Kernel

      With Linux 4.13-rc1 having been released, here’s my original look at the new features coming for the Linux 4.13 kernel and the other changes merged over the past two weeks of this new cycle.

    • Please pull NFS client changes for Linux 4.13
    • Graphics Stack

      • Mesa 17.1.5 Brings More Fixes To Open-Source GPU Driver Users

        Andres Gomez of Igalia has announced Mesa 17.1.5 as the newest point release to the current Mesa 3D stable series.

        Mesa 17.1.5 fixes a potential crash in core Mesa, has Vulkan / SPIR-V fixes, the usual notable fixes in the Intel i965 and RadeonSI drivers, and some smaller fixes to Etnaviv, OpenSWR, SVGA, and other parts of this massive user-space 3D graphics stack.

      • [Mesa-announce] [ANNOUNCE] mesa 17.1.5

        In Mesa Core we include a fix to prevent a potential crash.

      • Mesa 17.1.5 Linux Graphics Stack Released, Improves AMD Radeon & Intel Drivers

        After teasing us a couple of days ago with the upcoming availability of the fifth maintenance update to the Mesa 17.1 3D Graphics Stack for GNU/Linux distributions, Mesa developer Andres Gomez is now announcing the final release of Mesa 17.1.5.

        Mesa 17.1.5 comes only two weeks after the Mesa 17.1.4 update that probably many of you are using right now on your Linux distros, and it’s here to add an extra layer of improvements for those using AMD Radeon or Intel graphics cards. First off, Mesa 17.1.5 fixes a potential crash in Mesa Core, adds better support for the GLSL and SPIR-V compilers, and solves a linking problem with standalone Android builds.

      • Vulkan 1.0.54 Lands In Mesa For Intel ANV, Some RADV Extensions

        It’s fabulous to see how promptly the Mesa Vulkan drivers are receiving support for new extensions.

        Vulkan 1.0.54 was released on Thursday. This updated promoted the external memory and semaphores extensions from experimental to stable. They also added new extensions for 16-bit storage, dedicated allocation, storage buffer storage class, variable pointers, new memory requirements query, and external fences for external memory.

      • Difficulties and Success Stories

        This hints to a fundamental issue with our approach of using the Present extension in Xwayland. The extension was written with hardware in mind. It assumes a flip happens directly on a screen. There is no intermediate link like a Wayland compositor and if a flip has happened the old buffer is not on the screen anymore. Why do we still try to leverage the Present extension support in Xwayland then? There are two important features of a Wayland compositor we want to have with Xwayland: A tear-free experience for the user and the ability to output a buffer rendered by a direct rendering client on a hardware plane without any copies in between. Every frame is perfect should also remain valid when using some legacy application and that we want no unnecessary copies is simply a question of performance improvements. This is especially important for many of the more demanding games out there, which won’t be Wayland native in the short term and some of them maybe never. Both features need the the full Present extension support in the Xwayland DDX. Without it a direct rendering application would still use the Present extension but only with its fallback code path of copying the Pixmap’s content. And for a tear-free experience we would at least need to sync these copies to the frame events sent by the Wayland compositor or better directly allow multiple buffers, otherwise we would limit our frame rate. In both cases this means again to increase the Present extension support.

      • It Looks Like Intel Could Begin Pushing Graphics Tech More Seriously

        It’s been a while now since last seeing some major graphics advancements on Intel CPUs. With Skylake/Kabylake we are on “Gen 9″ graphics, Kabylake-Refresh / Coffeelake is still Gen9 graphics, Broadwell was on Gen8, Haswell on Gen7.5, and IvyBridge on Gen 7. But with upcoming launches past Kabylake-Refresh/Coffeelake, it looks like we’ll be stamping out Gen 10, Gen 11, and Gen 12.

      • Codeplay Release “clspv”, an OpenCL Tool for Vulkan Enabled Devices

        In collaboration with Google, Codeplay is proud to announce the release of a new open-source tool allowing the compilation of OpenCL C language kernels to run on the Vulkan API.

  • Applications

  • Desktop Environments/WMs

    • K Desktop Environment/KDE SC/Qt

      • digiKam GSoC Students in Egypt

        It was nice meeting Ahmed and Shaza @ faculty of Engineering, Ain Shams University in Cairo. I am proud to mentor them in Google Summer of Code.

        Ahmed is working on implementing a DLNA server in digiKam core to export photo and video hosted in physical and virtual collections. The server is ready and he working on the configuration panel UI. See more here.

      • Best be precise

        KSysGuard — the system monitor — on FreeBSD seems oddly precise.

      • Plasma Wayland and Qt 5.9 and beyond

        As you might know Qt 5.8 created challenging problems for our Wayland session and threw our efforts back quite a bit. In this post I want to discuss the actual problems it created, how we are addressing them and looking into the future.

      • The Regressed State Of KDE Plasma On Wayland, But Things Should Get Better

        KWin maintainer Martin Gräßlin has written a blog post explaining the issues they’ve run into with KDE Plasma on Wayland and how changes to Qt have set them back months in their Wayland session support.

      • Akademy Schedule

        The workshops and lightning talks and BoFs are being planned, too. I’m glad Anu Mittal has mentioned her QML + JS workshop, it’s a great topic for getting started with application development. QML is something I’ve never gotten in to, but should, so I’ve penciled this workshop into my schedule as well.

      • [Krita] GSoC’17-Week #4
      • KF5 Applications Porting

        Next week, KDE developers will release the beta of KDE Applications 17.08. This release will again have more applications and nearly all games ported to Qt5/KF5. While Qt4 is already no longer supported for over a year, KDE has decided to support Qt4/kdelibs4-based applications a bit longer.

        The 17.08 release, however, will be the last to include Qt4/kdelibs4-based applications. This means, 17.12 will only include applications that are based on Qt5/KF5. See this mailing list discussion.

      • Kdenlive 17.04.3 released

        In comparison to previous versions this was the least exciting development cycle, in terms of new features, since all focus has been on the code refactoring which will bring more stability and new features. Don’t miss the next Café to keep track on the progress and share your thoughts if you like.

  • Distributions

    • Reviews

      • Solus 2017.04.18.0 review – Second time lucky?

        Solus 2017 looks like a nice distro, with some obvious visual caveats and tiny functional quirks. It’s reasonable enough than I’m determined to test it on non-UEFI hardware, where I’ll hopefully have more luck. But on a UEFI platform, it seems hopeless. I don’t know there should be a problem when so many other distros do just fine without any issues. Solus seems to be a special snowflake, and it does not cooperate well with a modern and complex system.

        All in all, I cannot recommend the distro, because the outcome may still be harmful. If a distro cannot install properly, the results can be unpredictable. My testing shows some very favorable things, and Budgie looks quite all right now, but as a package, Solus just doesn’t handle UEFI well. I’ll report back after a third, and hopefully lucky test, but you are warned to carefully proceed until the hardware side has been polished. Double sigh. Maybe another another time.

      • A Short Review of Linux Mint 18.2 “Sonya” Cinnamon LTS
    • New Releases

      • Introducing Endless OS 3.2

        This major release brings some exciting changes with a refreshed desktop, great visual improvements, and more offline apps for our users in Southeast Asia to enjoy. Since this is a major release, make sure to update your OS (Settings > Details > Check for updates now), before you update your apps from the App Center!

    • Red Hat Family

    • Debian Family

  • Devices/Embedded

Free Software/Open Source

  • Web Browsers

    • Mozilla

      • Pale Moon browser new release, better media support

        I have updated my palemoon.SlackBuild and have uploaded fresh Slackware packages for this new Pale Moon 27.4.0. As previously shared with you, I diverge from the official developers’ recommendations about how to compile this browser on Linux. For instance the gcc compiler I used on Slackware 14.2 is gcc-5.3.0 (which is part of this distro release). On -current I failed compiling with the gcc-7.1.0 compiler which is the default there and I had to create a “gcc5” package for gcc-5.4.0 (which was an earlier gcc version in slackware-current). I wrote an article on this very blog about that gcc5 package if you are interested, it can be installed in parallel with Slackware’s own gcc-7. There are some other differences, mainly in the way I optimize my build.

  • Oracle/Java/LibreOffice

    • LibreOffice 5.3.4 Released and Available via PPA for Ubuntu/Linux Mint

      LibreOffice is the power-packed free, libre and open source personal productivity suite for Windows, Macintosh and GNU/Linux, that gives you six feature-rich applications for all your document production and data processing needs: Writer, the word processor, Calc, the spreadsheet application, Impress, the presentation engine, Draw, our drawing and flowcharting application, Base, our database and database frontend, and Math for editing mathematics. Its clean interface and powerful tools let you unleash your creativity and grow your productivity. Support and documentation is free from our large, dedicated community of users, contributors and developers.

  • BSD

    • NAS4Free 11.1.0.4.4485 Released
    • FreeBSD 11.1-RC3 Available

      The third RC build for the FreeBSD 11.1 release cycle is now available. ISO images for the amd64, armv6, i386, aarch64, powerpc, powerpc64 and sparc64 architectures are available on most of our FreeBSD mirror sites.

    • FreeBSD 11.1-RC3 Now Available

      The third RC build of the 11.1-RELEASE release cycle is now available. This is expected to be the final RC build of the 11.1-RELEASE cycle.

    • FreeBSD 11.1 RC3 Released As The Final Build Is Near

      FreeBSD 11.1 remains on track for releasing later this month.

      FreeBSD 11.1 RC3 is available this weekend as what should be the final release candidate for this minor update to FreeBSD 11. Changes found in FreeBSD 11.1 RC3 include adding deprecation notices to gdb/kgdb/sicontrol/wlconfig and other drivers that will be removed in FreeBSD 12.0, Capsicum support in the Bhyve virtualization code, and various other fixes and clean-ups.

  • Licensing/Legal

    • EUPL v1.2 becomes OSI approved

      “The OSI has approved EUPL v1.2. It will be added to the public list of OSI-approved licenses in due course. As with EUPL 1.1, the approval extends to all the official language versions of the license.”

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