ALJ Gildea

ALJ Gildea Denies Motion To Strike In Certain Equipment For Communications Networks (337-TA-778)

By Eric Schweibenz
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Mar
14
On March 7, 2012, ALJ E. James Gildea issued Order No. 34denying Complainant MOSAID Technologies Inc.’s (“MOSAID”) motion to strike Respondents’ exhibit objections, and ordered MOSAID to show cause as to why it should not be sanctioned for filing its motion in Certain Equipment for Communications Networks, Including Switches, Routers, Gateways, Bridges, Wireless Access Points, Cable Modems, IP Phones, and Products Containing Same (Inv. No. 337-TA-778).

By way of background, this investigation was instituted by the Commission on June 16, 2011 after MOSAID filed a complaint naming as Respondents Cisco Systems, Inc., Cisco Consumer Products LLC, Cisco Systems International B.V., and Scientific Atlanta LLC (collectively, “Cisco”) alleging violation of Section 337 in the importation and sale of certain equipment for communications networks that infringe one or more U.S. Patents.  See our May 20, 2011 post for more details about the complaint.

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ALJ Gildea Orders Domestic Industry Evidence To Be Presented First At Evidentiary Hearing In Certain Equipment For Communications Networks (337-TA-778)

By Eric Schweibenz
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Mar
19
On March 2, 2012, ALJ E. James Gildea issued Order No. 31 in Certain Equipment for Communications Networks, Including Switches, Routers, Gateways, Bridges, Wireless Access Points, Cable Modems, IP Phones, and Products Containing Same (Inv. No. 337-TA-778).

In the Order, ALJ Gildea noted that in light of his prior rulings on spoliation (see our March 6, 2012 post for more details) and improper inducement, Complainant MOSAID Technologies Inc. had lost some but not all of the evidence it indicated that it intended to rely on to support its economic domestic industry allegations.  Accordingly, ALJ Gildea determined that it was in the interests of all involved to separate the issue of domestic industry from that of infringement and validity.  ALJ Gildea stressed that his ruling in this investigation “does not intend to set a precedent for doing this in future investigations.”  However, “under the unique and compelling circumstances here, where key evidence has been excluded, upwards of 1400 products have been accused of infringement, and large quantities of prior art are alleged to invalidate numerous asserted patent claims, it would be well worth determining what remains with respect to the issue of domestic industry before proceeding further.” 

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ALJ Gildea Grants-In-Part Motion To Strike Notice Of Prior Art In Certain Electronic Devices, Including Wireless Communication Devices, Portable Music And Data Processing Devices, And Tablet Computers (337-TA-794)

By Eric Schweibenz
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Mar
21
On March 12, 2012, ALJ E. James Gildea issued Order No. 40 granting-in-part Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC’s (collectively, “Samsung”) motion to strike Respondent Apple Inc.’s (“Apple”) notice of prior art in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music And Data Processing Devices, And Tablet Computers (Inv. No. 337-TA-794).

According to the Order, Samsung argued that Apple’s 380-page notice of prior art failed to comply with Ground Rule 4 and did not provide Samsung and the Commission Investigative Staff (“OUII”) notice as to the prior art on which Samsung intends to rely in the investigation.  OUII opposed the motion to strike, but recommended that Samsung be required to file an amended notice that (1) contains only the references that Apple plans to rely on at the evidentiary hearing; (2) contains significantly fewer than 7,000 references; (3) does not contain new references (i.e., references not cited in the original notice); and (4) fixes technical errors in the original notice.  Apple argued in opposition that it has no realistic way of determining which references it needs to rely on at the evidentiary hearing because Samsung failed to provide priority dates for the asserted patents in response to discovery requests.

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ALJ Gildea Issues Order Regarding Markman Presentations And Technology Tutorial In Certain Electronic Devices With Graphics Data Processing Systems (337-TA-813)

By Eric Schweibenz
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Mar
22
On March 20, 2012, ALJ E. James Gildea issued Order No. 10 in Certain Electronic Devices With Graphics Data Processing Systems, Components Thereof, and Associated Software(Inv. No. 337-TA-813).

In the Order, ALJ Gildea agreed with a joint statement submitted by the private parties that a Markman hearing in advance of the evdidentriary hearing was neither necessary nor desireable.  The ALJ also agreed with the parties’ proposal to conduct claim construction presentations in conjunction with the technology tutorial immediately prior to the evidentiary hearing.  ALJ Gildea determined that “Complainant and Respondents will be permitted 60 minutes per side to present the technology at issue in this Investigation.”  ALJ Gildea further noted that legal argument during the presentation would not be permitted and immediately following the technology tutorials, the ALJ would permit the parties to present Markman tutorials providing an overview of claim construction issues with respect to the patents at issue in the investigation.  According to the Order, “Complainant, Respondent, and Staff will be permitted 60 minutes per side to summarize their legal arguments with respect to claim construction.” 

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ALJ Gildea Denies Apple’s Motion to Amend the Complaint in Certain Portable Electronic Devices (337-TA-797)

By Eric Schweibenz
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Mar
23
On March 20, 2012, ALJ James E. Gildea issued the public version of Order No. 39 (dated March 5, 2012) denying Complainant Apple Inc.’s (“Apple”) motion seeking leave to file a Second Amended Complaint and to amend the Notice of Investigation in Certain Portable Electronic Devices and Related Software(Inv. No. 337-TA-797).

By way of background, the investigation is based on a July 8, 2011 complaint and August 3, 2011 supplement to the complaint filed by Apple alleging violation of Section 337 in the importation into the U.S. and sale of certain portable electronic devices and related software that infringe various U.S. patents.  See our July 11, 2011 post for more details.

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ALJ Gildea Grants Joint Motion To Terminate Investigation In Certain Equipment For Communications Networks (337-TA-778)

By Eric Schweibenz
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Mar
23
On March 21, 2012, ALJ E. James Gildea issued Order No. 47 in Certain Equipment for Communications Networks, Including Switches, Routers, Gateways, Bridges, Wireless Access Points, Cable Modems, IP Phones, and Products Containing Same(Inv. No. 337-TA-778).

In the Order, ALJ Gildea granted a joint motion filed by Complainant MOSAID Technologies Inc.’s (“MOSAID”) and Respondents Cisco Systems, Inc., Cisco Consumer Products LLC, Cisco Systems International B.V., and Scientific-Atlanta LLC (collectively, “Cisco”) to terminate the investigation in its entirety on the basis of a settlement agreement.  After reviewing the confidential and non-confidential versions of the agreement, ALJ Gildea granted the motion filed by MOSAID and Cisco.

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ALJ Gildea Denies Motion To Terminate Investigation As To Nanya Respondents In Certain Dynamic Random Access Memory And NAND Flash Memory Devices (337-TA-803)

By Eric Schweibenz
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Mar
27
On March 23, 2012, ALJ Gildea issued the public version of Order No. 25 (dated February 23, 2012) in Certain Dynamic Random Access Memory and NAND Flash Memory Devices and Products Containing Same(Inv. No. 337-TA-803).  In the Order, ALJ Gildea denied Respondents Nanya Technology Corporation and Nanya Technology Corporation, USA (collectively, “Nanya”) and Complainants Intellectual Ventures Management, LLC, Invention Investment Fund I, L.P., Invention Investment Fund II, LLC, Intellectual Ventures I LLC, and Intellectual Ventures II LLC’s (collectively, “Complainants”) motion to terminate Nanya from the investigation on the basis of a settlement agreement.

In support of the motion, Nanya and Complainants argued that termination would serve the public interest because Nanya will continue to manufacture, import, and sell for imporation the devices that have been accused in this investigation.  ALJ Gildea determined, however, that “[w]hile termination of litigation under these circumstances as an alternative method of dispute resolution is generally in the public interest and will conserve public and private resources, the Administrative Law Judge finds that such is not entirely the case here.”  Specifically, ALJ Gildea noted that in Order No. 18, Complainants had structured a “complex and atypical” settlement with the Pantech Respondents that was ultimately approved and found to be not contrary to the public interest.  According to the Order, the provisions from the Pantech settlement structure – that confirmed Complainants were not seeking to bypass some domestic burdens, namely the payment fo U.S. taxes on any settlement monies – were not present in the agreements involving Nanya.  Accordingly, ALJ Gildea questioned “the bona fides of such an attenuated settlement arrangement, and finds that there are sufficient concerns regarding the public interest here because it appears that the agreements may have been structured to bypass U.S. income tax laws.”  ALJ Gildea further noted that “movants make no explanation as to why there deal is structured differently from that approved in Order No. 18 or why such a structure is necessary here.”  ALJ Gildea also noted that “although movants claim their deal favors the public interest, they do not explain how the additional layer of a Netherlands entity to an already unusual series of licensees and sublicensees would impact the public interest.” 

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ALJ Gildea Rules On Pretrial Motions In Certain Equipment For Communications Networks (337-TA-778)

By Eric Schweibenz
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Mar
28
On March 23, 2012, ALJ E. James Gildea issued the public versions of Order No. 29 (dated February 23, 2012), Order No. 37 (dated March 8, 2012), Order No. 39 (dated March 8, 2012), Order No. 42 (dated March 9, 2012), Order No. 43 (dated March 9, 2012), Order No. 44 (dated March 9, 2012) and Order No. 45 (dated March 12, 2012) in Certain Equipment for Communications Networks, including Switches, Routers, Gateways, Bridges, Wireless Access Points, Cable Modems, IP Phones, and Products Containing Same (Inv. No. 337-TA-778).

By way of background, this investigation was instituted by the Commission on June 16, 2011 after MOSAID Technologies Inc. (“MOSAID”) filed a complaint naming as respondents Cisco Systems, Inc., Cisco Consumer Products LLC, Cisco Systems International B.V., and Scientific Atlanta LLC (collectively, “Cisco”).  See our May 20, 2011 post for details about the complaint.  The patents at issue are U.S. Patent Nos. 5,841,360 (the ‘360 patent), 6,842,459 (the ‘459 patent), 7,633,966 (the ‘966 patent), 7,035,280 (the ‘280 patent), 7,292,600 (the ‘600 patent) and 7,830,858 (the ‘858 patent).  A Markman hearing was held on September 25 and 26, 2011 regarding the interpretation of the disputed claim terms.  See our March 1, 2012 post for details about the claim construction order.

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ALJ Gildea Grants Joint Motion To Terminate Investigation In Certain Set-Top Boxes (337-TA-761)

By Eric Schweibenz
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Mar
30
On March 26, 2012, ALJ E. James Gildea issued Order No. 43 in Certain Set-Top Boxes, and Hardware and Software Components Thereof(Inv. No. 337-TA-761).

In the Order, ALJ Gildea granted a joint motion filed by Complainant Microsoft Corporation (“Microsoft”) and Respondent TiVo Inc. (“TiVo”) to terminate the investigation in its entirety on the basis of a settlement agreement.  After reviewing the confidential and non-confidential versions of the agreement, ALJ Gildea granted the motion filed by Microsoft and TiVo.

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ALJ Gildea Grants Motion For Summary Determination On Economic Prong Of Domestic Industry In Certain Set-Top Boxes (337-TA-761)

By Eric Schweibenz
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Apr
05
On March 28, 2012, ALJ E. James Gildea issued the public version of Order No. 42 (dated March 15, 2012) in Certain Set-Top Boxes, and Hardware and Software Components Thereof(Inv. No. 337-TA-761), granting Complainant Microsoft Corporation’s (“Microsoft”) motion for summary determination that the economic prong of the domestic industry requirement has been met.

According to the Order, Microsoft argued that it met all three statutory subsections of the statute, any one of which would suffice to establish the economic prong of the domestic industry requirement.  Specifically, Microsoft argued that with respect to the articles it alleges are protected by the asserted patents, it has proven: "(A) significant investment in plant and equipment; (B) significant employment of labor or capital; or (C) substantial investment in its exploitation, including engineering, research and development, or licensing." 19 U.S.C. § 1337(a)(3).  The two patents remaining in this investigation are U.S. Patent Nos. 5,758,258 (the ‘258 patent) and 5,585,838 (the ‘838 patent).  Microsoft alleges that one version of its Mediaroom software practices the ‘258 patent while another version of the software practices the ‘838 patent, and both versions run on AT&T U-verse set-top boxes.  Microsoft relied on facility, infrastructure, and equipment investments tied to Mediaroom software from 2009 - 2011.  Microsoft further relied on employment compensation and capital investments apparently tied to Mediaroom, as well as research and development investments since 2009.

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ALJ Gildea Grants Motions To Terminate Investigation In Certain Blu-Ray Disc Players (337-TA-824)

By Eric Schweibenz
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Apr
09
On April 2, 2012, ALJ E. James Gildea issued Order No. 10 and Order No. 11 in Certain Blu-Ray Disc Players, Components Thereof and Products Containing Same(Inv. No. 337-TA-824).

In Order No. 10, ALJ Gildea granted a joint motion filed by Walker Digital, LLC (“Walker Digital”) and Respondents Haier Group Corporation and Haier America Trading, LLC to terminate the investigation based on entry of a consent order. 

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ALJ Gildea Rules On Nonparties’ Motions To Quash In Certain Portable Electronic Devices (337-TA-797)

By Eric Schweibenz
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Apr
10
On April 3 and 4, 2012, ALJ James E. Gildea issued Order No. 48 and Order No. 49, respectively, ruling on motions to quash and/or limit subpoenas served by Complainant Apple Inc. (“Apple”) on nonparties AT&T Wireless (“AT&T”) and TPK Holding Co., Ltd. (“TPK”) in Certain Portable Electronic Devices and Related Software (Inv. No. 337-TA-797).

By way of background, this investigation is based on a complaint filed by Apple alleging violation of Section 337 in the importation into the U.S. and sale of certain portable electronic devices and related software that infringe various U.S. patents.  See our August 10, 2011 post for more details.

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ALJ Gildea Sets Target Date In Certain Mobile Electronic Devices Incorporating Haptics (337-TA-834)

By Eric Schweibenz
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Apr
16
Further to our April 9, 2012 post, on April 12, 2012, ALJ E. James Gildea issued Order No. 2 in Certain Mobile Electronic Devices Incorporating Haptics (Inv. No. 337-TA-834).

According to the Order, ALJ Gildea set October 28, 2013 as the target date (which is approximately 18 months after institution of the investigation).  ALJ Gildea further indicated that the initial determination on alleged violation shall be due on June 28, 2013.

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ALJ Gildea Denies Motion To Stay In Certain Blu-Ray Disc Players (337-TA-824)

By Eric Schweibenz
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Apr
18
On April 16, 2012, ALJ E. James Gildea issued Order No. 13 in Certain Blu-Ray Disc Players, Components Thereof and Products Containing the Same (Inv. No. 337-TA-824) denying Respondents’ motion to stay pending conclusion of the reexamination of U.S. Patent 6,263,505 (the ‘505 patent) by the U.S. Patent and Trademark Office (“PTO”).

By way of background, the investigation is based on a complaint filed by Walker Digital, LLC (“Walker Digital”) alleging violation of Section 337 in the importation into the U.S. and sale of certain Blu-ray disc players, components thereof, and products containing the same that infringe certain claims of the ‘505 patent.  See our December 8, 2011 post for more details.

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ALJ Gildea Denies Motion To Amend Notice Of Prior Art In Certain Dynamic Random Access Memory And NAND Flash Memory Devices (337-TA-803)

By Eric Schweibenz
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Apr
19
On April 11, 2012, ALJ E. James Gildea issued Order No. 38 denying Respondents Hynix Semiconductor America, Inc., Hynix Semiconductor Inc., Acer Inc., Acer America Corp., ADATA Technology Co., Ltd., ADATA Technology (U.S.A.) Co., Ltd., ASUSTeK Computer Inc., Asus Computer International, Inc., Best Buy Co., Inc., Dell, Inc., Hewlett-Packard Company, Kingston Technology Co., Inc., Logitech International S.A., and Logitech, Inc.’s (collectively, the “Respondents”) motion to amend their notice of prior art in Certain Dynamic Random Access Memory And NAND Flash Memory Devices And Products Containing Same(Inv. No. 337-TA-803).

According to the Order, the Respondents sought to add two newly identified prior art patents that were discovered after discussions with the Hynix Respondents’ technical experts.  Finding that Respondents did not persuasively show good cause to amend, ALJ Gildea denied the motion.

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ALJ Gildea Rules On Motion For Protective Order And Cross-Motion To Compel In Certain Electronic Devices, Including Wireless Communication Devices, Portable Music And Data Processing Devices, And Tablet Computers (337-TA-794)

By Eric Schweibenz
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Apr
20
On April 17, 2012, ALJ E. James Gildea issued the public version of Order No. 34 (dated February 24, 2012) in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers (Inv. No. 337-TA-794).  In the Order, ALJ Gildea granted-in-part Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC’s (collectively, “Samsung”) motion for a protective order and granted-in-part Respondent Apple Inc.’s (“Apple”) motion to compel the depositions of certain Samsung executives.

According to the Order, Samsung was seeking a protective order to prevent the depositions of four of its executives, Seungho Ahn, Jaewan Chi, Minhyung Chung, and Kenneth Korea.  Samsung primarily relied on the “apex doctrine” to argue that Apple should look to other corporate witnesses to obtain discovery relating to licensing.  According to the Order, Samsung did not appear to dispute the relevance of Apple’s discovery requests—just Apple’s choice of witnesses.

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ALJ Gildea Grants Motion To Compel In Certain Dynamic Random Access Memory And NAND Flash Memory Devices (337-TA-803)

By Eric Schweibenz
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Apr
26
On April 6, 2012, ALJ E. James Gildea issued Order No. 32 granting Respondents Elpida Memory, Inc. and Elpida Memory (USA) Inc.’s (collectively, “Elpida”) motion to compel Complainants to provide discovery relating to their domestic industry assertions in Certain Dynamic Random Access Memory And NAND Flash Memory Devices And Products Containing Same(Inv. No. 337-TA-803).

According to the Order, Elpida argued that Complainants made specific allegations regarding domestic industry in the Amended Complaint but have not fully responded to Elpida’s domestic industry discovery requests.  In response, Complainants asserted that they provided “extensive and voluminous” discovery relating to their domestic industry licensing activity, and that the motion contains the same deficiencies as Elpida’s earlier motion regarding the same subject matter.

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ALJ Gildea Rules On Motion To Compel In Certain Electronic Devices With Graphics Data Processing Systems (337-TA-813)

By Eric Schweibenz
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Apr
27
On April 20, 2012, ALJ E. James Gildea issued the public version of Order No. 12 (dated April 9, 2012) denying Complainants’ S3 Graphics, Co., Ltd and S3 Graphics, Inc. (collectively, “S3G”) motion to compel in Certain Electronic Devices With Graphics Data Processing Systems, Components Thereof, and Associated Software (Inv. No. 337-TA-813).

According to the Order, S3G moved to compel Respondent Apple Inc. (“Apple”) to substantially complete its document production by February 29, 2012, approximately three and a half months before the close of fact discovery.  S3G argued, inter alia, that Apple had refused to commit to a mutually agreeable production schedule, that “Apple has only committed to produce a subset of responsive documents, and … that Apple is unilaterally attempting to decide what types of documents to produce, which discovery requests are relevant, and when to produce certain documents.  S3G also assert[ed] that Apple is attempting to shift its discovery obligations onto S3G by requiring S3G to identify components of the accused products that are relevant to this investigation.” 

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ALJ Gildea Sets 20-Month Target Date In Certain Consumer Electronics (337-TA-839)

By Eric Schweibenz
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Apr
27
Further to our April 23, 2012 post, on April 25, 2012, ALJ E. James Gildea issued Order No. 2  in Certain Consumer Electronics, Including Mobile Phones and Tablets (Inv. No. 337-TA-839).

According to the Order, ALJ Gildea set December 2, 2013 as the target date (which is approximately 20 months after institution of the investigation).  ALJ Gildea further indicated that the initial determination on alleged violation shall be due on August 2, 2013.

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ALJ Gildea Grants Motion To Compel In Certain Electronic Devices, Including Wireless Communication Devices, Portable Music And Data Processing Devices, And Tablet Computers (337-TA-794)

By Eric Schweibenz
|
Apr
30
On April 17, 2012, ALJ E. James Gildea issued the public version of Order No. 45 (dated March 23, 2012) in Certain Electronic Devices, Including Wireless Communication Devices, Portable Music and Data Processing Devices, and Tablet Computers(Inv. No. 337-TA-794). In the Order, ALJ Gildea granted Respondent Apple Inc.’s (“Apple”) motion to compel Complainants Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC (collectively, “Samsung”) to produce licenses and other fabrication materials which are related to an accused product.

According to the Order, ALJ Gildea determined that Samsung did not dispute the relevance of the requested discovery, and made positive efforts to comply with the demands made by Apple’s motion to compel.  Therefore, ALJ Gildea ordered that to the extent that they have not yet done so, Samsung must produce by no later than March 30, 2012, any agreements or other fabrication materials requested by the motion to compel.

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