DESTROY THIS MAD BRUTE – Enlist U.S. Army” is the caption of this World War I propaganda poster for enlistment in the US Army. A dribbling, mustachioed ape wielding a club bearing the German word “kultur” and wearing a pickelhaube helmet with the word “militarism” is walking onto the shore of America while holding a half-naked woman in his grasp (possibly meant to depict Liberty). This is a US version of an earlier British poster with the same image. Dated ca 1917. [source: Wikipedia]
Summary: Why software patents should be confined geographically, as Microsoft mostly manages to extort Linux distributors in few places that acknowledge patents (monopolies) on algorithms
LWN, one of the best Linux sites out there, says that In Re Bilski means “business [method patents] as usual” (that’s the headline).
“Business method patents nearly bite the dust,” says SCOTUS Blog in the headline. In summary:
Reflecting on Justice Stevens’ lost majority opinion in Bilski
Brad Feld, a critic of this system [1, 2] with a long series of rants about software patents, previously wrote about “Why Bilski Really Means That Software Companies should leave the US” (snippets in Digital Majority).
The problem is made greater when countries other than the United States become equally hostile towards software developers and more friendly towards their lawyers.
According to this patents blog, there are changes in Germany that almost overlap horrible news about the Siemens case [1, 2, 3, 4, 5] and even Microsoft’s FAT patent (upheld in Germany).
The German Federal Supreme Court (Bundesgerichtshof) has recently made clear that every court has to take into account preceding decisions of the European Patent Office (EPO) and of courts of other contracting states to the European Patent Convention (EPC) if these decisions essentially concern the same questions. Although there is no principle of precedence in Germany – neither in respect of German nor of foreign decisions –, the recent ruling of the Federal Supreme Court (Bundesgerichtshof, 15 April 2010, Xa ZB 10/09 – “Walzenformgebungsmaschine”) requires more than just regarding other decisions with favour. Every court has the obligation to deal with the arguments brought forward in other – German, EPO or foreign – decisions.
Two years ago it was a Symbian-related case that seemingly brought software patents into Europe via the UK. Earlier this year Germany’s legal system was named as a similar type of culprit and it’s important to watch and report these precedences. According to this report, DENSO, which is based in Japan (where software patents are legal), has just signed a patent deal with Microsoft. Linux is not mentioned at all, except by The Register which brings TomTom‘s case into it (gymnastics in logic?):
Microsoft scored yet another patent licensing deal yesterday, this time with automotive tech firm DENSO Corp.
Famously, Microsoft’s original court allegations over the three file management patents involved TomTom’s use of the Linux kernel, and according to Redmond at the time the settlement provided TomTom with coverage under those three patents in a way that was compliant with TomTom’s obligations under the General Public License Version 2 (GPLv2).
Many people must have noticed by now that Microsoft is capable of signing Linux-hostile software patent deals in the few places other than the United States (where Xandros, Linspire, and Novell are/were based) that acknowledge software patents. Examples include Fuji Xerox, Turbolinux, Kyocera Mita, and I-O Data (based in Japan too). It is therefore important to ensure that software patents never reach Europe, not in any formal sense anyway.
Korean giants like Samsung and LG have sold out to Microsoft as well (software patents are arguably valid over there). These two companies pay Microsoft for Linux on any items they sell, so it’s not clear why some Linux proponents are jubilant:
LG, Samsung big on Android
And now most other mobile phone makers, and those readying to ship tablet PCs, are embracing Android. Among them are LG and Samsung both of which are on the brink of releasing Android-based devices.
Microsoft makes money from those. It is better to buy an Android handset from Motorola, for example. █
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Summary: How to put Microsoft’s and Novell’s Mono where it belongs (the garbage can)
SOMEONE has just published these instructions for removing Mono from the Ubuntu distribution of GNU/Linux and one reader of ours wrote an ode about Mono earlier today:
Life with Mono – Mononono
They sold us it was free
>From someone else’s claims
The code began to show
And no one spoke at all
But when I asked to Novell,
If I’m protected…
I just don’t know what to do
Brought us a perfect doom
F-Spot, Banshee and a paint
Made us target for threats
But if you still trust MS
Then you are a complete…
I just don’t know what to do
I just don’t know what to do
For reasons we explained before, Mono is a gift to Microsoft and a Trojan to GNU/Linux. Even Canonical's CTO is aware of the issues associated with Mono. According to this uncertain post from Groklaw, Microsoft’s preparations for lawsuits against GNU/Linux (like SCO and later TomTom) may take a long time to ‘cook’ before action is taken. Groklaw’s post uses evidence that we covered a year and a half ago [1, 2, 3, 4], thanks to Comes vs Microsoft exhibits.
What did Microsoft know about SCO’s plan to attack Linux, and when did it know it? And was it a force behind it?
But now, thanks to a volunteer working on doing the exhibits in the Comes v. Microsoft antitrust litigation as text, we find an email thread in Exhibit 8953 [PDF] where Microsoft employees, including the managing director of Microsoft in India at the time, mention SCO in a discussion about heading off the Linux threat in India. The emails are dated September 11, 2002. Given the date, I believe this opens up the question of Microsoft’s involvement once again. At a minimum, it needs clarification. If it doesn’t demonstrate Microsoft knowing about SCO’s plans before they unfurled, what does it mean? I’d like Microsoft to tell us. Because I have a lot of questions about the email thread.
If you recall, EDGI was about pushing Microsoft in India so as to head off Linux and StarOffice use there in government and education. This email says Bill Gates thought they should just give away their software in India and wherever necessary to head off the threat, and that is part of what is being discussed, because some disagreed about giving it away for free. But EDGI was not restricted to India; it could be implemented wherever needed.
I believe this exhibit may be a smoking gun. At a minimum, it calls for clarification, and if and when SCO v. IBM starts up again, I believe it could provide a basis for limited discovery on this very topic or if Michael Anderer is put on the stand, it opens up a fruitful thread. Regulatory bodies are also completely free to investigate whether it was indeed Microsoft using SCO as an anti-competitive weapon against Linux in violation of antitrust law.
The email mentions Novell, SCO and Trishul, and I thought it might be referring to an inside name for the strategy, since that is the name of a Trident air defense missile (“The Trishul air-defense missile is intended to counter a low level attack with a very quick reaction time and has an all weather capability.”), but it is also possible it’s referring to a Microsoft employee who heads up the Runtime Analysis & Design research group, so I’ve written to him asking him which it might be or if he can clarify the email. Meanwhile, take a look. The reference to Novell is more puzzling, but it is certainly possible, given the evidence that SCO thought Novell would join them, that Microsoft back then thought so too.
This fascinating part of an antitrust exhibit about EDGI and the mentioning of SCO was covered by Techrights last year, but for those who are interested in a detailed analysis and some background, the above will do. Mono — like FAT — is a form of an ambush. Microsoft recently validated a FAT patent in Germany. But Mono is not just about software patents; it’s about controlling developers and it’s developed/coordinated by a Microsoft MVP. █
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Summary: Software patents apparently encounter new barriers in the USPTO, whereas in Europe there is a reversal which seems to contradict EPO rules
Microsoft’s business model currently depends on software patents, which is why it has hired lobbyists and recruited front groups to lobby for them all around the world. Yesterday we used Hugo Lueders (CompTIA) as an example, not a scapegoat. CompTIA has lobbies for software patents in Europe even this month.
According to Benjamin Henrion, the president of the FFII (Europe-based), having seen some months ago that the Bilski decision started killing software patents, there might be more of the same. Henrion points to this news and asks: “USPTO starts rejecting software patents?”
From the source:
BPAI Remanding Cases Involving Computer-Oriented Means-Plus-Function Claims
In Ex party Rodriguez, the BPAI rejected a patent applicant’s means-plus-function (MPF) claims as indefinite for failing to provide any corresponding structures in the specification beyond a general purpose computer. That decision followed the Federal Circuit’s Aristocrat holding that “simply disclosing a computer as the structure designated to perform a particular function does not limit the scope of the claim to ‘the corresponding structure, material, or acts’ that perform the function, as required by section 112 paragraph 6.”
This is important news because it’s a software patent on the face of it. A few days ago we saw a film about In Re Bilski being released [1, 2] and there are long discussions about it these days [1, 2]. There is increasing pressure to see the end of software patents.
Ironically, while the US seems to be moving in a better direction, Germany messes up royally by upholding Microsoft’s FAT patent after it was rejected. [via]
The German appeal court has overturned a decision by the German Federal Patent Tribunal to declare Microsoft’s patent for the File Allocation Table (FAT) file system invalid. In judgement number X ZR 27/07, handed down on Tuesday, the tenth civil division of the Karlsruhe-based court confirmed the enforceability of the company’s commercial rights in Germany. It has not yet published its reasoning, but has confirmed the decision in a short press release (German language link).
Some readers have told us about this disruptive development because it relates to the TomTom case and it affects Linux. On the face of it, Scharen is involved but it might be Richter Scharen, not Uwe Scharen, whom we consider to be in Microsoft's fold. █
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Summary: Bezos and Ballmer have more in mind than just Windows preference, ‘Linux tax’, and software patents; they also set dangerous precedence in the EPO
A FEW days ago we showed that Amazon does not care about Free software and that its deal with Microsoft was an attack on GNU/Linux [1, 2, 3]. Amazon — now filled with former Microsoft executives — is helping Microsoft’s cause against GNU/Linux, using software patents. Nick Farrell takes Glyn Moody’s scary headline (which we criticised last week) and turns it into another scary headline that says “Microsoft might be planning a patent attack on Linux” (it’s an exaggeration, but Microsoft has already sued TomTom, which is based in Europe).
“Amazon — now filled with former Microsoft executives — is helping Microsoft’s cause against GNU/Linux, using software patents.”Amazon’s history with regards to software patents is very bleak (not to mention remote deletion, DRM, and SaaS). In particular, Amazon has been accused of making a mockery out of the system by pursuing a monopoly on “one-click shopping” in several countries and continents. It turns out that Europe too is included. The president of the FFII cites this post and says that the “EPO validates the Amazon One-click cousin patent (send as a gift), proof that they grant software patents in Europe”
For those who needed another reason to boycott Amazon, here it is. Microsoft is doing the same thing to the EPO and even brags about it. They found workarounds, so they fool the system and ignore the rules.
In other patent news we have:
• UK keeps three times as many patents secret as the US
UK patents are being declared state secrets more than three times as often as those filed in the US, according to information released to New Scientist.
An average of nine secrecy orders were imposed for every 10,000 patents filed in the UK since 2003, compared with less than three per 10,000 filed in the US, figures released for the first time by the UK Intellectual Property Office (IPO) reveal.
• MBTA sued for patent infringement over e-mail alerts on late trains, buses [via]
A pair of foreign companies today sued the MBTA, alleging the system it uses to notify passengers of late trains and buses violates two patents they hold for compiling information on the whereabouts of vehicles and then notifying people of their status.
• False Marking: Lobbying against the Senate Bill
The false patent marking law imposes a fine on companies that label unpatented products as patented “for the purpose of deceiving the public.” Currently, the law allows any citizen to sue false markers on behalf of the federal government and any fine awarded by the court is split between the citizen who brought the case and the government.
Patent law needs reform or abolishment. It offers no value to programmers (they already enjoy copyrights) and it jeopardises many people's lives. █
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“That’s extortion and we should call it what it is. To say, as Ballmer did, that there is undisclosed balance sheet liability, that’s just extortion and we should refuse to get drawn into that game.”
Summary: Why Microsoft’s “extortion” is a serious offence that mustn’t be overlooked; How Free software deals with software patents at present
CHIN Wong from the Philippines is an excellent journalist, but in his latest column he seems to have gotten soft on Microsoft. In writing about Steve Ballmer's potential departure he asserts the following about software patents:
Would you fire Steve Ballmer?
A US federal appeals court upheld a $290-million judgment against Microsoft Corp. and ordered it to stop selling MS Word unless it removed code that violated the software patent of an obscure Canadian company, i4i, that sued it in Texas and won.
The ruling is ironic, given Microsoft’s use of software patents earlier this year to bludgeon TomTom, a Dutch maker of car navigation systems, into settling over its use of the Linux kernel. Ballmer has bellicosely proclaimed that the kernel violates several Microsoft’s patents and has threatened to sue developers and users alike over its use. The company’s suit against TomTom in February was the first time it tried to enforce these patents against the Linux platform.
The author focuses on the TomTom case but misses the more important point about Microsoft using racketeering tactics, which ought to send people like Steve Ballmer to prison (and bring Bill Gates back to court for crimes that he too had helped commit and initiate).
Over in India, a new article from Shree Lahiri makes the decent proposition that “Freedom of software [should be treated as] our birthright” and he also acknowledges Richard Stallman, crediting him in part for the protests against software patents. Lahiri writes:
Freedom of software is our birthright
Tracing the history of free software, Abhijit said, “In 1984, Richard Stallman started the Free Software Foundation and spent most of his time advocating for free software, as well as campaigning against both software patents and what he sees as excessive extension of copyright laws.”
Speaking of Stallman’s contribution to saner law, where are OIN, Linux Foundation and other IBM fronts when it comes to just abolishing software patents? They have other strategies in mind. The FSF and FFII seem to be among very few who are actively committed to the cause. The EFF’s squashing strategy and Peer2Patent’s gardening or voluntary peer review process are still considered somewhat controversial. Here is a new article from The Register that in some way legitimises software patents for the same reason; by labeling them “good” and “bad” (mostly bad) it tacitly claims that some of these patents are acceptable. OIN very explicitly takes this point of view, whereas for Peer2Patent it is still just implicit.
The best (of the worst) patent claims of 2009
El Reg is always eager to lap up the sad, eerie, and unusual of the bunch as they fall into our sights. We’ve gathered up a few of our 2009 favorites published in honor of the year’s end.
A patent is a monopoly, based on the words of the head of the USPTO. Schools rhetorically teach that monopolies are harmful to capitalism, so what gives? More importantly, why is there no police involvement when these monopolies are (mis)used for racketeering [1, 2]? To ignore this is to accept that Microsoft is above the law. █
“IP is often compared to physical property rights but knowledge is fundamentally different.”
–IP Watch on Professor Joseph Stiglitz
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Summary: Patent news from the United States, Europe, and a middle-eastern nation
Nokia and Apple are two patent monsters that we have warned about for years. They are now clashing with one another, so it’s mutual and counter-productive.
Responding to a lawsuit brought against the company by Nokia, Apple® today filed a countersuit claiming that Nokia is infringing 13 Apple patents.
Apple’s response is covered in many news sites [1, 2, 3] and even the Web site of Miguel de Icaza, who refused the see the writings on the wall when Microsoft sued TomTom (and before the FSF made its famous statement regarding Mono).
Over in the UK, the government is doing something rather bizarre with patents:
On the assumption that this is not a practical joke, it now seems that the British government is set to tax the fruits of research and development in order to fund … research and development. What a wonderful incentive to invest, particularly when other countries are encouraging R&D by doing the exact opposite. Merpel says, don’t worry: Britain’s best tax brains will soon find ways of showing that the income in question isn’t derived from patents at all, and the government’s coffers will be none the fuller.
See the comment from Sun’s Simon Phipps (a Brit).
Another Brit, Glyn Moody, has found even more bizarre stuff:
Objectivists: ‘All Property is Intellectual Property’
In other words, if you take a principled approach to IP, you endorse a system that condemns society to stagnation and death. So most proponents, like Rand, realizing this, start making ad hoc, unprincipled, utilitarian exceptions to avoid the most obvious, harsh consequences of a principled implementation of their confused IP ideas.
“Greed knows no bounds,” claimed Microsoft some years ago. It was referring to lawyer fees.
Over in Israel too, the threat of software patents is now looming.
As I have explained in this blog in earlier articles, I consider the copyright double protection idea is problematic since copyright protects the embodiment of the idea and not the idea itself. Why shouldn’t a software invention be protectable against reengineering? Is a 70 year protection against copying of any value in a field where a generation is usually 2 years? Considering software not technical is ridiculous. software is rightly considered an engineering discipline. Since algorithms can be hard-wired into chips or by a machine with valves, the concept of software being different from hardware is somewhat arbitrary. Nevertheless, Lord Justice Jacobs has presented powerful arguments as to why software patents are not in the interest of promoting progress and there is a large open-source community.
Abolishers of software patents (led by the FSF’s Ciarán O’Riordan) have already built this resource page about the subject.
The Israeli Patent Office (IPO) has launched a consultation on whether or not to allow software patents, with a February 2010 deadline. I’ve put the details at the end of this post, but first some background.
* The IPO consistently rejects software patents and business method patents. Examples:
o The 2005 rejection of the 142049 website patent
o The September 2006 rejection of the 131733 sales coupons patent
* Patent Attorney Ehud Hausman, with the support of international pro-swpat lobby group AIPPI, has been trying since 2007 to change this.
* He claimed in May 2008 to have partly convinced the IPO to grant software patents (but no change on business method patents). I’ve no third-party confirmation of this.
Who is funding these lobbyists? They are working for their own wallets. █
“Plager said he regretted the unintended consequences of the decisions in State Street Bank and AT&T. Those rulings led to a flood of applications for software and business method patents, he noted. If we “rethink the breadth of patentable subject matter,” he said, we should ask whether these categories should be excluded from patent protection.” —US. Senior Judge S. Jay Plager, speaking at a symposium at George Mason University
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Summary: The nastiness of patents puts itself up on display and herein we share the truth about this ill system, based on the latest news alone
THIS is a collection of news items that affect Free software by means of law.
Microsoft and Rambus Ambushed the Industry
Microsoft’s de facto PR machine is working to create another patent scare. Mary Jo Foley’s role was mentioned earlier and Ina Fried follows with promotion of exFAT patents.
The File Allocation Table (FAT) format is also licensed out by Microsoft, although its patents there have been the subject of contention, particularly since many distributions of Linux include the FAT formats.
This is also covered by the Microsoft bunch at Ars Technica (Emil) and other Microsoft reporters.
In February 2009, news broke that Microsoft had filed a patent infringement lawsuit against TomTom, alleging that the device maker’s products, including some that are Linux-based, infringe on patents related to Microsoft’s FAT32 filesystem. In March 2009, Microsoft and TomTom settled their controversial patent dispute, TomTom licensed the patents from Microsoft, and stated its intent to remove from its Linux kernel the code that is covered by the patents.
We have covered the TomTom case very extensively and also explained why Microsoft had ambushed the market with FAT. Microsoft is not alone though.
Rambus used submarine patents (or an ambush) in order to penalise all of its competitors [1, 2, 3, 4, 5, 6, 7, 8, 9, 10]. Rambus was brought to court over this type of abuse and right now it is trying to escape punishment in Europe.
The American memory chip designer has been fighting allegations that it intentionally concealed that it had patents and patent applications connected to DRAM chips, which later became an industry standard. It’s accused of charging abusive licensing rates for the technology once its “patent ambush” was sprung.
In an hypothetical industry that prioritises progress, Rambus and Microsoft deserve to have the patents in question rubbished and all royalties previously paid to them refunded over time. If the patent system becomes a tool of deception, then The Christian Science Monitor is probably right and the patent system (including USPTO) deserves to be rubbished along with all those patents. To quote Richard Stallman (regarding EPO earlier this year [1, 2] ): “The European Patent Office is a corrupt, malicious organisation which should not exist.” Stallman argues that if it stands in our way, then we should “get rid of it too.”
RPX: Return of the Uber-Patent Harvester
We previously wrote about RPX in [1, 2, 3, 4, 5, 6, 7]. In short, it’s a useless behemoth that only accumulates patents and then offers “protection”. Georg Greve has just described RPX rather politely by writing “When your business plan is a euphemism for “protection racket”…”
Greve is the founder of the Free Software Foundation Europe (FSFE) and he links to what he describes as a “Good article on the reality of software patents.”
Kleiner Perkins Caufield & Byers is well known for the venture capital it brought to great innovations involving computers, health and energy. One of its latest startups is based on an entrepreneurial idea that may or may not be great but is very interesting: helping companies hand over money for mostly bogus legal claims involving patents.
This particular startup, RPX, doesn’t describe itself that way. In fact, it makes a good case that its goal is to help companies, many of them in the tech industry, make the best of the bad situation that is the U.S. patent system. The fact that patent holders and lawyers will end up with money they don’t deserve reflects nothing about RPX but a lot about a system filled with rot.
If you think patents protect plucky innovators and their groundbreaking inventions, you haven’t been paying attention. Patents have evolved into an extortion scheme that hurts real inventors far more than it helps them.
Of course it does. Patents are about protecting monopolies, not protecting innovation. It’s a protectionist measure where the “protected” subject is revenue, not science. It is about investors, not inventors.
There is this new transcript of Richard Stallman on software patents:
The Danger of Software Patents
This is the transcript of a talk presented by Richard M. Stallman on 8 October 2009 at Victoria University of Wellington.
There are also videos of previous Stallman talks which cover the same subject.
Patents Versus Survival
On a couple of occasions earlier this week we wrote about the harms caused to the environment by patents. Check out this new report:
Preservation of IP: One of Many Goals in Copenhagen
The Chamber’s Global Intellectual Property Center (GIPC) has been front and center in this debate, and our position is clear: if governments are serious about addressing climate change, and all agree that new technologies are a vital part of the answer, then IP laws and rights need to be protected in any Copenhagen agreement. Indeed, in our view, a Copenhagen Summit with NO mention of IP at all is a successful conclusion. Current international laws and norms are working, and need to be preserved.
To which Glyn Moody responds with:
Got that? Stuff the environment, we’ve got to protect the *important* things in life, like intellectual monopolies…
Indeed. Here is a touching report on the subject. █
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Summary: Apple’s software patents harm/distract the Web and Linux; Microsoft’s software patents harm/distract Linux; The Gates Foundation makes more investments in patents
EARLIER THIS year we wrote about Apple's abuse of the Web using software patents (Apple also threatened to sue over Linux devices). What’s troubling is that both Apple and Microsoft have a chair at the HTML Working Group (W3C) and Apple can be quite a bit of a bully, which now leads the W3C to modifying APIs.
The W3C has spent the last three months poring over Apple’s patent on remote updating, and the web standards organization thinks the patent can be avoided by careful wording and tweaking a couple of APIs.
Software should not be patentable in the first place and the above is a waste of the W3C’s time. What is Apple trying to ‘protect’ anyway? It also publicly attacked Ogg.
NewsWeek has this new report which targets the hype behind the iPhone and the reality behind developing for Apple [via].
Seeking fortune and fame, entrepreneurs rushed to create programs for Apple’s App Store. That’s not always what they found.
So basically, there may be no more money contributing to Apple’s ecosystem than there is in helping Free(dom) software. It was similar with Palm OS.
Moving on to some other software patents, our reader Yuhong Bao claims that Microsoft’s loadable module [1, 2, 3, 4, 5, 6, 7, 8], which was originally a GPL violation, completely hid this important item of news about the workaround for Microsoft’s FAT LFN patent. From the summary:
Only hours after Microsoft’s Hyper-V Linux patch, tridge submitted a revised workaround patch for MS’s FAT LFN patents. If you don’t remember, the original patch was in response to MS suing TomTom over these patents. This revised version provides better compatiblity, particularly with Windows 98, portable MP3 players, as well as mtools.
More and more people are becoming uncomfortable with the patent system, which a writer at Information Week is now denouncing. His complaint is summarised as follows:
Let’s remember the original purpose of the patent system: to encourage innovation and its broader benefits, not to make people rich.
As Gates and Microsoft grow closer to bankers, worth noticing is this item in the news about JPMorgan and the Gates Foundation hooking up. The Gates Foundation also does more of its notorious investments in patents (i.e. monopolies).
The Gates Foundation funding is for a global decision facility for patents and how they impact on innovation.
The Gates Foundation also invests heavily in patents on life, patents on agriculture (GM crops/foods), and Gates himself started a patent-hoarding firm.
This relates rather nicely to what we wrote this morning about Mirosoft and swine flu. The following segment of a talk provides more insight into the real impact of patents. Patents are not what people are led to believe they are. █
“While I recognize the great value and importance of prescription drugs and strongly support a continued U.S. focus on pharmaceutical research and development, our nation’s seniors cannot be asked to subsidize the drug costs of other wealthy industrialized nations any longer.”
–Michael K. Simpson
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