09.13.10

Microsoft’s and Apple’s GUI Patents (e.g. “Start Menu” and “Dock“) Show Why the USPTO is Seen as a Farce

Posted in Apple, GNU/Linux, Microsoft, OpenSUSE, Patents, SUN at 9:42 pm by Dr. Roy Schestowitz

OpenWindows on Solaris

Summary: Some new examples and a new discussion about Microsoft and Apple “innovations” that were not

MICROSOFT MAY HAVE a patent (or more) on “Start menus”/”task bars”, but Microsoft never came up with these ideas which are merely inspirations and aggregations of existing ideas (well, maybe Clippy was Microsoft’s idea, but it wasn't that good). Just about anything in Windows’ graphical user interface is in some way ‘borrowed’ from another operating system, but that’s not the picture people are getting if they grow up only seeing Windows around them and one day come across something different which looks “just like Windows” (rather than the other way around). It’s worth mentioning right now because this OpenSUSE site is currently contributing to the false perception that Microsoft was the first.

“Just about anything in Windows’ graphical user interface is in some way ‘borrowed’ from another operating system…”“Start me up” said an old motto/song, but Microsoft did not start up a so-called ‘start menu’. It merely repackaged what already existed. The same goes for Apple’s ‘dock’; many people love to call/label everything resembling it a copy/clone of Apple rather that acknowledge that Apple was merely copying some ideas which already existed and were implemented, e.g. by Sun for reflections. That’s just why the patent system has become so tactless and out of touch.

Over at Planet Fedora we found this new rant about what software patents do to computer scientists.

There is a whole mess in here with patents, and this is related to why patents may be unethical for science. In a machine patent, the science isn’t necessarily being patented; it’s the results of the science that is. Any science that leads up to the machine patent should be open and visible for reproducing and verifying.

But a software patent is a slippery thing. The patent may cover the science as well as the product of the science, in that both can be in the code. There is an ethical dilemma for any scientist when they patent the science. They are putting a price tag and control on reproducing and verifying the science. Without verification, the science is invalid.

In case you are wondering if this is just semantics and word choices, it is. Perhaps all of the people who call themselves computer scientists, shouldn’t? I presume the word has meaning for them, as it does for the rest of us, and I expect them to act accordingly.

Being a scientist has a specific meaning that spans a long part of written history. How long? Several hundred to several thousand years, depending on what you are measuring. It is clear that the scientific method has been followed since at least the Middle Ages. It predates copyright and patent law by at least several centuries, if not nearly a full millenium.

Disregard and disdain towards the patent system seems to be increasing. It gets worse even from within, based on Alex Stack who complains about lack of transparency:

USPTO Data: CIPO [Canadian Intellectual Property Office]?

Those of you who know me well know that in the past I have harped on patent office statistics like pendency and backlogs. I think they are important – central, critical even – to understanding how patent law functions in a country.

As Wayne says in the comments (there is only one): “Probably in the 22nd century. And it will probably be the 23rd century before it works properly.”

Here again is an example of embargoes/sanctions being used as a weapon thanks to the USPTO:

The latest skirmish in a giant patent fight over flash memory chips in MP3 players, cell phones, digital cameras and tablet computers got a green light to proceed from the International Trade Commission.

The ITC is one of the worst possible things that can happen to innovation [1, 2, 3, 4, 5]. It helps demonstrate that the USPTO is imperialistic in the sense that it goes overseas to impose and enforce its controversial views.

09.10.10

Quote of the Day: “Microsoft-sponsored Lobbyists and Lawyers Forming Groups to Initiate a Variety of Cases Against Google”

Posted in Antitrust, GNU/Linux, Google, Microsoft, Quote, SCO, SUN at 3:11 pm by Dr. Roy Schestowitz

Football huddle

Summary: Words of value from someone who was relatively close to regulators and a word about SCO against Linux

Simon Phipps, formerly an executive of Sun Microsystems, has this to say about the seemingly Microsoft-funded legal attacks on Google [1, 2, 3, 4]:

The conspiracy theories Pamela espouses are well-based. At the start of last year as I was working on other technology policy issues with colleagues in Brussels, there were constant stories of indirectly-but-identifiably Microsoft-sponsored lobbyists and lawyers forming groups to initiate a variety of cases against Google over there, on the premise that “anti-trust has changed us and now Google are the new monopoly”. I heard the same from colleagues in DC too. So, as Pamela says: “Is this perhaps more abuse of the legal and administrative systems for anticompetitive purposes? If so, could somebody investigate *that*?”

Microsoft has already admitted being behind legal complaints against Google in Europe.

In other news from Groklaw, the Microsoft-funded lawsuit against Linux still refuses to die.

A new trial. Of course. There can never be too many trials for SCO, as it would like to actually win one and would prefer to keep trying until it does so. Apparently money is no object to a company that is in bankruptcy, has paid none of its creditors, and is now trying to sell off essentially all its assets but the litigation on which it long ago set all its hopes and dreams. And you can’t say it’s impossible to get an empathetic hearing from this court of appeals. It bent over backwards for SCO last time, granting it this 2nd trial that SCO then lost. So who knows? My grandchildren may someday be writing about the next SCO v. Novell retrial, as this crazed monomania seems to have no closing chapter.

Where/who does SCO continue to get money from?

“…Microsoft wished to promote SCO and its pending lawsuit against IBM and the Linux operating system. But Microsoft did not want to be seen as attacking IBM or Linux.”

Larry Goldfarb, BayStar, key investor in SCO approached by Microsoft

09.09.10

Gizmodo Glorifies Patent Trolls, Oracle Nods to Software Patents

Posted in Apple, Free/Libre Software, Microsoft, Oracle, Patents, SUN at 7:53 pm by Dr. Roy Schestowitz

Summary: Gizmodo sells out to Microsoft’s patent troll; Oracle pays NetApp for alleged software patents relating to the Open Source (ish) ZFS

JUST OVER A WEEK ago, someone in our IRC channels mentioned Gizmodo selling out to Intellectual Ventures, the world’s largest patent troll which is groomed by Bill Gates, Microsoft, and Apple (all are founding and/or funding sources). We were going to post a rebuttal to Gizmodo, but decided it would be better to just never give attention to that puff piece. TechDirt has just caught up with this embarrassment at Gizmodo and responded by blaming “PR”.

A bunch of folks have been sending over this somewhat ridiculous love letter to Intellectual Ventures written up at Gizmodo (a site that usually is a lot more on the ball than what this post shows), which basically takes all of IV and Nathan Myhrvold’s favorite talking points (many of which make little sense) and simply parrots them back, acting as if the company is some sort of Willy Wonka chocolate factory of invention — but leaving out the hundreds of millions of dollars companies pay up as a sort of “don’t sue us tax,” and the incredibly sketchy nature of the over 1,000 shell companies set up by the firm and the entirely secret nature of many of its business dealings. Instead, the guy at Gizmodo is wowed by the fact that the company has computer hackers trying to cure cancer.

[...]

Why would that be mistaken? The article doesn’t say. Instead, the writer just seems wowed by the fact that IV has lots of old scientific equipment. What a shame. It would be nice if someone actually asked Myhrvold and his crew some actual tough questions, rather than fawning over the fact he once dug up dinosaur bones.

Nathan Myhrvold’s foolish patents are currently being promoted by Gates, for profit. It’s a mostly untold story, but one which we covered several times before. The above is yet another story of success in exploiting the media — convincing it to tell fairy tales, thanks to an army of PR agencies just like Gates’. Gizmodo should hang its head in shame for playing along with it. Just over a month ago Groklaw alleged that Gizmodo was getting close to Microsoft because it was riling people up against Apple and praised Microsoft projects at the same time.

Intellectual Ventures not only has a lot of PR with which to deceive the press; it also spends a lot of money lobbying governments, pushing for the obvious policies (allowing patent trolls, software patents, and so forth). Recently we showed how New Zealand’s patent law got subverted by foreign lobbyists, only for changes to eventually be reversed in some sense, as also explained in this new legal analysis.

Moving on to something a little different, Phandroid has this new article which characterises Palm as a gold mine of software patents, which is probably true.

After we figured HP was just about done with Android after their acquisition of Palm (which gave them full access to webOS and tons of neat software patents), rumors began swirling that those earlier suspicions were a tad bit preemptive and that HP still had plans to bring out an Android tablet.

It wasn’t long ago that Android came under a lawsuit from Oracle, not just from Apple (whose CEO is a close friend of Oracle’s CEO). Apple itself threatened Palm using patents and it is said to have withdrawn from ZFS because as we explained last year, patents killed ZFS to an extent. NetApp's aggression was a major factor and not much has changed because NetApp is now harassing Coraid for its use of ZFS. Watch how Oracle sells ZFS down the river, unlike Sun (paying ZFS so very submissively). That’s just another new example of software patents endorsement at Oracle:

IDG says: “Storage vendor NetApp said Thursday it has reached an agreement with Oracle to dismiss patent litigation stemming from a 2007 suit NetApp filed against Sun Microsystems, which.Oracle acquired earlier this year. Terms were not disclosed.” NetApp’s founder speaks at Oracle OpenWorld 2010, so it seems like an amicable resolution.

“[N]ot much to celebrate in this settlement,” said to us FurnaceBoy, a Solaris/ZFS expert. Legitimising software patents is possibly what Oracle does here, so the FSF’s denouncement of Oracle for its unnecessary patent aggression [1, 2, 3, 4, 5, 6] comes at a fairly good time.

09.07.10

Red Hat Should Eliminate All of Its Patents, or At Least Attach Self-Destructive Clauses to Them

Posted in GNU/Linux, Oracle, Patents, Red Hat, SUN at 8:01 pm by Dr. Roy Schestowitz

Time Bomb DVD

Summary: In order to prevent software patents which are owned by Red Hat from falling into the wrong hands (e.g. in an acquisition like Oracle’s), something should be done to diffuse them

Red Hat’s patents are a subject we previously wrote about in posts such as:

Over a week after those scary SAP rumours we checked to see if Red Hat has done something to ensure that its patents will self-explode if they reach the wrong hands (like Oracle getting Sun’s Java patents). “I discussed that with @webmaven a few weeks ago,” Richard Fontana (Red Hat) told me today. It does not seem like progress has been made since then. Red Hat really needs to ensure that its portfolio does not get used against the Free software community in the same sense that Sun’s portfolio is being misused right now [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13].

“Red Hat really needs to ensure that its portfolio does not get used against the Free software community in the same sense that Sun’s portfolio is being misused right now.”Does Red Hat really need patents? I had a discussion about it with Red Hat earlier today and I was left overwhelmingly unconvinced. Hugo Roy, a software freedom activist whom we mentioned in the previous post, writes that “In 1985, someone filed a patent for a brilliant invention: the “Tool”

“I haven’t looked at the patent itself,” he told me, “so I don’t know if we can really say that. But sure, the title is not credible”

Patents have become so controversial that major newspapers occasionally call for an overhaul and maybe even abolition. We saw some examples last week.

Here is a new CERN article from the New Scientist. It helps show patents versus science, not for science:

You might imagine that vast patent royalties flow into the organisation that invented the touchscreen and the World Wide Web. But the atom-smashing outfit CERN, cradle of both these technologies, doesn’t make a bean from either.

The particle physics laboratory near Geneva, Switzerland, has been reluctant to patent the inventions it creates in pursuit of exotic subatomic entities. But it hopes that will soon change: last week, it struck a deal with the United Nations’ World Intellectual Property Organization (WIPO) to ensure that it profits better from its engineers’ innovations in fields like imaging, computing, particle detection and superconducting magnets, says international relations adviser Maurizio Bona.

If Red Hat still sidles with science and not with patents (or the USPTO which legitimises software patents), then it will take care of those potentially-destructive weapons it has in its hands/arsenal. It’s too late to do this if/when a takeover is imminent. Red Hat has just announced the hiring of a lobbyist (“Mark Bohannon to Lead Red Hat Governmental Affairs and Public Policy” as pasted here) and together with the practice of software patents, Red Hat is at risk of being called a hypocrite; it doesn’t need to be.

Red Hat is not the only GNU/Linux proponent which claims to be collecting “defensive” software patents. Red Hat is unique though. IBM and Google, for example, are somewhat different in this case because they are not in a position where they can practically be sold along with their patents (not any time soon).

08.24.10

Google Shoots Itself in the Foot by Patenting Software

Posted in Google, Java, Microsoft, Oracle, Patents, SUN at 3:15 am by Dr. Roy Schestowitz

God is Google

Summary: Google’s greed for patents may harm its Java/Dalvik/Linux cause and questions ought to be asked about unwise hires that seemingly subverted Google’s policy

GOOGLE was once a fine company created by software developers/scientists, but about 3 years ago we showed a video where Google hires are seen who are lawyers that loves software patents and insist on having them. This is sad. We have already posted a little memo to Google regarding software patents, but unless masses of people do something similar, Google (the ‘God’ of the Internet) will continue to ignore such pleas.

Oracle’s patent attack on Google/Dalvik [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12] ought to have taught Google that the world would be a better place if it was without software patents. Why can Google not do more to end software patents? At the moment, Google reinforces patents using its USPTO search facility with improved features which are added over time. There are even patents on providing access to patents and there is a patent on patent trolling, too. Are tools like this one infringing on Google’s patents? Are patent trolls infringing on IBM’s patent? “Google Patents Indexing, Retrieval of Blogs,” says this item of news.

This week, Google Inc. was assigned a patent by the United States Patent and Trademark Office USPTO for the invention of a system and method for indexing and retrieval of blogs.

You can find details of this new patent 7765209 in IP.com’s Intellectual Property Library, which includes detailed information for this patent, first applied for in 2005 and granted in 2010 for what appears to be the core patent for Google’s system and method of indexing blogs, which are now included in the results of a Google search.

Has Google lost its head? There are other new patents from Google. Why are patent lawyers running this company now? And how can Google appeal for sympathy when it falls under patent attacks (the same goes for net neutrality)? To Google’s credit, so far it has used patents only defensively, but these policies don’t last forever. Microsoft and Apple are both patent predators and Sun’s patents, for example, became offensive when put in the hands of another company. “Clearly, Oracle is a strong believer in software patents. And if they can use patents as a lever for revenue generation, they will,” said RedMonk analyst Michael Cote to IDG. With Microsoft as a major barrier and Oracle as a true obstacle, Google’s smarter strategy ahead would be elimination of software patents. Here is a new article of interest:

If that weren’t about to become a sticky political wicket for the company, it also faces growing antitrust, privacy and patent scrutiny, fanned by a growing phalanx of Beltway opponents, the latest being Larry Ellison and Oracle. “There’s a set of people who are intrinsic oppositionists to everything Google does,” Mr. Schmidt acknowledges resignedly. “The first opponent will be Microsoft.”

Mr. Schmidt is familiar with the game—as chief technology officer of Sun Microsystems in the 1990s, he was a chief fomenter of the antitrust assault on Bill Gates & Co. Now that the tables are turned, he says, Google will persevere and prevail by doing what he says Microsoft failed to do—make sure its every move is “good for consumers” and “fair” to competitors.

We have a lot of the documents from this trial in Comes vs Microsoft. We also know that Microsoft threatened Sun with software patents. Bill Gates and Steve Ballmer did it personally like Joe Pesci and Al Pacino playing mafia.

08.21.10

Bogus Oracle Patents, Broken USPTO, Apple’s Patent Aggression, and Acacia Gets More Money to Troll

Posted in America, Apple, Java, Law, Oracle, Patents, SUN at 10:23 am by Dr. Roy Schestowitz

Java logo

Summary: Gosling may have helped Sun gain bogus patents (violation of USPTO rules), the USPTO delegitimises itself with poor adherence to quality, and Acacia receives more money with which to further delegitimise the USPTO

THE GOOD thing about the Oracle lawsuit (which is generally very bad [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]) is that it motivates more people to end software patents right now.

The debate about software patents is hot again. Rui Seabra passes the message that “Merely asking #Oracle: “play nice” isn’t enough. We should demand abolition of their #swpats [software patents]”

Red Hat’s Richard Fontana says: “incidentally, whatever one thinks of #swpats, #disturbing if #Gosling knowingly signed off on bogus patent; see http://ur1.ca/16ox4 [§ 1.56 Duty to disclose information material to patentability. - Appendix R Patent Rules]”

Fontana is referring to joke patents [1, 2, 3], which continue to cause great controversy and stir up important debate.

Mike Masnick shows that “Patent Office [is] Back To Approving Pretty Much Anything”:

Of course, the unfortunate reality is that this won’t actually solve the backlog problem at all. You would think, with all the engineering/operations brains at the Patent Office, that they would understand that this will only make the backlog worse. Approving junk patents only makes it more lucrative to file ever more ridiculous patent applications, which only increases the backlog. In rushing through more patents, it only encourages a bigger and bigger backlog. In treating the symptoms, rather than the actual disease, we’re making the disease much, much worse.

Separately, Masnick shows that the court system (not the USPTO) rejects a controversial patent. The courtroom — unlike the USPTO — does not have special incentive in approving more and more patents.

Last fall we wrote about how a company named Ultramercial had sued Hulu, YouTube and WildTangent over patent 7,346,545 for requiring people to watch an ad before being able to access content. It resulted in an interesting discussion in our comments, where some patent system defenders insisted that the patent was perfectly legit. Unfortunately, the court disagrees with those folks. It has ruled that the patent is not valid (the ruling covers Hulu and WildTangent — YouTube was dismissed from the case). Perhaps most interesting is the fact that the court chose to use the “machine or transformation test” for judging the patent. While some have read the Bilski ruling to “reject” the “machine or transformation” test, that’s not quite true.

Simon Phipps responds to the Oracle lawsuit also by raising questions about OIN:

Software patents are broken and the only possible justification for having them is self-defence (which is itself a risky accumulation of armaments). Perhaps OIN and the Linux Foundation need to make membership conditional on members taking no first action against each other with software patents?

We criticised the OIN’s vulnerabilities long before other people did, even back in 2008. Additionally, we seemed to be among the first to suggest that Apple could have a role in Oracle’s action (we brought up the possibility hours after the announcement). We now find more articles noting the Jobs-Ellison connection and Apple booster Daniel Eran Dilger is adding to the FUD. We link just to comments on his article, not from his Apple choir, so for anyone who still thinks that Apple and its followers are not harmful to Linux, pay careful attention to this. It’s part of a pattern from this close friend of Apple. People like Denial should do more to tell their emperors at Apple to stop the patent greed, including the investment in the world’s biggest patent troll. When Apple threatened Palm with patents, Daniel of course defended Apple.

Speaking of the world’s biggest patent troll, Acacia too has just received a quarter of a billion dollars of investment money (in patent trolling). [hat tip: FFII]

Acacia Research Corp. in Newport Beach has established a fund to buy, license and enforce patents and other intellectual property.

The Acacia Intellectual Property Fund LP has received an initial $27 million from an unnamed institutional investment group. An Acacia subsidiary will be the fund’s general partner.

[...]

Acacia recently announced two separate settlements with IBM for undisclosed terms to license Acacia-owned patents for monitoring computer applications. One lawsuit was pending in federal court in Texas and the other in Nebraska.

Microsoft recently paid Acacia, which sued Linux (through Red Hat and Novell).

08.19.10

Larry Ellison: “We Have to Exploit Open Source.”

Posted in Oracle, Patents, SUN at 6:41 pm by Dr. Roy Schestowitz

Larry Elllison on stage
Photo from Oracle Corporate Communications

Summary: Good new find from SJVN and further explanation about comedy regarding software patents at Sun Microsystems

“IF an open source product gets good enough, we’ll simply take it,” said Oracle's CEO on one occasion. Steven J. Vaughan-Nichols (SJVN) has found another memorable quote that he mentions in relation to this article:

So why would Oracle, a Linux-supporter in its own right, introduce the evil of software patents into open-source programming? My answer: Because Larry Ellison, Oracle’s CEO, thinks the company can profit from it.

You see there are two ways of looking at open source, as Eben Moglen, founder of the SFLC (Software Freedom Law Center), explained recently at LinuxCon. Moglen said, “The patent crisis is not going to go away. We’re now in a situation — after the Bilski decision — where clarity on the patent situation is not coming anytime soon.” And, “The patent system is built for secrecy and for trouble-making — it’s not a pro-innovation system.”

Because of this, Oracle decided to make hay while they could with its aging Sun Java patents. But, why did they choose this way? Well, Moglen answered that question as well even before anyone knew that Oracle was going to sue anyone.

Meanwhile we continue to gather more stories about the SUN/Java patents being part of a joke [1, 2]. Here is a new cartoon about those patent jokes and also a new article.

Sun engineers once ran an unofficial competition to see who could get the “goofiest” invention past the US patent office, according to former Sun man and Java founder James Gosling.

In suing Google over its use of Java on Android, Oracle is waving seven Sun patents, and one of them carries Gosling’s name. In a blog post sparked by the suit, Gosling says Sun didn’t pay patents much heed until the company was successfully sued by IBM for infringing on its so-called RISC patent. Then Sun went on a “patent binge”, and yes, this included some less-than-serious filings.

In later posts we are going to show that the Oracle case is technically weak [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13].

08.17.10

Oracle Action Could Cause Migration to GNU/Linux (at Expense of Solaris) and Help Vilify Software Patents

Posted in GNU/Linux, Google, Java, Oracle, Patents, SUN at 1:15 pm by Dr. Roy Schestowitz

Coffee book session

Summary: By spilling coffee Oracle scares Solaris users, upsets the GNU/Linux community, and helps show what a joke (literally) software patents are

THE ORACLE lawsuit is clearly bad news [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12], but let’s find some positive things that can happen as a result of this ludicrously suicidal action.

Oracle is in many ways shooting itself in the foot. First of all, Oracle is harming Java — not helping it — by intimidating existing Java users (while claiming to fight for Java’s integrity). Secondly, Oracle pisses off many of the world’s developers, namely Free software developers (article from Katherine Noyes is an accumulation and Dana Blankenhorn takes it too far). Thirdly, by pissing off Java users and developers, in addition to betraying OpenSolaris, Oracle may only be pushing Solaris users right into GNU/Linux. To give a potential new example:

My opinion on OpenSolaris, Oracle and all open source Sun software

[...]

I will admit that this is most likely where I will end my use of Solaris, unless Oracle surprises the world and continues to maintain the type of quality that Sun brought to the operating system.

Regarding the claim about Java, this is where experts agree. Oracle is shooting its own foot, having bought a company whose stock symbol is JAVA (for no less than billions of dollars).

Oracle is suing Google over the use of Java in Android and that may change everything about Java and open-source development.

That’s one heck of a claim. Unfortunately, the experts agree.

Earlier today we wrote about the revelation that patents were somewhat of a joke inside Sun and elsewhere. It’s a hot news item at the moment. TechDirt writes:

Why The Oracle Java Patents Were Literally A Joke Played By Sun Engineers

[...]

While that patent that Gosling names isn’t included in this particular lawsuit, but others have noticed that one of the patents (RE38104) is a Gosling patent.

Of course, it’s easy to point out that the folks named on the patents are claiming themselves that the patents were part of a joke to see how bad the patent office is. But, you can take it to another level altogether, and have folks who actually know quite a bit about the technology go through the patents one by one and explain why each of them is a total joke.

This is yet another in an exceptionally long line of examples of what a complete mess our patent system has become. I’m curious if the patent system supporters out there can come up with some sort of way to defend the patent system in this particular situation.

Jan Wildeboer has this to say:

Oracle’s next target? Power switches

[...]

Yes. Remote power switches. James Goslin filed for a patent on remote power switches. And he/SUN got it. What originally was a joke, as the “inventor” explains here:

There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn’t nearly the goofiest.

is now potentially a fortune for Oracle! If the play their cards right, millions and millions of infringing power switches must be destroyed!

As Groklaw has already found out and Pogson points out, Oracle made the same mistake as SCO, lending support to Android whilst also attacking it.

It appears as though the left hand does not know what the right hand is doing at Oracle. This is not unique to Oracle. Any organization of size will have this happen. I cut my left hand with a saw held by my right hand once and I am one.

It appears that the left hand, say the bosses and their legal advisors, were figuring out what to do about Android vis a vis Java, software patents and all that. It appears that the right hand, say the geeks in charge of certifying stuff for Java, certified Berkeley DB, JE, to run on Android…. Berkeley DB is a good database for smartphones because it is small and efficient. It has less overhead than some SQL databases.

This ought to weaken Oracle’s case, at least in the eyes of outside observers.

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