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Monsanto and Myriad are hopeful that the nation's highest court

Today nearly 20 percent of the human genome is patented.  Thousands of genetically modified plants and animals are patented as well.  But those patents could soon be invalidated, depending on how the Supreme Court of the United States (SCOTUS) rules in a pair of key cases it will hear later this year.

I. Myriad and Patenting the Human Genome

The first case shaking the biotechnology agency is a lawsuit filed by the Association for Molecular Pathology, the Public Patent Foundation (PUBPAT), and the American Civil Liberties Union (ACLU) against Myriad Genetics, Inc. (MYGN) and the University of Utah Research Foundation.

Myriad and the University of Utah had patented a pair of genes -- BRCA1 and BRCA2 -- which are associated with breast cancer.  They, and other human gene patent holders claim that isolating human genes makes them patentable, despite the same gene appearing in nature.  They feel that their patents entitle them to block research on the human genes, unless various companies and research institutions pay their fees.

BRCA Genes
Myriad "owns" two critical human genes involved with breast cancer.

Critics say this approach is unethical and immoral.  They also argue that it illegal under provisions that "human organisms" [source] and "laws of nature" [source] are not patentable.

In 2010 Judge Robert W. Sweet, a federal judge with the U.S. District Court for the Southern District of New York, sided with the plaintiff's argument, ruling that human gene patents were invalid.

Now SCOTUS must decide whether to toss that decision, preserving the thousands of gene patents, or uphold it, throwing the biotech industry into chaos.

Oral arguments in the case will begin April 15.

II. Monsanto and Second Generation GMO Seed

The other significant case involves a 75-year-old southwestern Indianan farmer's case against Monsanto Comp. (MON) regarding genetically modified organism (GMO) crop lines.  Lawyers for Vernon Hugh Bowman argue that companies like Monsanto should not be able to stake ownership to the offspring of GMO crops capable of reproduction.

Monsanto argues that ruling second-generation crops patent-free would "devastate innovation in biotechnology", commenting, "Investors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies."

One acre of GMO soybeans can produce enough beans to seed 26 acres of crop.  In other words if the SCOTUS sides with Mr. Bowman, GMO seeds may be a one-time purchase for careful farmers.

Farmers are upset about Monsanto's lawsuits. [Image Source; AP/Greenpeace]

Currently, Monsanto requires farmers to sign contracts not to save seeds.  It has filed 140 patent lawsuits against 410 farmers and 56 small farm businesses, according to The Center for Food Safety.  While most of the cases were settled out of court, Monsanto scooped up $23.67M USD in judgements from the farmers who did try to fight it in court.

Mr. Bowman's case revolves around Roundup, a popular pesticide used on 90 percent of soybean crops in the U.S.  Monsanto produced a special patented breed of soybean dubbed "Roundup Ready", which is immune to the herbicide.

Traditionally Mr. Bowman paid for a preliminary order of Roundup Ready soybean seeds each year.  But for his second crop he bought commodity soybeans from a local grain elevator, as that crop is more often prone to fail and Monsanto's seed is expensive.  The elevator grain consists of a blend of soybeans, most of which are Monsanto-derived crops.  Mr. Bowman argues he should not be held accountable for using that crop.

In 2007 Monsanto sued Mr. Bowman and in 2009 the U.S. District Court for the Southern District of Indiana ordered Mr. Bowman to pay $84,000 USD in damages. That decision was upheld [PDF] in 2010 by the U.S. Court of Appeals for the Federal Circuit.

III. Monsanto Case Takes Different Angle: Patent Exhaustion

Unlike the Myriad case, the Monsanto case does not look to directly challenge the patentability of GMOs.  Rather, it argues that GMO crops should be eligible for patent exhaustion -- once [their seeds] are sold, the patent should no longer apply, they argue.

Mr. Bowman has done much of the research for the case himself on a library loaned computer (as he does not own a PC).  He is represented by Mark P. Walters of the firm Frommer Lawrence & Haug, which took the case on pro bono.  Despite the firm offering its services pro bono, Mr. Bowman has still been forced to pay over $31,000 in legal fees.
Vernon H. Bowman
Vernon H. Bowman [Image Source: Aaron P. Bernstein for The New York Times]

In an interview with The New York Times, he states, "I was prepared to let them run over me.  but I wasn’t getting out of the road."

A date for the arguments has not been set.

Admittedly the cases are very different in several ways, but cumulatively they should prove a critical test of whether companies can reliably (and legally) patent living organisms.

Sources: SCOTUS [1], [2], The New York Times

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By tng on 2/19/2013 4:12:29 PM , Rating: 5
I would say that common sense should prevail here (assuming that I have it) and since the genes were not necessarily created by these people and are, in a sense, prior art, they are not patentable.

Myriad and the University of Utah had patented a pair of genes -- BRCA1 and BRCA2 -- which are associated with breast cancer.
Since the genes responsible for this are now the property of an entity, can that entity be sued for the illness that the genes created? Not sure, but just throwing stuff out there.

RE: Riduculous
By DNAgent on 2/19/2013 4:36:49 PM , Rating: 3
Nah, they're going to sue everyone for making new BRCA genes when they reproduce and for using BRCA genes to repair DNA in everyday life.

RE: Riduculous
By Solandri on 2/20/2013 3:13:26 PM , Rating: 2
I don't have a problem with it if they apply a common-sense rule: With ownership comes responsibility. If I "own" a gene which causes breast cancer, then I am financially responsible for all the harm that comes from breast cancer. If I "own" a gene which causes plants to be resistant to Round-Up, then I am financially responsible for all the harm it causes (e.g. it infects fields of orgranic crops trying to remain GMO-free).

You cannot reap the benefits of the good from owning something, while simultaneously disavowing yourself from any harm which originates from that same something.

RE: Riduculous
By mutatio on 2/20/2013 4:48:05 PM , Rating: 2
I would agree. The issues I see with patented genetics, GMOs, and even nano technology is that everyone wants profit without consideration for the cost. For nano tech, one of the first questions that occurred to me was, "Okay, so what happens to all of these particles in our environment and more specifically, within us?" It wasn't too long before some studies were published indicating that, indeed, nano particles were accumulating or becoming lodged in tissue and cells. Needless to say, this is not a good thing if there is no complementary technology for insuring safety and or "harvesting" of what is put out into the world. With GMO crops we still have an uncertain future with them as some have been highly problematic (read: toxic) and, as noted, we run the risk of these unpredictable genetics being spread to non-GMO plants. With all of that said, if this sort of stuff gets the green light from the Supreme Corp., um, I mean Supreme Court, we'll be on our way to a Blade Runner future where everything will be owned by some corporation. Meh.

RE: Riduculous
By Trisped on 2/19/2013 5:21:52 PM , Rating: 2
The issue is not so much the gene its self, but the time and resources required to identify the link to cancer.

The researchers need a way to guarantee that they are compensated for their research. That being said, patents do not seem to be appropriate. They did not create the gene, they found it.

The genetically engineered crops is a different matter. If I understand correctly, Monsanto create the gene group which provides the desired properties (resistant to Roundup). What I do not understand is why Monsanto is suing Mr. Bowman. He paid for his first crop from Monsanto, and the second crop he paid for and received from a different supplier.

If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission. Better yet, they should upgrade their contract to require growers to not sell to individuals who will resell it as seed. They could even make the contract similar to those used in open source projects, requiring any user (or in this case purchaser) of the original seeds or the results of the growth to acknowledge and accept the agreement.

RE: Riduculous
By tng on 2/19/2013 5:35:31 PM , Rating: 4
If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission
Well, Monsanto has a history of suing people who are less able to defend themselves thinking that an example needs to be set or maybe they are just mean. Suing a co-op or larger corporation is not what they like to do, corporations are more able to defend themselves.

RE: Riduculous
By tng on 2/19/2013 5:39:43 PM , Rating: 2
The issue is not so much the gene its self, but the time and resources required to identify the link to cancer.
Yes there were resources used to research this, but if it was only the University of Utah involved, they would just publish. The problem is when private industry becomes involved there has to be a profit involved.

There are some good uses of government grants and this is one of them.

RE: Riduculous
By Hakuryu on 2/19/2013 6:07:04 PM , Rating: 5
Neighbor plants Monsanto, you don't, in a couple of years you get sued for having seed with Monsanto characteristics. This is how Monsanto operates; even being accused of cheaply selling seed to neigbors of people who refuse to buy their seed, so in a few years they must buy Monsanto or get sued after pollination does it work. Lots of good docs about this.

RE: Riduculous
By bah12 on 2/20/2013 12:04:39 PM , Rating: 2
Also check out the show Food Inc. interesting documentary about the food industry. Absolutely amazing how ruthlessly these guys protect their seed.

RE: Riduculous
By FaaR on 2/19/2013 7:09:10 PM , Rating: 3
If anything, Monsanto should be suing the local grain elevator for distributing their product without their permission.

It's not their crop when bees - whom have existed for millions of years - cross-pollinate regular crops with monsanto-patented pollen.

If this was to be taken to the extreme that shitpile companies like Monsanto want, they would eventually be able to tax every farmer for every harvest, in perpetuity, simply because GMO crops pollute existing, as well as wild strains of crops.

Imagine having to pay every god damn GMO corporation who ever released seeds with patented genes on the market. What a nightmare - for us. It's the ultimate wet dream of Monsanto executives.

RE: Riduculous
By DiscoWade on 2/19/2013 7:24:53 PM , Rating: 2
The funny thing is I know two farming families who think Monsanto is the best thing to farmers since the plow. I'm not saying Monsanto is an upright respectable company, but it is my opinion, talking to the farmers I know, that Monsanto isn't as bad as their reputation states. As the saying goes, there are three sides to every story: What he says, what she says, and what really happened.

Personally I hope the Supreme Court invalidates patents on genetics. There needs to be another way to compensate and thus encourage companies to do genetic research. I think patenting the building blocks of life is fundamentally wrong. Where will it end?

RE: Riduculous
By lilBuckwheat on 2/20/2013 7:13:33 AM , Rating: 2
Are your friends from India?

The third side to this story drank insecticide in his own barren field.

RE: Riduculous
By Strunf on 2/20/2013 7:43:31 AM , Rating: 2
Monsanto is not so bad if you're in bed with them, they make plants that are more resistant to plagues and hence the farmer using them doesn't need to spray as many chemicals on their crops as everyone else, this is a good thing, it only turns bad when you realize your plants don't live in a contained space and that you are also contaminating the plants nearby (actually it could be kms away), and it turns even worst when Monsanto actively goes after your neighbor cause he was unlucky enough to be a neighbor of someone using OGM crops.

The least Monsanto could do is to offer the neighbors at a FRAND price new seeds (OGM free) each year in a way that they will not use the OGM contaminated seeds from last year.

There are three sides of the story but not the ones you point, there are the farmers that happily use Monsanto seeds, the ones who chose to not use them and the others who don't care about it, the last two are the ones that will eventually get Monsanto knocking on their doors claiming they are using seeds with their patented genes.

RE: Riduculous
By GotThumbs on 2/20/2013 8:21:19 AM , Rating: 2
Yes, but I've got a patent pending for Bee's, so any farmer, land owner whose crop/flowers are pollinated by a Bee will owe me 5 cents each instance.

I should have about 10,000 cases filed in US courts by summers end.

(Sarcasm of course)

RE: Riduculous
By 91TTZ on 2/20/2013 3:44:56 PM , Rating: 3
The issue is not so much the gene its self, but the time and resources required to identify the link to cancer. The researchers need a way to guarantee that they are compensated for their research.

"There is a single light of science, and to brighten it anywhere is to brighten it everywhere."

The thing about science is that discoveries should be public. If anything, the scientist who discovers something gets to put their name on it.

Can you imagine if someone patented the existence of Mars or Neptune? Or what about the atom? It took a lot of researching to discover these things.

RE: Riduculous
By Reclaimer77 on 2/19/13, Rating: 0
RE: Riduculous
By roykahn on 2/19/2013 7:30:42 PM , Rating: 5
Must you bring Obama into EVERY topic? Do you have nightmares about him? Have you customized your keyboard so that there's an Obama key to save you 10% off your total typing time?

And just to stay on-topic: down with Monsanto!

RE: Riduculous
By tng on 2/19/2013 8:48:44 PM , Rating: 2
And just to stay on-topic: down with Monsanto!
Do you have nightmares about him?
Ha! Wait... You Don't?

RE: Riduculous
By inperfectdarkness on 2/20/2013 12:15:58 AM , Rating: 5
I agree. F**k Monsanto. Name me ONE good thing this corporation has done in its entire existence.

Meanwhile, I present evidence:

A. Lawsuits against farmers whose crops were contaminated by WIND blowing from other farms.

B. Agent Orange

C. This article

RE: Riduculous
By chripuck on 2/21/2013 10:26:24 AM , Rating: 2
Ummm, they've created disease and drought resistant crops that require less resources to grow effectively. They help farmers make more money and help more people have food to eat.

While I don't like the idea of them suing non-Monsanto farmers due to cross pollination, they put a lot of money into researching and developing these strains of crops. This is not some clear cut line in the sand here.

That being said, the BRCA genes is complete crap. It is madness that you can patent a naturally occurring gene.

RE: Riduculous
By roykahn on 2/21/2013 7:42:48 PM , Rating: 2
I bet a lot of the research and development was funded by the government. They also use as much intimidation they can to bully farmers into using their products. As others have pointed out, there is much information about their bad behavior. They are definitely NOT in the business of helping farmers make more money. Just like any corporation, they are in the business of maximizing their own shareholders' wealth.

According to Monsanto, there IS a clear-cut line in the sand. If they even sniff an opportunity to sue someone then it's full steam ahead, captain!

RE: Riduculous
By GotThumbs on 2/20/13, Rating: 0
RE: Riduculous
By Reclaimer77 on 2/20/13, Rating: 0
RE: Riduculous
By GotThumbs on 2/20/2013 8:14:30 AM , Rating: 2
I agree with your statement about these people having "Not" created these genes and thus should not be able to patent them. It that were the case, then I'm going to start patenting the earth, dirt, grass, etc..

Unfortunately your statement about "Common Sense" prevailing is not as strong. Our Supreme Court has not displayed common sense as they once did and our presiding president has no hesitation in public intimidation of this branch if they don't see it his way IMO. We'll have to wait and see on this.

Common sense in our society has been failing for years now IMO.

Best Wishes,

RE: Riduculous
By Reclaimer77 on 2/20/2013 3:30:59 PM , Rating: 2
Well I think we have to be fair and see Biotech's side of things. They are spending billions in research and development of treatments, not for the good of mankind, but to make a profit.

Now of course I'm not saying they should be able to patent human genes. There has to be some way to guarantee the profit motive, while still being sensible.

We have to be careful here. If we destroy the profit motive, there will be little incentive to pioneer medical treatments and the research field will stagnate. We can't have that imo.

RE: Riduculous
By chripuck on 2/21/2013 10:28:54 AM , Rating: 2
The BRCA gene patent is ludicrous. You patent the treatment, not the discovery of the gene that creates the problem. Simply isolating the gene is just part of the process of creating a treatment/cure. It would have been like Henry Ford patenting hydrocarbon ignition while he was inventing the car.

RE: Riduculous
By Paj on 2/20/2013 8:21:40 AM , Rating: 2
I would say that common sense should prevail here (assuming that I have it) and since the genes were not necessarily created by these people and are, in a sense, prior art, they are not patentable.

Agreed. It's like patenting lightning, or the Higgs Boson.
Patenting the lightning rod? Or the ATLAS detector? Both perfectly acceptable uses of the patent system.

For an excellent take on what happens when biotech gets out of control, read Paolo Bacigalupi's Pump Six - great collection of short sci fi stories. This case sounds pretty similar to some of the scenarios mentioned there.

These two stories are not related
By Varun on 2/19/2013 4:48:22 PM , Rating: 2
Not sure why they are even together. The lawsuit is different.

I hope the supreme court does uphold that you can't patent the human genome. It's something that was invented by nature. If you didn't invent something then you shouldn't be able to patent it. The process to map it? Sure (Amd I am sure it has been patented).

The Monsanto thing is different. What they created was something that wasn't in nature to begin with. If you sign a contract not to hold any seeds, then you signed a contract. If you don't agree with the contract, there is nothing forcing you to buy the seed. You can always buy regular soybean and canola seed. There's even a big market for non GMO products. This is the only way for Monsanto to recoup the huge R&D they put into the crop. It's not like they can recoup it on the RoundUp - that patent has already expired.

RE: These two stories are not related
By fic2 on 2/19/2013 5:03:25 PM , Rating: 2
But, Bowman didn't hold the seed. He bought it from a grain elevator. Is it Bowman's fault that it contained Monsanto seed?

But for his second crop he bought commodity soybeans from a local grain elevator, as that crop is more often prone to fail and Monsanto's seed is expensive. The elevator grain consists of a blend of soybeans, most of which are Monsanto-derived crops. Mr. Bowman argues he should not be held accountable for using that crop.

RE: These two stories are not related
By ppardee on 2/19/2013 7:08:29 PM , Rating: 2
The problem with Monsanto is they can come and check your crop to see if you're using their seeds even if you haven't signed a contract with them. If your land has a single Monsanto plant on it, they can sue you without even having to prove that you deliberately planted it. From what I understand, they are doing this frequently, then making you pay them for their crops whether you use them or not.

I have no problem with people who signed a contract not to hold seeds being prosecuted for holding seeds. It's the mafia tactics I have a problem with, and the patent is what allows them to do it.

RE: These two stories are not related
By Strunf on 2/20/2013 7:47:54 AM , Rating: 2
Exactly, the pollen containing their patented gene can travel kms and pollinate someone else crop without them even knowing it, then Monsanto comes around and you either pay or "burn your field to the ground"!

RE: These two stories are not related
By Varun on 2/20/2013 8:12:38 AM , Rating: 2
Hmm this story is more fishy than first reported here. It seems the farmer bought the soybean at the elevator, and sprayed roundup on it knowing it would be mostly RoundUp Ready. What kind of a farmer would take that kind of a gamble? If he was wrong, his entire investment would be wiped out.

I think he's trying his best to plead innocent but it certainly seems he knew what he was doing. I find it hard to believe an elevator would sell him this knowing the repercussions.

By hero_of_zero on 2/23/2013 1:35:14 PM , Rating: 2
Not even that what stops Monsanto having a few guys on the pay roll that wants a nice bonus check that goes into someones fields at night that they have issues with that don't use Monsanto seeds and toss a few hand full of seeds into the person fields?Farmers that have fairly large fields it be hard to see or even prove that someone did it to start with.

RE: These two stories are not related
By Varun on 2/20/2013 8:04:45 AM , Rating: 2
Actually that's a fair point. I've heard of several cases where farmers claim that their field got contaminated by their neighbors. I guess that's what the courts are for. The biggest issue with the courts is the cost though - and time.

I don't get it.
By Cargan Ricman on 2/20/2013 1:39:04 AM , Rating: 2
Ok, can someone please explain to me how Monsanto can successfully sue anyone and win?

If I was a farmer and I was sued by Monsanto for inadvertantly having their crap plant genes in my field due to natural seed migration or cross-pollination from neighboring fields, I'd just counter sue stating that I specialize in raising bona fide non-GM crops and that my farm/business has been severely damaged due to their crap GM seeds infiltrating my fields against my will/wishes and ruining my pristine non-GM crops! Since Monsanto has gone the extra mile to identify that their crap GM plants are now spoiling my once pristine fields, they should be held liable and be forced to come in and remove their crap from my land and pay me damages for all of my losses since I can no longer sell my crops as non-GM while their shite<sic> is contaminating my land. How is that not a winning legal argument?

RE: I don't get it.
By twhittet on 2/20/2013 3:54:14 PM , Rating: 3
Not sure why you were rated down, but - yes, that is actually happening. Organic farmers did try to sue Monsanto - for that reason, but mostly as a defensive reaction to Monsanto suing every farmer they can. I think they had more of a case than this farmer, but lost.

Monsanto has tons of money, has been lining the pockets of politicians and lawyers for many years - so they are not an easy foe to go against.

RE: I don't get it.
By chripuck on 2/21/2013 10:34:06 AM , Rating: 2
The problem with your scenario is burden of proof. It is not Monsanto's land therefore the burden lies on the farmers proving that Monsanto purposefully planted GMO crops on their lands.

The flip side, at least how it SHOULD operate, is that Monsanto should have to provide proof that the farmer purposefully planted their crops. In the case above, it appears the farmer sprayed his soy crops with RoundUp because he knew they could take it, hardly the actions of an unknowing farmer.

Seems to me
By Ammohunt on 2/19/2013 4:46:58 PM , Rating: 2
That adjusting farming practice would go along way towards avoid using Monsanto products entirely. You can plant regular corn seed 3 days after a light application of Round-up which will get the majority of the weeds. if all you are growing is feed corn that is going to be chopped and turned into ensilage anyway who cares if there are a few weeds in it. To Monsantos point whats stopping someone from buying their seeds once then reselling the seed produced from it gaining the same benefit? Perhaps Monsanto would be wise to lower their prices so farmers weren't compelled to do this type of thing and endear themselves to their only customers.

RE: Seems to me
By Rickroll on 2/19/2013 8:19:26 PM , Rating: 2
I think a lot of the farmers are being sued because of inadvertent cross pollination and seed migration due to animals. The majority of the small farmers do not have the resources to fight this. Sure, the large corporate farmers love Monsanto.

I agree with the previous poster, I have no idea how Monsanto could legitimately win a suit against someone who bought seed from a independent grain elevator. I bet Monsanto can make it expensive to fight though.

I wonder if there is a way to detect cross pollinated seed, or even 3rd or 4th generation seed. I agree companies should be given a way to recoup their R&D costs. However, I imagine since creating seed that is resistant to a certain Monsanto product (roundup), they might make a good deal on improved roundup sales. I wonder if a shorter term patent term might be a answer ? If the patent were to expire in 2 or 3 years, by the time there is genetic saturation it won’t matter, financially anyways.

Seems easy.
By NellyFromMA on 2/19/2013 9:46:54 PM , Rating: 2
IT should be unethical to patent a gene or really an organism at all.

In the case of the bioengineered soy bean, I'm not sure what the right answer is but the problem is clearly in the business model. A terrible analogy would be selling puppies and wanting profits from subsequent 2nd generation puppies sold. That's nuts.

These company's aren't stupid. They know this is a gamble. Even if this fails, there are many other patentable things such as testing procedures, equipment. To think I could be born with something patented for life is disgusting.

RE: Seems easy.
By geddarkstorm on 2/20/2013 12:40:48 AM , Rating: 2
If you create a -completely- artificial gene, that could be reasonably argued to be patentable, -maybe-. But a gene that already exists? No.

We scientists are passive, working in the shadows, folk by and large, but this is one matter I hope we will simply not allow.

Cancer patent
By Fujikoma on 2/20/2013 12:40:06 AM , Rating: 2
If you are allowed to have a patent on two cancer genes, then you are responsible for the damages/wrongful death suits from those same genes. Having a patent for a very specific method of finding the genes is one thing, but you shouldn't be able to patent something that came about from nature and you happened to find, regardless of the amount of research and public money involved.

Big Decision
By gamerk2 on 2/20/2013 7:47:43 AM , Rating: 2
I don't think I'm understating this: The is one of the most important cases in a VERY long time, because this will affect how the entire medical industry does business going forward.

That being said, I get the sense, based on the arguments, of a 5-4 conservative opinion on this one.

Conflict of interest
By DaSHinVegas on 2/20/2013 8:49:22 AM , Rating: 2
Problem is, there is someone like Clarence Thomas presiding. Despite having been a Monsanto lawyer, does anyone think he will recuse himself from the case? Does anyone think he will decide for anything but in Monsanto's favor? Sickening.

Discovery or invention
By MZperX on 2/20/2013 12:10:54 PM , Rating: 2
1. The act of finding (something or someone) unexpectedly or in the course of a search.
2. Becoming aware of (a fact or situation).

So, by definition, the "something" must have already been there, must have been in existance, before discovery can be made. Genes are discovered. Links between genes and desease are discovered. It should be obvious that discoveries should not be patentable. The method of discovery could be, a product or process developed utilizing the new information from the discovery could be. But not the discovery itself.

Invent: Create or design something that has not existed before; be the originator of.
Ivention: Something created or designed that had not existed before.

Inventions can be patented. So, for example Monsanto could come up with a way to stop breast cancer cells from spreading, or something that would prevent them from forming in the first place, and that invention could be patentable (unlike the genes which were already present in the cancer cells).

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