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« Nantkwest, Inc. v. Matal (Fed. Cir. 2017) | Main | FDA Report: Agency Announces Expedited Review of Certain ANDAs »

June 28, 2017


An IPWatchdog posting in 2012 Prometheus v Mayo - the Wrong Rat http://www.ipwatchdog.com/2012/05/06/prometheus-v-mayo-the-wrong-rat/id=24622/
pointed out that a decision with the right outcome but for the wrong reasons can confound jurisprudence nearly as much as a decision that is entirely wrong. The suggestion in that posting was that the most appropriate objection in Mayo was obviousness, not ineligibility, which was the same situation as here.

Very notable is your observation that: "Given that the § 101 inquiry is considered (or at least it is supposed to be considered) as a matter of law, patent challengers often take the less rigorous path of attacking claims under § 101 rather than § 102 or § 103, both of which have effectively higher evidentiary standards." The solution, I submit, is to be found in my amicus brief in Recognicorp, that the all elements rule long familiar in patent law in relation to sections 102 and 103 is equally applicable and must be applied in relation to Section 101. The alternative is to argue that judicial exceptions to Section 101 are broader than and therefore circumvent express the novelty and obviousness tests set out in sections 102 and 103 contrary to the intention of Congress, which is a further separation of powers issue going beyond that already set out in my Recognicorp amicus brief.

The arguments available to the profession, and which I submit should be put forward whenever possible and with conviction, are firstly that subject matter that as a matter of substance and not mere outward appearance falls within the ambit of Section 101 cannot be deemed ineligible as a judicial exception without raising separation of powers issues, and secondly that claim interpretation under section 101 cannot apply more lax standards than those applicable under sections 102 and 103 without raising further separation of powers issues.

The present decision is of great concern, not merely by the reasoning expressed but also by the identities of the judges who were prepared to support it. Many of us thought that the decision of the Supreme Court not to take the Sequenom case was a disaster, and although the profession must continue to do all it can at the Federal Circuit level, it now seems that a cure can only be obtained at the Supreme Court level or through Congress, which is a matter of great regret.

@ Susannah Sundby's comment in Cleveland Clinic:

May I put on record my complete agreement with your remarks.

In my submission there is much to me learned for all lawyers in Robert Bolt's play A Man for all Seasons, and the following dialogue between Moore, his daughter Margaret and his impetuous future son in law Will Roper in relation to the Oath of Supremacy deserves perhaps slightly fuller quotation than I have given on previous occasions:

MARGARET (Puts a hand on his arm) Father, by this Act, they're going to administer an oath.

MORE (With instantaneous attention) An oath! (He looks from one to the other) On what compulsion?

ROPER It's expected to be treason!

MORE (Very still) What is the oath?

ROPER (Puzzled) It's about the marriage, sir.

MORE But what is the wording?

ROPER We don't need to know the (Contemptuously) wording-we know what it will mean!

MORE It will mean what the words say! An oath is made of words! It may be possible to take it. Or avoid it. (To MARGARET) Have we a copy of the Bill?

MARGARET There's one coming out from the City.

MORE Then let's get home and look at it... .

(He turns and sees ROPER excited and truculent)

ROPER But sir--

MORE Now listen, Will. And, Meg, you listen, too, you know I know you well. God made the angels to show him splendor -as he made animals for innocence and plants for their simplicity. But Man he made to serve him wittily, in the tangle of his mind! If he suffers us to fall to such a case that there is no escaping, then we may stand to our tackle as best we can, and yes, Will, then we may clamour like champions . . . if we have the spittle for it. And no doubt it delights God to see splndor where He only looked for complexity. But it's God's part, not our own, to bring ourselves to that extremity! Our natural business lies in escaping so let's get home and study this Bill.

The words of a Supreme Court decision, no less than an oath, is made of words, and it may be possible to follow it while achieving acceptable results in later cases, or to avoid it. As advocates, it is our duty to study Supreme Court decisions with no less analytical attention than a decision of a lower court, correctly identify the rule of law which is applicable, and use it in our subsequent work. It is not our duty to give the same weight to remarks made obiter, or to approaches used in the particular case before the Court but which are not of general applicability. Our duty is correct interpretation, not gold plating, and we show as much disrespect to the Court by over-broad interpretation as by unduly narrow interpretation.

Similarly a patent claim is made of words, which need to be given due weight, and not merely disregarded because in the words of Roper "we know what it means."

Our profession should not approach section 101 with any less legal skill than that attributed by Robert Bolt to Thomas More in 1535. To the extent that the same legal skill is not presently being exercised by the judges of the Federal Circuit, the opinions of that court are being brought into disrepute not merely within the US but internationally.

Look at the panel.

Mr. Cole,

I must admit that I find pleasure in your words.

Two additional views:

1) to your:

"As advocates, it is our duty to study Supreme Court decisions with no less analytical attention than a decision of a lower court, correctly identify the rule of law which is applicable, and use it in our subsequent work."

I would add that advocates in the United States do NOT swear fealty to the Supreme Court as if that body were itself above the law, and above the Constitution. In fact, in every single State oath that I have seen, we instead swear fealty to the Constitution itself, and thus I posit that we have a duty to "fight" the Supreme Court when that body itself violates the Constitution (or as you indicate, the Separation of Powers that guides the application of the Constitution).

2) to your:

"Similarly a patent claim is made of words, which need to be given due weight, and not merely disregarded because in the words of Roper 'we know what it means.'"

I would be remiss if I did not point out how this echoes the views that I have put forth regarding a devastating weapon provided by the Supreme Court, and with which, lacking any restraint, the lower courts have seen fit to use in accord with that which the Court itself has done.

Of course, this weapon is the "Gist/Abstract" sword. Your words hear speak to the "ability" to set aside that which is considered to be the invention (a power provided by Congress TO THE INVENTOR - see 35 USC 112), and "gist" to some "directed to" thing which the Court (and through them, the courts) can make into whatever shape that a nose of wax could be bent to.

Yes, as we have all noted, most of the relatively small % of patent suits now ended at low cost by preliminary motion decisions based on Alice and prior decisions on unpatentable subject matter should have been more appropriately disposed of early-on with 103 prior art instead. But the Fed. Cir. has made that almost impossible by rarely sustaining summary judgment decisions based on 103 [not even in the KSR case itself], thus making 103 defenses normally only effective for defendants in patent suits only after plural million dollar trials on all issues, and appeals, and thus forcing settlement with no patent validity decision [absent IPRs] in more than 95% of patent suits. As the Sup. Ct. was well aware.
As to the many suggestions above and elsewhere that that Fed. Cir. should try to read Alice et al so narrowly that it would no longer be effective for such low cost patent litigation termination: How can you not notice that the Sup. Ct. has gone from taking cert on zero patent cases a year to taking cert on up to seven patent cases a year, constantly now supervising, by unanimously reversing, the Fed. Cir.?

The most recent statistics I could find on the number of patent suits in which these "101" unpatentable subject matter motions were granted shows about 140 per year. That is out of more than 4000 patent suits filed per year, or less than 3.5% of total patent suits. Also some of these 101 decisions only impacted the broadest claims. Thus, while significant to certain types of patent claims, it is not that greatly significant overall.

Mr. Morgan,

Not only is the situation opposite of "not noticed," the situation has been likened to the psychological thought experiment of firehosing simians in a cage if they dare use a step ladder in the middle of the cage to reach for bananas hanging near the top center of the cage.

The REAL problem here is the Supreme Court.

@ Paul F Morgan

It is completely understandable that a judge should wish to remove an unmeritorious patent action from his or her docket at the earliest possible stage and with minimum cost to both parties.

However, that desirable outcome cannot be justified if reached on the basis of reasoning that in modern parlance could be described as based on fake fact or fake law.

Unfortunately a number of the section 101 decisions have been reached on the basis of reasoning that can be criticised on one or both of these bases. The fact that the outcome is just cannot excuse the fact that the decision is WRONG. Even worse, the error is likely to be picked up by the USPTO, incorporated into its examination guidelines (which can and must follow the decisions of the CAFC), and damage the interests of hundreds or thousands of future patent applicants.

Diane Vaughn in her book on the Challenger disaster coined the phrase "the normalization of deviance" to explain the tendency of organizations to drift away from correct and workable standards. "It worked last time, so let's adjust the allowable temperature a bit lower". The same phenomenon can happen in law, and a wrong decision can lead to subsequent decisions that are increasingly and grossly wrong.

Mr. Cole, Mr. Morgan,

There is a short phrase that captures perfectly the point in contention, and it is a phrase especially apt in legal matters (think Sir Thomas More and mowing down all the laws to get to the devil).

The phrase: The ends do not justify the means.

ANY argument based solely on "the ends" is more than suspect. Such an argument needs to be criticized as foundationless and, indeed, deviant.

If you would like to look at it, my article Patent-Eligible Inventions after Bilski: History and Theory, 63 Hastings L.J. 53 (2011) explains why resort is needed to section 101: because in all relevant cases the natural law, phenomenon (or product) of nature, or abstract idea if discovered by the applicant is NOT prior art for 102 or 103 purposes, but is treated "as if" prior art for 101 purposes. Where it is already prior art for 102 and 103, then of course resort to those doctrines -- which grew out of 101's predecessor in the first instance -- is appropriate and, since 1952, have been better developed in theory. Of course, Paul Morgan's point about the refusal of courts to grant summary judgment -- much less motions to dismiss -- based on 103 is a reason why defendants (and many judges) prefer 101. And this is fully consistent with reading the claim as a whole, and with not "dissecting" claims to focus solely on the point of novelty - as the entire claim must be evaluated in light of the ineligible discovery to see whether that additional interaction between claim elements and the discovery constitutes the mysterious and threshold sufficient quality called "invention." Nevertheless, as I discuss in teh article, there are also good gatekeeping reasons to prefer 101 -- particularly the fact that the disclsoure should (and normally does) include description of the ineligible discovery that includes the claims, and thus facial invalidation can be assessed on the scope of the patent -- but only so long as claim construction has occurred first. And that, not 101 v. 102/103, may in many cases preclude dismissal on the pleadings, but should not preclude summary judgment (absent serious disputes about claim interpretation based on different inferences to be drawn from competing extrinsic evidence.

Professor Joshua Sarnoff,

Your statement proves too much:

"...constitutes the mysterious and threshold sufficient quality called 'invention.' "

The Act of 1952 removed from the Supreme Court the authority to set the meaning of that "mysterious and threshold sufficient quality" AND IN ITS PLACE carved out of the former words that went into section 101, the NEW section of 103.

What is "fully consistent" is the desire of the Supreme Court to act as if their nose of wax mashing power were not changed by Congress in 1952.


Unfortunately, Judge Giles Rich has brainwashed you with his revisionist history. See P.J. Federico's argument in Application of Ducci. SCOTUS has followed what Congress adopted and intended -- although pure textualists might seek to argue that Section 100(b) eliminated the "non-analogous use" doctrine of Ansonia Brass. Jeff Lefstin has also documented in his "Inventive Application" article that -- notwithstanding Section 103 and Judge Rich's revisionist history -- Congress did not clearly overturn Funk Brothers, and many Courts of Appeals (including the CCPA in Ducci) applied "inventive application" under Section 101 after the act, as did SCOTUS in Benson (confusedly) and in Flook (clearly). Nor did Judge Rich follow Flook in In re Bergy, which was binding law of a superior court and which he was therefore legally and ethically obligated to follow. So to Judge Rich, one might profitably quote A Man for All Seasons (keeping with the trend in this thread): "It profits a man nothing to give his soul for the whole world ... but for Wales, Rich[ard]?"

It is time to stop acting like the 1952 Act eliminated all consideration of "invention" in Section 101 (or in its predecessor under pre-1952 Act law). Any lawyer who sought to take that approach before Diehr or after Bilski would have committed or would now commit malpractice.

Sorry Professor Sarnoff, but labelling a postion you do not like as "brainwashed" is not compelling.

Quite the opposite.

You note "Nor did Judge Rich follow Flook in In re Bergy, which was binding law of a superior court and which he was therefore legally and ethically obligated to follow." but miss the FACT that Judge Rich was correct in his actions because he knew what the Act of 1952 actually did, and if challenged, he would have been upheld. That's why the Court did not challenge him and that is why the "pendulum swung back the other way" in the Diehr and Chakrabarty cases.

It is also telling with your comment of "Any lawyer who sought to take that approach before Diehr or after Bilski would have committed or would now commit malpractice." which I flatly reject, and I would point out to you that any and all attorney state oaths do not place the Supreme Court above the Constitution, and your notion of what malpractice is amounts to FUD only.

It is not Judge Rich that needs be concerned over a soul and selling out.

The reference to another academic following your view is merely self-serving B$.

From that article: Professor of Law, University of California, Hastings College of Law. I thank Martin
Adelman, John Golden, Peter Menell, Ted Sichelman, Richard Stern, and especially Joshua
Sarnoff for helpful criticism and suggestions.

Richard Stern - as if that soul has not been sold....

@ Professor Sarnoff

" ... in all relevant cases the natural law, phenomenon (or product) of nature, or abstract idea if discovered by the applicant is NOT prior art for 102 or 103 purposes, but is treated "as if" prior art for 101 purposes."

With the utmost respect, the fundamental object of legal proceedings under the common law is to arrive at the truth. In the US, as in the UK, a witness swears or affirms that his or her testimony is the truth, the whole truth and nothing but the truth. The purpose of the difficult and expensive trial procedures of discovery and cross-examination is to arrive at the truth. It is one of the great strengths of the common law tradition that it enables truth to emerge, sometimes straightforwardly, sometimes only with great labor, but eventually in most cases.

It is pertinent to ask whether it is true or false that the natural law, phenomenon (or product) of nature, or abstract idea newly discovered by the applicant is part of the prior art known to the public. It follows directly from the premise that it is UNTRUTH, and insofar as such statements are willfully made in the course of legal proceedings and subsequently acted on they are what is described in common parlance as LIES, whether spoken or written by an administrative judge or by a Justice of the Supreme Court. The state of the world is a matter of objective fact, and neither office nor rank suffices to convert factual falsehood into factual truth, nor can that conversion be made within the scope of 74 pages of a learned academic article.

It follows that if section 101 jurisprudence or a substantial part of it is based on the proposition set out above, it is based on and rooted in falsehood, and should not be accepted by any judge or attorney forming part of our shared common law system. It differs in kind from any acceptable legal fiction e.g. as to parenthood in cases of adoption where new fact is created as the result of a legal procedure, and creation of new legal fictions should obviously be only in circumstances of the utmost rarity of which this is not one. Nor is it acceptable that law students should be educated to believe that any part of the law can or should be based on and rooted in falsehood.

Reconsideration is therefore plainly needed.


I respect your opinion, and agree that it is a legal fiction. But a legal fiction based on earlier moral concerns that have become law (in the U.S., although there was significant question regarding that possibility in the UK). That moral concern was the belief that scientists were thought in the 18th Century to have moral duties to disseminate their knowledge of science and nature freely to benefit all. Although they could not be compelled to speak, it was a derliction of duty to keep the knowledge to themselves. And when they sought to patent applications, the natural and scientific discoveries were thoguht to be God's work and seeking a patent on them would constitute the sins of hubris and of simony. The legal fiction thus was to treat the discovery of nature and science (God's work, rather than human invention) as if it were already known, and then ask whether the applicant had made an invention in light of that discovery. Both Lord Camden and later William Robinson explained this clearly. One can argue that we no longer share the same morality, or the view that rejecting patents on natural and scientific (or abstract) discoveries is good innovation policy. But in fact that intuition is still the law around the world, and we don ot permit patents on scientific and natural discoveries as such. The only difference is whether useful and practical application of such discoveries should be treated as "invention" if not sufficiently (technologically) creative in light of the discovery. And there are good pragmatic reasons to retain the legal fiction in the US that they are not. But most of the world now disagrees about that judgment.


The appropriate thing for Judge Rich to have done was to issue a separate dissent (or comments, like Judge Nies) to a majority opinion following Flook and to ask for the Court to overturn its prior holding. That is following the law. And that also would have reflected the courage of his convictions that he properly understood the 1952 Act and could persuade others of that fact. But instead, he made a power grab and somehow convinced Justice Powell (then possibly becoming senile) and Justice White to switch their votes from the Flook majority to the Diehr majority, while Justice Stevens (who understood his patent law and found life forms patentable and authorized in light of the Plant Patent Act but could not accept the change to the standard for what constitutes "invention" in Diehr) switching back from the Charkabarty majority to the Diehr dissent. A shame that Justice Stevens could not command the majority in Bilski as his parting opinion to restore the law, because someone (likely Justice Scalia or Justice Kennedy) presumably switched his vote and then Justice Kennedy got the history wrong.

PS Skeptical:

Jeffrey Lefstin has enormous integrity. Although he would like to inter "inventive application," his scholarship is extremely good (even if we politely disagree on the meaning of O'Reilly and on whether the analogous use doctrine had enshrined inventive application as the law before Funk Brothers). He did not alter his conclusion (after careful research) that the 1952 Act did not (clearly) overturn Funk Brothers (as Congress rejected proposed legislative language that would clearly have done so) and in his article explained how the circuit courts before Benson and Flook had continued to apply "inventive application" under the 1952 Act. Thus, eliminating all consideration of creativity (or "invention" or "inventiveness") from Section 101 was NOT achieved by the Act until all the lower courts and SCOTUS itself were wrong when SCOTUS reversed its view of the 1952 Act Diehr. But if that's true, then Diehr was also wrong when it was reversed in Bilski. Thus, contrary to what Judge Rich later claimed in order to suit his political desires, the 1952 Act did not eliminate all consideration of invention from Section 101.

In contrast, Lefstin has separately explained his hope that the Supreme Court (not the CAFC) would take the Sequenom case to _eliminate_ inventive application -- in an amicus brief with Professor Peter Menell. Implicit in this is a recognition that inventive application is in fact the law under the current interpretation of SCOTUS of the 1952 Act. (This position is perfectly coherent if one believes that Congress in 1952 perserved interpretive discretion for the Court to alter its earlier jurisprudence under Section 101's predecessor). That approach is honest and respectable, and I had hoped they would be succesful in getting SCOTUS to take the case so as to finally and clearly resolve this issue - preferably by clarifying that inventive application is the law and directing the CAFC to develop the standard of sufficient creativity in light of an ineligible discovery treated as if prior art more explicitly and clearly, and without regard to preemption. But I could live with the alternative of eliminating inventive application given what a muddle the failure to state this clearly creates).

In contrast to honest and respectable positions and discourse, ad hominem attacks on academia and academics are not appropriate -- any more than are ad hominem attacks on the media or on scientists, which are much more important in the damage they do to our society, to our political fabric, and to civility. Lest you jump to point the finger of blame back, I have attacked Judge Rich here on the merits of his actions (by elevating his political goals over the law as shown), not by calling him a judge and acting like that is a pejorative title (but rather by suggesting what proper conduct for a lower court judge who disagrees with the law should be; another alternative is to resign,if the judge feels that enforcing the perceived-to-be-bad law is too much for her/his moral constitution). Thus, I won't call your opinions "B$," even if I disagree with them, because that is not civil and not good for communal discourse! Is there a reason that you cannot reciprocate and respond politely?

Finally, to illustrate the point, Richard Stern was the government's principal patent/antitrust lawyer before going into private practice for many years. Does that make his views B$ too, because as "everyone knows" all lawyers are liars? I don't think so. So if you have a beef with Jeffrey Lefstin or with Richard Stern, state the facts and basis so that they can be evaluated and understood.

Professor Sarnoff,

Your protests ring hollow, as your accusations of Judge Rich are not based on fact, but on your personal philosophy alone.

Just because you have followed that personal philosophy ardently throughout your career does not change what it is.

As to respond politely, how the "F" is "you are brainwashed" a polite response?

As to Stern, you falsely "connect" his actions to somehow being "just a lawyer." Nice stramwan, but that has absolutely zero to do with anything.

As to Lefstin, my "dig" was not at him, but at YOU attempting to use him as some type of "objective" vouching for what you say, when what he says is grounded in learning from you. Such is simply not any type of independent "vouching" that means anything at all.

And now that you have prompted me to post, I would also add that your earlier attempt to co-opt Application of Ducci as somehow supporting your view is a perverse twisting trying to arrive at the opposite of reality, as the application of Ducci speaks of 103 and NOT 101.

Your entire career is built on a specific animus, Prof. Sarnoff. You oh so casually use the ad hominem of "brainwashed" and then beg me to be polite, all the while you remain entrenched in an errant view and wish to ignore what the Supreme Court is doing - and the factual parallel to that which prompted the Congress to finally act in 1952 (hint: look up the phrase "the only valid patent is one that has not yet appeared before us").

As to your ability to be objective on this topic, well, call me...


Your comment of " A shame that Justice Stevens could not command the majority in Bilski as his parting opinion to restore the law"

shows just how out of touch you are with what the law really is, as Stevens HAD the majority position and lost it because what he wanted would have trampled directly on the words of Congress.

Shame? You use that word, but I do not think that you understand what that word means.

"because in all relevant cases the natural law, phenomenon (or product) of nature, or abstract idea if discovered by the applicant is NOT prior art for 102 or 103 purposes, but is treated "as if" prior art for 101 purposes."

Professor Sarnoff,

With all do respect, your statement that "the natural law, phenomenon (or product) of nature, or abstract idea if discovered by the applicant" for 101 purposes "is to be treated as if it was prior art" is utter hogwash-Justice Steven's took a similar view in Flook and it too is utter hogwash. (BTW I had just started as a practicing patent attorney, and second generation one at that, when Flook came out, and rolled my eyes at such nonsense from Stevens.) The express language of 35 USC 101 says no such thing-for you or Stevens or to say otherwise doesn't make it so either. And I agree completely with Skeptical that Rich got it right on the correct meaning of 35 USC 101, and that Stevens got it completely and utterly wrong.

ANd while address to MR. COle, your comment of:

"That moral concern was the belief that scientists were thought in the 18th Century to have moral duties to disseminate their knowledge of science and nature freely to benefit all."

is beyond belief that you are ascribing such as to a basis for US law.

This merely reflects a typical liberal left elitist view and conflation of your own self-aggrandizing desires with a truly objective view of matters.

Academia deserves disdain for those things that are disdainful, and one of those things IS the loss of any sense of meritocracy and the replacement of such with a me-too-ism slavish adherence to "right" thinking (as opposed to critical thinking).

As to "And there are good pragmatic reasons to retain the legal fiction in the US that they are not." - stated without substantiation. Clearly, ALL pragmatism (as that words means) points in the opposite direction.

Never mind the fact that BOTH inventions and discoveries have their meanings in patent law (another inconvenient fact that you appear ready to gloss over).

@ Professor Sarnoff

As tomorrow is the 4th July, I propose an Anglo-American truce.

Battle may be rejoined after the holiday.


In the spirit of civility, I will only say further the following quote from Judge Frank in Katz v. Horni Signal Mfg. Co., 145 F.2d 961, 963 (2nd Cir. 1944), explaining the law of "invention" before separating 101 and 103:

"1. Epoch-making ‘discoveries‘ of ‘mere‘ general scientific ‘laws,‘ without more, cannot be patented.1 So the great ‘discoveries‘ of Newton or Faraday could not have been rewarded with such a grant of monopoly. Interestingly enough, apparently many scientists like Faraday care little for monetary rewards; generally the motives of such outstanding geniuses are not pecuniary.2 Perhaps (although no one really knows) the same cannot be said of those lesser geniuses who put such discoveries to practical uses. At any rate, the persons who do such lesser work are not outside our patent law.3 And the plaintiff here, if he invented and patented the device made and sold by the defendant, which device makes a highly useful application of one of Faraday's discoveries, is such a person." citing:
O'Reilly v. Morse, 15 How. 62, 112-118, 14 L.Ed. 601; Morton v. New York Eye Infirmary, 2 Cir., Fed. Cas. No. 9,865; Halliburton Oil Well Cementing Co. v. Schlumberger Well Surveying Corp., 5 Cir., 130 F.2d 589, 593, certiorari denied 318 U.S. 758, 63 S.Ct. 532, 87 L.Ed. 1131; General Elec. Co. v. DeForest Radio Co., 3 Cir., 28 F.2d 641, 642, certiorari denied 278 U.S. 656, 49 S.Ct. 180, 73 L.Ed. 565.


Happy Naughty Children's day back to you all on the other side of the Pond...

You want to quote a case from 1944 to explain what happened in 1952...?

That's a non-starter.

AND (once again), Prof. Sarnoff, what you quote does NOT support your views.

Your quote appears to show that lesser geniuses have lesser "goals" than the "discover and share freely to all" and that these things squarely fall within the patent laws.

This is yet another sign that shows that your own animus blocks any sense of objectivity in your advocacy efforts.

Your mix of academia as the means to your advocacy makes both suffer.

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