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IRC: #boycottnovell @ FreeNode: Sunday, May 02, 2021

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schestowitz__> Dear RoyMay 02 04:52
schestowitz__> May 02 04:53
schestowitz__> Thanks for letting me know. I am glad you are back on Twitter - this isMay 02 04:53
schestowitz__> the most influential social medium for political issues.May 02 04:53
schestowitz__> May 02 04:53
schestowitz__> Take it easy now and I will write again on Monday and will send you someMay 02 04:53
schestowitz__> lecture slides regarding potential liability around communications incl.May 02 04:53
schestowitz__> twitter posts, etc.May 02 04:53
schestowitz__Thanks.May 02 04:53
schestowitz__Today we'll resume our podcast, which we started 11 years ago and put in 'hiatus' mode for the past 5 years.May 02 04:53
schestowitz__I will let you know if  Twitter does something funny again.May 02 04:53
schestowitz__> Fantastic, I'll await your further contact regarding Mumble.....I takeMay 02 05:07
schestowitz__> it you are not a fan of Streamlabs?May 02 05:07
schestowitz__I will be at home all day today, the wife works from home daytime, so we can record any time. We should discuss in IRC.May 02 05:07
schestowitz__After 11 years we might even won't to pick a theme jingle, custom-made for our show. If you know some sound pro (I know some art pros who help us, but not audio pros). Maybe I can even streamline the editing such that there won't be a need to open an editor (I installed audacity last night) and instead seam together the main track, intro, outro from the command line.May 02 05:07
schestowitz__The recording quality I heard last night (static file) was very good, better than before, though I noticed sometimes you move closer/away from the mic, in which case the clarity varies. We need to test and adjust before recording. For myself, I've found elevating the laptop mic to bring it closer to my mouth can help. It has noise removal filter software with threshold all set.May 02 05:07
schestowitz__Content-wise, we can go through some of the very same topics we chatted about last night. The second time is always better because we already know the matters at hand. I might even listed to the convo (recorded) and take note of things to cover.May 02 05:07
schestowitz__If we streamline it and make it very time-efficient, we'll record a lot painlessly and rapidly.May 02 05:07
schestowitz__Speak later...May 02 05:07
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schestowitz__>> I don't know yet if you wish to have that address advertised forMay 02 08:47
schestowitz__>> potential future guests, maybe even RMS.May 02 08:47
schestowitz__> I'm not sure.  If needed, it would be a piece of cake to set up the sameMay 02 08:47
schestowitz__> thing over on your RPi too.  Though I would recommend adding a new DNSMay 02 08:47
schestowitz__> entry for it so that it can be migrated as needed separately from Gemini.May 02 08:47
schestowitz__> May 02 08:48
schestowitz__>> As you may have noticed, RMS is not doing interviews with anybody. SomeMay 02 08:48
schestowitz__>> tried to approach him, but it never yields anything.May 02 08:48
schestowitz__> Hmm.  Outreach is something which is important and is one of the thingsMay 02 08:48
schestowitz__> he is good at.  I hope he is using his bonus time to build up the FSFMay 02 08:48
schestowitz__> and make it future-proof to the extent he can.May 02 08:48
schestowitz__> May 02 08:48
schestowitz__> Or maybe he's out at his cabin on the front porch in an old rockingMay 02 08:48
schestowitz__> chair with a blanket and a shotgun on his lap, next to his jug?May 02 08:48
schestowitz__> May 02 08:48
schestowitz__>> I could use your opinion on the following (or no opinion if you want toMay 02 08:48
schestowitz__>> "pass"):May 02 08:48
schestowitz__> [snip]May 02 08:48
schestowitz__> May 02 08:48
schestowitz__> It would be interesting if it could be investigated without antagonizingMay 02 08:48
schestowitz__> Freednode.  Like with really touchy topics, it is essential to haveMay 02 08:48
schestowitz__> solid confirmations of everything before publishing anything, even hints.May 02 08:48
schestowitz__> May 02 08:48
schestowitz__>> [04:27] <xxxx> debian crossover and gnome foundation crossover is inMay 02 08:48
schestowitz__>> every instance ive seen been the common association of every actor involvedMay 02 08:48
schestowitz__> We'd never have a big enough data pool for it to be useful, but theMay 02 08:48
schestowitz__> interactions of individuals within projects and between projects couldMay 02 08:48
schestowitz__> be mapped by tools such as gource.  It probably would not be a good useMay 02 08:48
schestowitz__> of time though.May 02 08:48
schestowitz__> May 02 08:48
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schestowitz__> Fuck yeah. Give me something to put into some quotes if you want. It’s your word so far as I can tell and this method of hijacking your own watchdog groups is prominent in various industries. May 02 15:30
schestowitz__Let's coauthor an article on this particular aspect alone, as it merits its own set of examples.May 02 15:30
schestowitz__> I think this is the most glaring example of entryism on Microsoft’s behalf that I’ve seen in a long while.May 02 15:31
schestowitz__There are more glaring examples.May 02 15:31
Techrights-sec2 02 15:53
-TechrightsBN/ | LES CAMUSARDS (@CamusardsL_unis): "…" | nitterMay 02 15:53
schestowitz__Show notes/schedule 02/05/2021May 02 15:59
schestowitz__Morning!May 02 15:59
schestowitz__As promised here is my schedule for today's show.  Please see xxxxxxxxxxxxxxxxx.  Once the show is complete I will be padding out the listed topics so that they are complete show notes of what we got through.May 02 15:59
schestowitz__Obviously I'm leaving control of timing up to you, but I would suggest for a return show we would aim for a 1 hour 15 - to the point, welcome back and statement of interest.May 02 15:59
schestowitz__The theme I think could do with an update/refresh but maybe for the first show back we could keep it as it is and then start the next show as the new series, giving more time to find something suitable?  I've a few ideas......May 02 15:59
schestowitz__Once this episode is done I'm going to try to get Mick West on the show (coder behind Tony Hawks game and now researcher, podcaster, debunker)  but I've a huge list of big names that are relevant and will add value to the show.May 02 15:59
schestowitz__I'm in IRC. I'll have my xxxxxxxxxxxxxxxxx and then be around.May 02 15:59
schestowitz__Recording time is completely up to you.May 02 15:59
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schestowitz__ 02 23:21
-TechrightsBN/#boycottnovell-@Flavia0847: @schestowitz @FOSSpatents Why do developers create apps for them? They literally wipe out their own market with ev… 02 23:21
-TechrightsBN/#boycottnovell-@Flavia0847: @schestowitz @FOSSpatents Why do developers create apps for them? They literally wipe out their own market with ev… 02 23:21
schestowitz__"Why do developers create apps for them?  They literally wipe out their own market with every new OS upgrade. Nobody produces electronic waste like Apple."May 02 23:21
schestowitz__ 02 23:21
-TechrightsBN/#boycottnovell-Unexpected responseMay 02 23:21
schestowitz__ 02 23:55
schestowitz__"May 02 23:55
schestowitz__Two thoughts (by someone not legally qualified)May 02 23:55
schestowitz__1. Would it matter if the novelty could not be determined by the hypothetical observer from his vantage point? For instance if the novelty related to having two types of seed planted alternately, the invention being the supply of seeds to the seed drill.May 02 23:55
schestowitz__2. S. 51 (30) of the Patents Act 1949 provided that:May 02 23:55
-TechrightsBN/ | Hacon HHJ and the Seed Drill: Intentionality in prior use (Claydon v Mzuri, [2021] EWHC 1007) - The IPKatMay 02 23:55
schestowitz__“An invention claimed in a complete specification shall not be deemed to have been anticipated by reason only that, at any time within one year before the priority date of the relevant claim of the specification, the invention was publicly worked in the United Kingdom…..if the working was effected for the purpose of reasonable trial only and if it was reasonably necessary, having regard to the nature of the invention, that theMay 02 23:55
schestowitz__working for that purpose should be effected in public”. One wonders why such a provision was not continued in the 1977 Act.May 02 23:55
schestowitz__ReplyMay 02 23:55
schestowitz__RepliesMay 02 23:55
schestowitz__AnonymousWednesday, 28 April 2021 at 10:47:00 BSTMay 02 23:55
schestowitz__The question of enablement is certainly a relevant issue. However, in this case it looks like the judge found that a distant observer would understand how the invention worked simply from sight. The typical way this issue is approach in FC exam question is that 'a black box' is publicly disclosed, where the input and output are visible, but the workings unseen. Assuming that the 'invention' lies in the workings rather than the May 02 23:55
schestowitz__output itself, that would not be an enabling disclosure.May 02 23:55
schestowitz__Personally I prefer slimmed-down and simple legislation. The problem with provisions like s.51 of the '49 act to which you refer is the vaguety of terms like 'reasonable trial', 'reasonably necessary'. Things like that introduce a great deal of uncertainty into a legal determination. That could well consume whole days of pre-action DD and trail argueing about reasonableness. And I think often that degree of uncertainty will itselfMay 02 23:56
schestowitz__practically deprive a small patentee, e.g., an SME or private inventor, from enforcing patent rights.May 02 23:56
schestowitz__AnonymousSunday, 2 May 2021 at 12:06:00 BSTMay 02 23:56
schestowitz__To xxxxxxxx 27 April, the answer to your question about the incorporation of the provision from the 1949 Act in the 1977 Act is that the relevant sections of the 77 Act are framed to harmonise with the EPC, which has no such provisions.May 02 23:56
schestowitz__One thing that struck me while reading this thread and skimming through the decision itself is that the prior user was supposed to have taken place around 20 years ago. How did it come to light in this litigation?May 02 23:56
schestowitz__ReplyMay 02 23:56
schestowitz__AnonymousTuesday, 27 April 2021 at 11:54:00 BSTMay 02 23:56
schestowitz__Proponents for a grace period will certainly wake up! May 02 23:56
schestowitz__I understand the way the judge argued, but I find the result deeply unfair for the proprietor.May 02 23:56
schestowitz__ReplyMay 02 23:56
schestowitz__RepliesMay 02 23:56
schestowitz__MaxDreiWednesday, 28 April 2021 at 11:50:00 BSTMay 02 23:56
schestowitz__Yes, indeed, a grace period. More trouble than it's worth, is my initial reaction, like the observations of the commenter below on reinstating a test of "reasonableness" on pre-filing trials.May 02 23:56
schestowitz__Fact is though, some farmers are very inventive and come up with commercially very valuable improvements in farm machinery. But soil being what it is (infinitely variable) who knows whether a paper proposal will work without first testing it out with a day's work on real soil? It is "unreasonable" to expect every paper proposal to be exhaustively described, claimed and deposited at the Patent Office, even before a first trial on May 02 23:56
schestowitz__real soil. And it is unreasonable to expect elaborate screens and shrouds to be placed over and around the machine before driving it out of the isolated workshop and into the remote field outside, just in case some oik with a drone and a camera could theoretically have been larking around, in the vicinity, at just the right moment. Come on English patent judges, you can do better than this.May 02 23:56
schestowitz__ReplyMay 02 23:56
schestowitz__AnonymousTuesday, 27 April 2021 at 14:18:00 BSTMay 02 23:56
schestowitz__Scanning through the patent claims, some of the dependent claims appear to be difficult to detect from afar. However, in the judgment, only infringement of claim 16 as dependent on claim 8 was alleged. Claim 16 seems possible to detect from a distance, and it was interpreted quite broadly which didn't help (para 99). Therefore, Claydon seems unlucky in relation to which dependent claims were infringed.May 02 23:56
schestowitz__Another factor appears to be the alleged unreliability of the witness statements (para 92).May 02 23:56
schestowitz__This somewhat distinguishes from the Hozelock case in which the prototype testing process was well documented on video, and where the features in the infringed claims were not seen as obvious to a nearby observer.May 02 23:56
schestowitz__It still seems unfair, and nobody wants to see it become standard practice to dream up all kinds of hypothetical scenarios in which a member of public could have seen the invention.May 02 23:56
schestowitz__ReplyMay 02 23:56
schestowitz__MaxDreiTuesday, 27 April 2021 at 22:19:00 BSTMay 02 23:56
schestowitz__I am a patent attorney who grew up on a farm in The Midlands. I am unhappy about the finding of prior public use and write here to express my discomfort with the decision. The law does not concern itself with trifles, it disregards de minimis facts and when it comes to novelty ought to give some respect to the EPO's established Gold Standard under which the claimed subject matter must be directly and unambiguously derivable from May 02 23:56
schestowitz__the prior disclosure or else novelty is not prejudiced. What is merely "obvious" to the observer does not "count" and is NOT what decides the issue.. May 02 23:56
schestowitz__A disclosure in a factory, in a corner of a book-filled room, or on a public road is one thing. On an empty moor is another, as the decision notes. On that spectrum, where does the open expanse of arable land, relevant here, lie? Closer to that open moor, I say, than to the situations in the precedent cases.May 02 23:56
schestowitz__It seems to have been decisive that there was a public footpath in the vicinity of the machine trial. But the footpath was not popular, rarely used. Consider OS maps of the English countryside. They are littered with markings of old "Rights of Way" unused these days. Read Wainwright's Coast to Coast book, and see how the old master himself found it well nigh impossible to follow these markings on maps in fertile arable country. May 02 23:56
schestowitz__The likelihood of some member of the public walking that particular section of the disused footpath, just at the right moment, and on just the week-day of the trial (as opposed to a Sunday Afternoon), and having a chance to observe the trial, strikes me as so remote, so de minimis, as not to "count" as the basis of a prior "public" use.May 02 23:56
schestowitz__Further, there is the issue what the walker could have derived. The law of novelty ought to hold to its distinction between what is "obvious" from a disclosure and what could have been derived "unambiguously". May 02 23:56
schestowitz__I daresay, that a farm machinery expert, walking the footpath while the machine trial was happening, might have found obvious a lot of constructional details of the machine. But the idea that such a person would derive unambiguously the specific combination of technical features of the claim strikes me as fanciful. To the contrary, that curiosity of that person would have been highly aroused, precisely because i) the machine beingMay 02 23:56
schestowitz__operated was obviously interesting but ii) closer inspection would be felt imperative, because only then could the observer derive and grasp the key features of construction and operation of the curious machine.May 02 23:56
schestowitz__I agree with you, Rose, that the outcome seems unfair. That's because it is unfair. A poor show, I would say. Patent law should accord with what those with a business interest in patent law accept as fair, or else the level of respect for the law is diminished.May 02 23:56
schestowitz__ReplyMay 02 23:56
schestowitz__AnonymousWednesday, 28 April 2021 at 08:32:00 BSTMay 02 23:56
schestowitz__Mind boggling. This area of prior use needs to change.May 02 23:56
schestowitz__ReplyMay 02 23:56
schestowitz__KantWednesday, 28 April 2021 at 14:42:00 BSTMay 02 23:56
schestowitz__This case is in some ways similar to the Unwired Planet case ([2015] EWHC 3366 (Pat) ). There, a disclosure to the standard setting organization the 8th January was available in Hawaii on 7th January, one day before the filing of the priority application. Birss J. (as he then was) came to the conclusion that this disclosure to the SSO was not relevant for considering patentability. May 02 23:56
schestowitz__If a member of the public had access to the disclosure before the filing date, normally this would be considered a relevant disclosure but the judge presumably thought this would not be fair to the applicant.May 02 23:56
schestowitz__In this case, the judge does not seem to have considered "fairness" to the applicant.May 02 23:56
schestowitz__The statute uses the language "made avaialble to the public" yet in the trials there was no intention to make the invention public, distinguishing from the thesis in a library example where the publication is intended.May 02 23:57
schestowitz__Hopefully, an appeal will be filed.May 02 23:57
schestowitz__ReplyMay 02 23:57
schestowitz__MaxDreiWednesday, 28 April 2021 at 19:36:00 BSTMay 02 23:57
schestowitz__This case gets more and more strange, once you start comparing the patent specification with the prior art machine of the Handy US patent. The court found that Handy did not prejudice the validity of the claims. But it looks an awful lot like the claimed machine. If i were that mythical beast observing from the footpath, I should not be able to see whether the machine in the field was a Handy machine or a Claydon machine. Has May 02 23:57
schestowitz__Claydon made his machine 2available"? i suspect not.May 02 23:57
schestowitz__But now let's look at how the leading tine of Handy operates and how the lead tine operates in Claydon. For the court, they operate differently. but it seems to me that they are not different.May 02 23:57
schestowitz__See Claydon, the patent in suit, Figs 7 and 8, reference 106. according to the sentence bridging pages 14 and 15 of the GB B publication, that triangular mass of soil is "broken up" by the "slotter tines" 104. Soil is like that. It is friable. Tines advancing through it break it up. It is not to be confused with the progress of a knife through butter.May 02 23:57
schestowitz__Now look at para 117 of the Decision, second sentence. I think that conclusion by the judge must be wrong. I think Handy's lead tine, advancing through the same material, soil, works that soil just like Claydon's slotter tine.May 02 23:57
schestowitz__Thoughts?May 02 23:57
schestowitz__ButMay 02 23:57
schestowitz__ReplyMay 02 23:57
schestowitz__AnonymousFriday, 30 April 2021 at 16:45:00 BSTMay 02 23:57
schestowitz__The mind boggles. Surely the judiciary must ask themselves what they want the future precedent to be when they make these decisions, and consider any impact? Surely the purpose of the patent system is to encourage research and development of new technologies? And yet here we are told that research is disclosure for anything that can't be tested indoors, more or less. Baffling.May 02 23:57
schestowitz__ReplyMay 02 23:57
schestowitz__MaxDreiSaturday, 1 May 2021 at 09:54:00 BSTMay 02 23:57
schestowitz__Comparison with the opposition to the EP family member (1608214) is interesting. The EP-B was revoked for obviousness and to get there the Board used the same prior publication (Handy) as in the English court. The difference was that the Board combined Handy with another prior-published US patent specification whereas the court in England needed x-exam of the rival experts in soil cultivation to establish the cgk.May 02 23:57
schestowitz__One speaks of "The blind leading the blind". Reading the Decision, my sense is that in this case the x-exam process was toe-curling for the respective clients, infuriating for the rival experts, and frustrating for the judge. My hunch is that the barristers lacked any "feel" for the way soil reacts to tines being pulled at pace (as the saying goes) through it by a powerful tractor that brooks no resistance to its progress, and so May 02 23:57
schestowitz__failed to elicit clear and concise answers from the experts. I suspect the x-exam process left the respective experts deeply sceptical of an English court's techniques for resolving an issue of fact.May 02 23:57
schestowitz__Which is a great pity because the huge costs of going to trial in England can be justified only by England's supposedly far superior forensic fact-finding procedures. I suppose that these procedures work best when the client leaves the litigation team free from any budgetary considerations, free to win the case "whatever it takes". I see that this case was fought out in the IP Enterprise Court, not the High Court. Hmmmm!May 02 23:57
schestowitz__At the EPO, Boards of Appeal are not encumbered by such fact-finding processes, nor by any doctrine of Binding Precedent. One might therefore suppose that the Boards are less likely to get to a result that can be respected. But, hey, read the EPO Decision and decide for yourselves, dear Readers.May 02 23:57
schestowitz__"May 02 23:57
schestowitz__ 02 23:58
schestowitz__"May 02 23:58
schestowitz__Attentive Observer, when you say that Art 69 EPC is not for the EPO, but mainly for post-grant procedures, is it your contention that when the EPO assesses clarity, novelty and inventive step, particularly when assessing the latter two in post-grant proceedings, it should rely solely on the content of the claims, yet the courts when assessing novelty, inventive step and infringement should use the claims as interpreted using Art May 02 23:58
schestowitz__69 EPC and its Protocol, which is mandatory? Or do you suggest that the courts should interpret the claims for novelty and inventive step using just the content of the claims, so as to be consistent with the EPO, and yet use a different method, per Art 69 EPC and the Protocol, when interpreting the scope of the claims for infringement? May 02 23:58
-TechrightsBN/#boycottnovell-Could not resolve host:; Unknown error ( status 0 @ )May 02 23:58
schestowitz__Art 69 EPC and the Protocol both make it mandatory to interpret the claims to determine their scope using the description and drawing. If your approach is correct, I wonder what prompted the legislator to mandate one approach for third parties looking at the claims outside of EPO proceedings and a different approach for the EPO.May 02 23:58
schestowitz__You say 'It should not be required by third parties to look first at the description when trying to understand parts of the claims that have no clearly recognised name.' Why? The legislator clearly intended that third parties should be required to consult the description and drawings when trying to understand what claims mean, otherwise, Art 69 EPC would not say 'Nevertheless, the description and drawings shall be used to May 02 23:58
schestowitz__interpret the claims.' May 02 23:58
schestowitz__And the notion of having to provide more detailed descriptions of parts in claims where those parts have no recognised name is hardly practical and is not likely to lead to concise claims.May 02 23:58
schestowitz__Anyway, I am delighted to discover that you seem to have found so many patents/applications whose claims are such that you can assess novelty and inventive step without consulting the description and drawings; if only a few would come my way.May 02 23:59
schestowitz__"May 02 23:59
schestowitz__"May 02 23:59
schestowitz__I wonder what Attentive Observer would make, then, of the following examples of comments from the Boards of Appeal. Are these boards wrong that the description has a role in assisting the interpretation of claims in post-grant proceedings before the EPO?May 02 23:59
schestowitz__T 274/00:May 02 23:59
schestowitz__"The object of the Protocol, which provides a guide to the manner in which the technical features of the claim are to be interpreted, is clearly to avoid too much emphasis on the literal wording of the claims when considered in isolation from the remainder of the text of the patent in which they appear; and also to avoid too much emphasis upon the general inventive concept disclosed in the text of the patent as compared to the May 02 23:59
schestowitz__relevant prior art, without sufficient regard also to the wording of the claims as a means of definition. This approach to the interpretation of claims must be adopted by the EPO when determining the protection conferred for the purpose of Article 123(3) EPC." May 02 23:59
schestowitz__T 488/97:May 02 23:59
schestowitz__"The EPC rules that the subject-matter of the claims for which protection is sought should be supported by the description (Article 84 EPC) and, according to consistent case law of the boards of appeal, the disclosure of an invention is to be assessed on the basis of the specification as a whole, including the description and the drawings, and not of the claims alone (see for example decisions T 14/83, OJ EPO 1984, 105 and T 169/May 02 23:59
schestowitz__83, OJ EPO 1985, 193). Therefore, when examining the novelty of the subject-matter of claims 1 and 3, the wording of said claims shall not be considered and understood in isolation but in the framework of the overall disclosure of the specification and more particularly in the context of the description.May 02 23:59
schestowitz__As a rule, a claim should normally be clear in the sense of Article 84 EPC and understandable as it stands i.e. the subject-matter for which protection is sought should be understandable without ambiguity from the wording of the claim. However, in opposition and appeal proceedings, when doubts exist about the exact meaning of a claimed feature and when the substance of the independent claims calls for closer consideration before aMay 02 23:59
schestowitz__decision can be reached on the question of patentability of their subject-matter, the question of whether a claim is "clear" must be looked at only as regards the amendments made. Otherwise, the whole content of the specification shall be used to understand the wording of the claim since the provision in Article 69(1) EPC, stipulating that the description and drawings be used to interpret the claims, also applies during oppositionMay 02 23:59
schestowitz__and appeal proceedings (see for example decisions T 23/86, OJ EPO 1987, 316 and T 16/87, OJ EPO 1992, 212)."May 02 23:59
schestowitz__T 16/87: "The provision in Article 69(1) EPC stipulating that the description and drawings (if any) be used to interpret the claims also applies during opposition proceedings when an objective assessment of the content of a claim has to be made to judge whether its subject-matter is novel and not obvious"May 02 23:59
schestowitz__"May 02 23:59
schestowitz__"May 02 23:59
schestowitz__Hello,May 02 23:59
schestowitz__I am interested to heart the views of others on the Actavis case in the scenario where the description was different. I posted the question last week but it may have been censored? It is good to see discussion on this post and Jacob is highly critical of the Actavis decision.May 02 23:59
schestowitz__In a hypothetical scenario, had Lilly defined sodium in the description as "any alkali metal" do people believe the literal interpretation of the claim would have covered alkali metals other than sodium?May 02 23:59
schestowitz__It is important to note that chemists understand 'sodium' solely as the element and not a word capable of broader construction or ambiguity. So, the claim is 100% clear, but the construction based on the description is clearly different, though clearly broader but still clear.May 02 23:59
schestowitz__Thank You.May 02 23:59
schestowitz__"May 02 23:59

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