By
Kevin E. Noonan --
From
the opening sentence of the Federal Circuit's opinion, it is clear that the Court believed that Bayer had claimed more broadly than it was entitled to and
claimed species it had not described, thus failing to satisfy the written description requirement. Regents of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566, 1569 (Fed. Cir. 1997). The Court's language hies back to the Eli Lilly decision from 15 years go, where the Court speaks about limitations on "functional"
claiming rather than structure-based claiming as emphasized by the Federal
Circuit after the Eli Lilly decision. "Bayer
got ahead of the science" according to the Court, and moreover, the
functional terminology used in the claims was inaccurate and Bayer knew it. Indeed, "[w]hen
[Bayer] ultimately sued Dow AgroSciences for infringement, Bayer recognized that
the term used, in its established scientific meaning, did not cover the accused
product (itself different from the particular enzyme whose gene Bayer's
inventors had sequenced), so it argued for a broad functional claim
construction."
The issue here comes down to claim
construction: the only way Bayer could prevail was to obtain a claim
construction broader than its specification supports, which the District Court
refused to do and granted summary judgment of non-infringement to defentant. The Federal Circuit was not about to upset that judgment on appeal.
The patent at issue, U.S. Patent No.
6,153,401, relates to "genetically modifying plants in order to confer
resistance to a commonly used herbicide called 2,4-dichlorophenoxyacetic acid ("2,4-D")." The technology involves producing a transgenic
plant whose genome encodes an exogenous 2,4-D gene wherein the plant expresses
the protein product. The genes
encompassed by the claims arise in bacteria that can convert 2,4-D into
2,4-dichlorophenol (2,4-DCP), which is a non-toxic carbon source for bacteria
expressing 2,4-D. Bayer
scientists cloned the 2,4-D gene from Alcaligenes
eutrophus JMP134 and provided the nucleotide
sequence of the gene. (This was the only
gene disclosed in the patent.) Genes
having activity against 2,4-D were then isolated by functional cloning, wherein
bacteria unable to grow on 2,4-D were transfected with DNA from a library made
with DNA from a bacteria that could grow on 2,4-D, and bacteria comprising
exogenous DNA that had transferred the growth phenotype was selected.
The '401 patent granted in 2000 but the Court notes
that Bayer did not change its nomenclature in the face of this scientific
evidence. Claim 1 of the '401 patent
reads as follows:
A recombinant gene,
comprising
a DNA sequence encoding a
polypeptide having the biological activity of 2,4-D monooxygenase which is
capable of being expressed in a plant, operably linked to
a heterologous promoter capable of
promoting the expression in a plant of a structural gene operably linked
thereto.
The Court focused on the lack of
understanding of the molecular mechanism of the catalyzed reaction, because
those mechanistic considerations informed the language the patentee used to
describe the generic class of proteins (and the genes that encode them) in
their claims: monooxygenases. However, as it turns out -- and the evidence
showed that Bayer became aware of the true nature of the enzymes at issue well
before the '401 patent granted -- the
enzyme having the desired activity is actually a dioxygenase; the distinction
is that a monooxygenase results when one atom of molecular oxygen is incorporated
into the product and another oxygen atom is incorporated into water, while
dioxygenase catalyzes incorporation of both atoms of molecular oxygen into products (and not water), citing Fukumori & Hausinger,
Alcaligenes eutrophus JMP134 "2,4- Dichlorophenoxyacetate Monooxygenase"
Is an α-
Ketoglutarate-Dependent Dioxygenase, 175 J.
Bacteriology 2083 (1993).
Dow's accused infringing articles are genetically
modified seeds resistant to 2,4-D. Dow's
technology depends on two genes, termed aad-1 and aad-12 that encode aryloxyalkanoate
dioxygenase enzymes. It was undisputed
that these are different genes than the genes disclosed in Bayer's patent. Bayer's argument at trial was that these
genes "fall within the broader claim 1, which encompasses enzymes that 'hav[e]
the biological activity of 2,4-D monooxygenase.'" Bayer defined this claim term functionally,
taking the position that "the quoted phrase covers any enzyme that
triggers cleaving of the side chain of 2,4-D to produce 2,4-DCP, even if it is
a dioxygenase and even if it does not share other biological activities of the
particular enzyme whose gene Bayer sequenced."
At the District Court, the Markman
hearing resulted in judgment in Dow's
favor, based on evidence that the Court's Markman decision is consistent with
(or at least more consistent with) how the skilled worker would interpret the
claim. The Court's basis was "plain
and ordinary meaning" if the term is interpreted consistent with "the
established scientific meaning of the term," as opposed to the claim
construction the District Court adopted, which is that a monooxygenase means "the
enzymatic activity of an enzyme, in a biological system, that causes a reaction
with 2,4-D, and two molecules of oxygen, where one molecule of oxygen is added
to 2,4-D and the other ultimately forms water."
The District Court found
non-infringement when it refused to construe the claim as Bayer advocated. The Court also noted that, had it adopted Bayer's
construction, the claims of the '401 patent would have been invalid for failing
to satisfy the written description requirement of 35 U.S.C. § 112.
The Federal Circuit affirmed, in an
opinion by Judge Taranto
joined by Judges Prost and Bryson. The
panel characterizes the dispositive aspect of the issue before it as claim
construction, which is reviewed de novo. The Court further said that the question
before it "turns on whether Bayer's proposed construction of the term 'the
biological activity of 2,4-D monooxygenase' in the only independent claim
(claim 1) is correct." Bayer's
position (its only position according to the opinion) was that the District Court erred in not construing the term to mean "bringing about the
cleavage of the side chain of 2,4-D," period. The panel agreed with the District Court that
this reading is incorrect according to "familiar aspects of textual
analysis," i.e., the rubrics of
claim construction arising from Markman v
Westview and Cybor v FAS, and
reaffirmed in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (that
claims should be construed according to the intrinsic evidence that is the
plain meaning of the claim terms, the specification and the prosecution file
history). The opinion also notes that to
interpret the claims as Bayer advocated "would read independent claim 1 so
broadly as to raise serious doubts about validity." Trapped between this patent law Scylla and
Charybdis, the Court came to the conclusion that Bayer could not prevail.
The Court characterizes Bayer's
argument regarding its preferred claim construction as comprising two steps,
both of which the Court finds erroneous. First, according to the Court, Bayer would have the Court ignore the
ordinary and plain meaning of the term "monooxygenase" in the art, as
indicating that the enzyme splits molecular oxygen into its constituent oxygen
atoms and then incorporates one of these atoms into an organic reaction product
and the other into water. The second
step in Bayer's construction is to broaden the scope of the claim by arguing
that the Court should define the term "biological activity" regarding
the claimed nucleic acid as encoding any enzyme capable of cleaving the 2,4-D
molecule. Both these steps "encounter
serious textual difficulties," according to the opinion.
The first and most basic difficulty
the Court finds with Bayer's construction is that this meaning of the disputed
phrase "fight a facially straightforward textual analysis" insofar as
there is no disagreement that the term "monooxygenase" is understood
in the art to encompass enzymes whose enzymatic activity results in one atom of
molecular oxygen being incorporated into water. Taking the phrase as a whole, "biological activity of 2,4-D
monooxygenase" is most faithfully construed as encompassing only those
enzymes that cleave 2,4-D in the presence of molecular oxygen wherein one atom
of said oxygen molecules is incorporated into the cleavage product and the
other into water. In this construction, "the
full phrase works as an integrated unit in a way that fits its structure and
the ordinary meaning of its words."
On the contrary, Bayer's
construction requires that the phrase "2,4-D monooxygenase" be "stripped"
of the accepted meaning of the term "monooxygenase." If this is what Bayer intended to do, Bayer
had ample opportunity to do so, inter alia, in its specification or prosecution
history, because part of the right of a patentee to be its own lexicographer
includes the right to use a term contrary to its accepted meaning. (There is nothing sinister here; for example,
the term "mouse" had a much different meaning before graphical user
interfaces requires a device for manipulating the cursor.) There is a need for clarity, however, when a
patentee does this according to the opinion; that need encompasses at least
public notice and the requirement that a claim not be indefinite. But the Court recognizes that any such
intentional change in how the term "monooxygenase" is interpreted
never arose; rather, "Bayer chose the language based on an unverified
belief that it accurately described its enzyme, [and] learned that the belief
was false while its application was pending." Moreover, Bayer "had seven years before
its patent issued to alter the language, but never did," a consideration
clearly implicating the public notice function, or its breach, by Bayer.
Turning to the intrinsic evidence,
the Court finds no clear evidence that Bayer intended any variation in the
conventional meaning of the term "monooxygenase"; at best, the Court
says, the evidence is "inconsistent," and "[m]uch of it actually
reinforces the straightforward descriptive meaning of the claim terms [adopted
by the District Court]." In
addition to failing to find clear evidence in the specification as filed of the
meaning for the term now advocated by Bayer, the court notes that the claims as
filed ("a 2,4-D monooxygenase gene ... encoding a polypeptide
having the biological activity of such a monooxygenase[]") "reinforce[] rather
than undermines the ordinary descriptive meaning" of the term.
The panel is similarly unpersuaded
by Bayer's proposed construction of the term "the biological activity of." Ignoring the structure of the phrase (which
the Court says provides the context wherein the biological activity of a
monooxygenase should be that activity that makes the enzyme a "monooxygenase" (emphasis in
opinion)), Bayer attempts to expand the definition of the term to encompass any enzymatic activity that "bring[s]
about the cleavage of the side chain of 2,4-D." The Court rejects this construction, relying
on the but two instances where the specification recites a '"biological
activity." In one instance, upon
which Bayer relies, the Court finds support for Bayer's construction to be
ambiguous at best. And the other
instance "actually works against Bayer's argument," wherein the Court
interprets the disclosure in the specification (coding for a protein which has
the biological activity of the protein encoded by tfda, e.g., its
2,4-D-monooxygenase activity") to mean that there is (or can be) more than
one activity and that the activity encompassed within the scope of the claim is
its monoxygenase activity. Concluding
this portion of the opinion, the Court says:
In short, as the district
court explained, the claim language has a strong accepted scientific meaning. Bayer's alternative construction strips the monooxygenase half of the claim
phrase of its accepted descriptive meaning and then asserts a specification "definition"
of the biological-activity half. We do not find enough in the specification or
prosecution history to justify those steps.
But this isn't Bayer's only problem, according to
the opinion. Even if the Court were to
adopt Bayer's construction it would not prevail, says the Court, because the
construction Bayer advocates lacks adequate written description support in the
specification. Typically, the Court
notes, patentees advocate a narrow claim construction in order to minimize the
risk of invalidation at trial. Here,
Bayer argues for a broad interpretation as it must in order for Bayer to
prevail against a defendant making, using, selling or offering to sell, or
importing a species that is not encompassed within the scope of the claim if
construed according to the plain meaning of the terms in the claim. However, this interpretation is inconsistent
with the Court's precedent regarding what must be disclosed to support a broad
genus claim limited, as in Bayer's proposed construction, only by the function
of the claimed molecule or accused infringing item. The opinion recites the past 15 years of the Court's own jurisprudence, including Ariad
Pharms., Inc. v. Eli Lilly & Co., 598
F.3d 1336, 1351 (Fed. Cir. 2010); Carnegie Mellon Univ. v. Hoffman-La Roche
Inc., 541 F.3d 1115, 1121, 1124 (Fed. Cir. 2008); Univ. of Rochester v.
G.D. Searle & Co., Inc., 358 F.3d 916, 925 (Fed. Cir. 2004); Enzo
Biochem, Inc. v. Gen- Probe Inc., 323 F.3d 956, 964 (Fed. Cir. 2002) and Regents
of Univ. of Cal. v. Eli Lilly & Co., 119 F.3d 1559, 1566, 1569 (Fed.
Cir. 1997). In all these cases, the Court
determined that for at least some claims there was insufficient support for the
claims in the specification.
And part of that conclusion stems
from the Court's understanding that adopting Bayer's construction "would
leave the '401 patent far from providing even an indirect structural
identification of all that would be within the claim's scope." The functional language encompasses all
enzymes capable of cleaving 2,4-D, but the specification discloses only one
species capable of producing an enzyme having plaintiff's claim biological
activity. This would defeat the public
policy-based patent quid pro quo,
because it would provide claims far in excess of the scope of what the patentee
had invented. This would necessarily
include genes from all species, not just the bacterial species set forth in the
specification. However, the Court noted
that although "Bayer has sought to mitigate this concern by expressly
arguing that any genes not derived from soil bacteria would fall outside of the
claimed genus[,] Bayer did not present a claim construction based on that
trimming effort to the district court."
Finally, the Court did not deign to
perform its own independent claim construction. The opinion notes that Dow proposed two
alternative constructions but that the Court did not rule on them; however, the
panel did find that construction of the claim term "monooxygenase" as
it is commonly accepted in the art is "the most natural reading" of
the term. The difficulty with this
approach is that it "reads out" of the claim the expressly disclosed
species (because there is no dispute that the disclosed enzyme is a
dioxygenase). The Court notes that such
a decision would be "disfavored" but not prohibited.
This case illustrates the continuing
tension between claim construction and sufficiency of disclosure that has
arisen in claim drafting. There is not
an easy answer or cookie-cutter approach to producing a specification and
claims that satisfy Section 112 while at the same time can be construed in such
a way that the claims broadly recite the subject matter at issue. This is a balance that is continually
shifting, as claims having proper scope are the subject of efforts to design
around the protections offered by a patent. In this case the Federal Circuit breaks no new ground but in rendering
its decision provides a reminder for courts and litigants alike by affirming
the District Court's proper refusal to broaden the scope of the '401 patent
claims outside the four corners of its written description.
Bayer
Cropscience AG v. Dow Agrosciences LLC (Fed. Cir. 2013)
Panel:
Circuit Judges Prost, Bryson, and Taranto
Opinion
by Circuit Judge Taranto
A Reply to the New England Journal of Medicine
Editor's Note: Yesterday, we reported on a perspective, entitled "Patents, Profits, and the American People -- The Bayh–Dole Act of 1980," that was published in the August 29 issue of the New England Journal of Medicine. Earlier today, we received an e-mail from Joseph Allen, who noted that he had authored a reply to the NEJM article. His response was originally published on IPWatchdog, and is being republished here with the permission of IPWatchdog founder Gene Quinn. Patent Docs thanks Mr. Allen and Mr. Quinn for allowing us to republish Mr. Allen's response.
In its August 29, 2013 edition, the New England Journal of Medicine saw fit to print two "perspective" pieces attacking the Bayh-Dole Act. The primary article is by Dr. Howard Markel entitled "Patents, Profits, and the American People -- The Bayh–Dole Act of 1980." It repeats previously refuted charges that patenting and licensing federally funded inventions harms the public interest. To give the author due "credit," Dr. Markel does invent some new allegations as well which simply cannot go unanswered.
The Bayh-Dole Act was passed because Congress was rightly concerned that potential benefits from billions of dollars of federally funded research were lying dormant on the shelves of government. Government funded inventions tend to be very early stage discoveries -- more like ideas than products -- requiring considerable private sector risk and investment to turn them into products that can be used by the public.
Under prior patent polices, government agencies took such inventions away from their creators and offered them non-exclusively for development. There were no incentives for the inventors to remain engaged in product development. Not surprisingly, few such inventions were ever commercialized even though billions of dollars were being spent annually on government R&D. This failure spurred two Senators from opposing sides of the aisle, Birch Bayh of Indiana and Bob Dole of Kansas, to form a remarkable partnership seeking a remedy.
But here's how Dr. Markel characterizes the impetus for Senator Bayh's involvement:
In 1978, a group of constituents representing Purdue University lobbied Bayh to seek ways of reaping profits from government allocations for university-based research, arguing that although the United States spent billions of dollars annually funding more than half of all academic research and owned 28,000 patents, it had little to show for the investment.
Unlike Dr. Markel, I was actually in that meeting. Ralph Davis, who then ran Purdue's technology transfer office, is no longer with us to defend himself. Neither Ralph nor anyone else present was looking for "ways of reaping profits from government allocations for university-based research." Quite the contrary, Ralph said that Purdue had made several promising inventions under Dept. of Energy grants which would never benefit U.S. taxpayers unless they were effectively licensed and developed.
This motivation was reflected in Senator Bayh's statement on introducing the bill:
The bill addresses a serious and growing problem: hundreds of valuable medical, energy and other technological discoveries are sitting unused under government control, because the government, which sponsored the research that led to the discoveries, lacks the resources necessary for development and marketing purposes, yet is unwilling to relinquish patent rights that would encourage and stimulate private industry to develop discoveries into products available to the public.
The cost of product development exceeds the funds contributed by the government toward the initial research by a factor of at least 10 to 1. This, together with the known failure rate for new products, makes the private development process an extremely risky venture, which industry is unwilling to undertake unless sufficient incentives are provided.
The consequences of our inadequate government patent policy have not gone unnoticed. In the energy area, bureaucratic delays caused by case-by-case review of each patent application are now running behind by almost two years. . . .
But nowhere is the patent situation more disturbing than in biomedical research programs. Many people have been condemned to needless suffering because of the refusal of agencies to allow universities and small businesses sufficient rights to bring new drugs and medical instrumentation to the marketplace. The exact magnitude of this situation is unknown, but we are certain that the cases we have uncovered to date are but a small sample of the total damage that has been done and will continue to be done if Congress does not act.
Dear Colleague letter from Senator Birch Bayh on the introduction of Bayh-Dole, Sept. 6, 1978.
Senator Bayh's wife was then suffering from a cancer which would later take her life. Senator Bayh was very grateful for the help she received from the doctors at the National Institutes of Health. His determination to enact Bayh-Dole to ensure that new treatments for relieving human suffering were being developed was driven by a passionate concern for patients, not "reaping profits."
Markel repeats the discredited allegation that technology licensing was more successful before Bayh-Dole than claimed by proponents of the law. This charge used to be widely circulated leading my colleagues Norman Latker and Howard Bremer to look up the actual source materials the critics cited. Perhaps not surprisingly, they found the critics were misreading the data. See "The Bayh-Dole Act and Revisionism Redux," pp. 9-10.
Dr. Markel lightly dismisses as "[m]ore difficult to confirm" the meticulous work that Lori Pressman and her team (which included economists at the Department of Commerce) put into a ground breaking study estimating the significant economic impact of university patent licensing on the U.S economy. Lori documented the methodology behind the study which until now, no one has challenged. Perhaps Dr. Markel's "difficulty" would be solved if he actually read the paper. To make it easy, here's the link: "The Economic Contribution of University/Nonprofit Inventions in the United States: 1996-2010."
Adding insult to injury, Markel continues: "Indeed, the law's many critics question how much it has actually benefited the economy (as opposed to individuals and stakeholders) and the extent of its social costs."
Here's some data that may help Dr. Markel and the other critics:
• Since 1980 more than 9,000 new firms have been created around university inventions, more than 4,000 of which are still in business. These companies tend to locate in the same state as the university, spurring economic growth.
• 705 new companies were created by university patented inventions in FY 2012 alone, along with 591 new commercial products introduced for consumers to use. Not a bad performance in an economy otherwise stuck in the doldrums.
• There are now more than 40,000 active licenses and options in place on university inventions, the majority of which are with small businesses.
• No new drugs were commercialized when the government took inventions away from universities before Bayh-Dole. Since then at least 153 are now on the market fighting the scourge of disease world-wide according to a study published in the New England Journal of Medicine. See "The Role of Public-Sector Research in the Discovery of Drugs and Vaccines."
A new Forbes magazine analysis calculates that it now costs $5 billion to develop a new drug -- expenses that are borne by the private sector. If the critics ever get their way and succeed in undermining Bayh-Dole, we could return to the days when we again pull the plug on drugs developed from federally funded research. One has to wonder where those suffering will then turn for relief. It's unlikely the critics will be able to offer them much solace.
While not in Dr. Markel's article, publications covering it surmised from his characterization of its legislative history that enactment of Bayh-Dole was "fluke ridden" (University of Michigan Health.org) or a "rocky and somewhat inglorious road to passage by a lame duck Congress" (Tech Transfer News blog). Such language reflects a fundamental lack of understanding of the legislative process. Bayh-Dole passed on its merits in the full light of day, not through any legislative sleight of hand.
The bill not only went through all of the steps for passing a new law that you read about in civics class, it was subjected to additional scrutiny not normally required for legislation: it needed a unanimous vote of approval in the closing days of the Congress. Bayh-Dole was even attacked by its bureaucratic opponents after enactment who sought to undermine the new law by wrecking the regulations needed for its implementation. See "The Enactment of Bayh-Dole, An Inside Perspective."
Dr. Markel saves his "best" for last:
It's time for Congress to recalibrate Bayh-Dole. Profits and patents can be powerful incentives for scientists, businesspeople, and universities, but new and ongoing risks -- including high prices that limit access to lifesaving technologies, reduced sharing of scientific data, marked shifts of focus from basic to applied research, and conflicts of interest for doctors and academic medical centers -- should be mitigated or averted through revisions of the law. All Americans should be able to share in the bounties of federally funded research.
Oh my, where to begin? Would Dr. Markel feel better knowing that a survey of academic researchers concluded that "patenting does not seem to limit research activity significantly, particularly among those doing basic research," with only 1% of their random sample of 398 academic respondents reporting a project delay of more than a month due to patents on knowledge inputs necessary for their research, and none reporting abandoning of a research project due to the existence of patents? See Final Report to the National Academy of Sciences' Committee Intellectual Property Rights in Genomic and Protein-Related Inventions: Patents, Material Transfers and Access to Research Inputs in Biomedical Research (Sept. 20, 2005).
Would he feel better knowing that Bayh-Dole has not shifted the focus of federal R&D from basic to applied research? See "The Bayh-Dole Act and Revisionism Redux," pp. 11-12. This is hardly surprising as federal agencies fund research either in pursuit of expanding the frontiers of knowledge or to meet their mission needs. With industry abandoning basic research, being able to partner with our unparalleled public research institutions is a tremendous competitive advantage for the United States. Bayh-Dole makes this possible.
Perhaps Dr. Markel will feel better knowing that all Americans can only share in the bounty of federally funded research when embryonic ideas are taken from the lab and turned into new products they can actually use, while creating new jobs and companies where they can work. The United States is leading the world in this regard -- thanks to the Bayh-Dole Act.
About the Author
Joesph Allen is a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications. Mr. Allen served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. Mr. Allen has served as the Executive Director of Intellectual Property Owners, Inc., a trade association representing major R&D companies, he was involved in the creation of the Court of Appeals for the Federal Circuit, and he also served at the U.S. Department of Commerce as the Director of the Office of Technology Commercialization. From 1992 until 2004, Mr. Allen was with the National Technology Transfer Center (NTTC), becoming President in 1997. Clients included NASA, the Department of Defense, EPA, the Department of Veterans Affairs, and the Department of Commerce. Between 2004 until 2007, Mr. Allen was the Vice President and General Manager of the West Virginia High Technology Consortium Foundation. In 2008, he founded Allen & Associates to continue to facilitate public/private partnerships between universities, federal laboratories, and industry.
For additional information regarding this and other related topics, please see:
• "NEJM Perspective Calls for Recalibration of Bayh-Dole Act," September 10, 2013
• "Senator Leahy Urges NIH to Use March-In Rights on Myriad BRCA Test," July 17, 2013
• "Patent Docs Author Testifies at Genetic Diagnostic Testing Hearing," February 16, 2012
• "AUTM Survey Shows Significant Increases in University Patent Filings and Issuances in FY2010," October 5, 2011
• "USPTO Recognizes 30th Anniversary of Bayh-Dole Act," December 9, 2010
• "University Start-ups and Licensing Activity Held Steady During Recession," October 7, 2010
• "AUTM Survey Shows Drop in Issued Patents," March 9, 2010
• "BIO Comes out Swinging against SACGHS Report," February 4, 2010
• "Patent Haters Take Notice! University Innovation Fuels Robust Economic Activity," IPWatchdog, August 7, 2013
• "Intellectual Dishonesty About Bayh-Dole Consequences," IPWatchdog, May 10, 2013
• "The Good Steward -- Turning Federal R&D into Economic Growth," IPWatchdog, August 2, 2012
• "University Tech Licensing Has Substantial Impact on Economy," IPWatchdog, December 10, 2012
• "AUTM Survey: University Licensing Strong Despite Economy," IPWatchdog, December 17, 2010
• "Statement of Senator Birch Bayh on the 30th Anniversary of the Bayh-Dole Act," IPWatchdog, December 5, 2010
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