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  (Source: Word of the Nerd)
Veteran Judge Posner says "animals" like Apple are just exploiting the weapons an ineffectual gov't has created

"It's a constant struggle for survival.  As in any jungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem," states Judge Richard A. Posner in a recent interview with Reuters.  

As a sitting judge on the Seventh Circuit Court of Appeals who occasionally moonlights as a judge in Chicago's U.S. District Court, Northern District of Illinois, Judge Posner has watched the devolution of America's intellectual property system over the past several decades.

I. Google v. Apple -- A Symptom of a Broken System

The most recent disheartening blow was the trial between Google Inc. (GOOG) via its subsidiary Motorola Mobility and Apple, Inc. (AAPL).  Both companies clung to a handful of software and hardware patents, and neither agreed to cooperate or license.  The "animals" were out for only one objective -- blood.

Apple has been particularly vicious in this ecosystem, suing every major Android manufacturer in dozens of courts worldwide.  But as global intellectual property systems have come to mirror the patent system of the United States due to its role as a global economic leader, Apple's most pivotal battleground has been the U.S.

Judge Posner disappointed both Google and Apple when he threw their respective lawsuits out of court.  He said that while both companies had legitimate infringement claims, that he would not tolerate their refusal to license or attempts to abuse the patent system as an anticompetitive tool.

The senior justice is no spring chicken.  At 73, he is one of the older and more respected voices in intellectual property law.  Nominated by President Ronald Reagan to the Seventh Circuit Court of Appeals in 1981, he's kept very busy penning dozens of books on economics and intellectual property law.

Tiger with kill
Judge Posner called Google and Apple "animals" who are simply using the weapons given to them by a broken system to try to kill each other. [Image Source: Tambako]

And what all his experience has taught him is that there's little hope for software patents and other types of intellectual property to be used as anything but anticompetitive weapons.

He comments, "It's not clear that we really need patents in most industries.  You just have this proliferation of patents.  It's a problem."

The patent system has its advocates, but it's hard to argue that there isn't some truth in Judge Posner's observation.  Smartphone makers today are compelled to patent every single feature, no matter how trivial, from animations to icons.  Then they are compelled to waste money and resources to sue each other in a never ending legal war whose ultimate goal is arguably a quest for a state-enforced monopoly.

II. The Rises of the Trolls

In addition to the actually productive companies who abuse the system to try to gain an anticompetitive advantage, the broken system has spawned the so-called "patent troll" -- a company that produces nothing, and exists only to sue and extort money from others.

There's a great deal of cross pollination between the trolls and the legitimate firms.  For example, Chicago Public Media and Public Radio International in the This American Life episode "When Patents Attack" note that one of the world's largest patent trolls, Intellectual Ventures LLC, is headed by the former Chief Technology Officer of Microsoft Corp. (MSFT) Nathan Myrhvold.

Cave Troll
Many "patent trolls" simply sue people, while producing nothing of worth.
[Image Source: New Line Cinema; Fair Use clause TITLE 17 > CHAPTER 1 > § 107]

The favorite tactic of a patent troll is to file lawsuits in such a way that it's cheaper to settle than to fight the lawsuit in court.  As a result, company are bled resources that could be directed towards legitimate develop that instead serve as a feast to the leeches.

Not all branches of the software industry follow this model.  For example, the internet largely avoids patent litigation.  And that is fortunate.  If the internet followed the smartphone model, every website button, every font, every animation would be patented and few sites would exists, because only the large and powerful could maintain a sufficient arsenal to survive.

Instead, the internet opts for a democratic/collectivist solution where everyone works on common standards that are free for all.  And despite claims from some industry figures that patents are "essential" to preserving "innovation", the internet has thrived and developed with remarkably few pesky patents.

III. A "Non-Biased" Observer

Despite handing Apple its biggest defeat on American soil, Judge Posner says he's a non-biased party.  He even owns an iPhone, having upgraded from his trusty Research in Motion, Ltd. (TSE:RIM) BlackBerry.  But he comments, "I'm not actually that interested in becoming part of the smartphone generation."

The Apple suit had actually been filed in Wisconsin Federal Court -- a court known to be relatively plaintiff friendly.  However, Apple's "safe bet" became anything but when Judge Posner's friends in that court accepted his request to transfer the case to the Chicago court -- his local stomping ground.

Now the ball was in Judge Posner's court.

Judge Richard Posner
Judge Richard Posner says the U.S. patent system is broken.
[Image Source: Abel Uribe, Chicago Tribune]

Following the dismissal, Judge Posner says he does not begrudge Apple despite his frustration and its lawyers.  With $110B+ USD in the bank, Apple should be unharmed by the ruling, comments Judge Posner.  He argues Apple doesn't need to sue people.

Apple seemingly agrees.  CEO Timothy Cook recently commented, "[We have] more than we need to run the company."

IV. Cleaning Out the Junk

Not everyone agrees.  Judge Lucy Koh in U.S. District Court for the Northern District of California (San Jose/San Francisco) has written opinions that Apple would be "irreparably harmed" if Samsung Electronics Comp., Ltd. (KSC:005930) is allowed to continue to sell products that infringe on Apple's patents, such as the claim to design ownership of a rectangular tablet.

She has subsequently banned sales of the Samsung Galaxy Tab 10.1 tablet and Galaxy Nexus smartphone.

However, Judge Posner’s voice is arguably among the most respect in American intellectual property law, and his endorsement of reassessing the validity of patents in certain sectors such as software is a pivotal one.

And there are signs that his counterparts overseas are moving in the same direction.  In England, a UK court has invalidated several key European Union patents that Apple was using to sue Android smartphone makers.  The court blasted Apple in its ruling, saying it re-patented already patented ideas and patented features already found in other products.

A perfect example is Apple's patent on a "bounce animation", which was narrowed in the ruling.  A bounce animation is essentially a transient response, one of the most obvious kinds of animations that one could devise.  

Android Gingerbread Gallery App
Browser App Gingerbread
Bounce animations on an HTC EVO running Android 2.3 "Gingerbread"

In nature things seldom just stop -- they have an elastic response, overshooting and then "bouncing" back into a resting position.  Thus an animation -- like the one Apple patented -- of a scrolling or pinched object "overshooting" and then "bouncing" back into place is one of the most obvious and natural ideas ever, and has been done countless times in video games since the late 1980s/early 1990s.

The UK decision represents one possible conservative route to start implementing Judge Posner's suggested reforms -- scrap redundant and obvious software patents.  

There are often literally dozens of duplicate patents on a specific technology.  And there are literally tens of thousands (or more) patents that should not have been granted due to their obviousness.  Thus, before any serious moving of the patent system occurs, it might be ideal to simply clean out the "junk in the attic" so-to-speak, as the UK court did.

Source: Reuters

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Found the problem.
By elleehswon on 7/6/2012 2:02:40 PM , Rating: 2
IV. Cleaning Out the Junk Not everyone agrees. Judge Lucy Koh in U.S. District Court for the Northern District of California (San Jose/San Francisco) has written opinions that Apple would be "irreparably harmed" if Samsung Electronics Comp., Ltd. (KSC:005930) is allowed to continue to sell products that infringe on Apple's patents, such as the claim to design ownership of a rectangular tablet. She has subsequently banned sales of the Samsung Galaxy Tab 10.1 tablet and Galaxy Nexus smartphone.

I think, Apple selling only one product every 9-12 months is what's irreparably harming them. If they want more market share, they should start diversifying their product line. The goal should not be giving the customer what you want to give them, it should be giving them what they want. If apple did this in the first place, android would not have had the market saturation it has. Oh well, apple made their bed, now they get to sleep in it as they slowly get pushed out of the market. Also, Tony, you're misrepresenting iphone owners. That guy Judge Posner seems pretty on the level.

RE: Found the problem.
By ilkhan on 7/6/2012 2:23:36 PM , Rating: 5
Giving the customer what the customer wants isn't an option for Apple.
They've been ignoring that concept for decades.

RE: Found the problem.
By Argon18 on 7/6/12, Rating: 0
RE: Found the problem.
By GulWestfale on 7/6/12, Rating: 0
RE: Found the problem.
By StevoLincolnite on 7/6/2012 6:24:51 PM , Rating: 2
That was the scariest 3 minuets of my life.

RE: Found the problem.
By Apone on 7/6/2012 2:55:10 PM , Rating: 5
I understand your reasoning with the presentation of sales figures, but the following quote from Steve Jobs directly sums up ilkhan's comment:

"People don't know what they want until you show it to you them." - Steve Jobs in an interview when asked how he feels about marketing focus groups.

RE: Found the problem.
By testerguy on 7/7/12, Rating: -1
RE: Found the problem.
By aliasfox on 7/9/2012 10:57:55 AM , Rating: 4
"If I had asked people what they wanted, they would have said a faster horse."

- Henry Ford

Focus groups are good for refining ideas that are already on the market, not those that have yet to hit the collective public consciousness.

RE: Found the problem.
By BladeVenom on 7/9/2012 4:18:14 PM , Rating: 2
“Any customer can have a car painted any color that he wants so long as it is black”." -Henry Ford

See how that worked out for them, when their competitors gained ground by offering more options.

RE: Found the problem.
By aliasfox on 7/9/2012 4:30:10 PM , Rating: 3
Little known bit of trivia - the Model T was actually offered in a variety of colors very early on in its model run - producing later models in all black was a move towards streamlining the production process rather than 'giving customers what they want.'

There's definitely value in fixing broken things with focus groups, but the general population has no idea what it wants if it hasn't seen it. If you went to 1977, showed people a DOS-based computer or a mainframe terminal, how many of them would have made a conceptual leap to GUI interfaces that started popping up 4-5 yrs later?

Another example from the automotive world: Focus groups say they want flexibility, cargo room, aggressive looks, and a low price. GM gave the world the Pontiac Aztec.

RE: Found the problem.
By MrBlastman on 7/6/2012 3:09:41 PM , Rating: 5
Huh? I think their sales records, profit records, stock market cap, etc. all speak for themselves. They are clearly giving customers *exactly* what they want.

No, they give customers what the think they want. Didn't anyone tell you that's what "Think different" means?

Then, when buyers remorse sets in, and it is inevitable because of how Apple plans its introduction of new products--to generate buyers remorse, the customers flock to the next iteration because their old one is grossly inferior (by perception alone) so they can look like they are in "style" once again.

Apple isn't about giving people what they want, it is about making people want what they have even though it is junk disguised with a pretty wrapper and a fancy bow. This is what we call, in the rational world as, to a coin a phrase, "Think sanely."

RE: Found the problem.
By Jeffk464 on 7/6/2012 6:40:19 PM , Rating: 2
NO they aren't, apple tells the customer what they want.

RE: Found the problem.
By Reclaimer77 on 7/9/2012 1:24:08 PM , Rating: 2

You don't want Flash
You don't want optical drives
You don't want multitasking
You don't want SD storage

/Jedi Mind Trick

RE: Found the problem.
By Natch on 7/9/2012 11:26:03 AM , Rating: 2
Rather, Apple gives customers exactly what Apple wants them to have.....nothing more, nothing less. Thus, the "You don't need that feature" concept.

And if Apple was giving people what the people wanted, I don't believe Android would have the market share they currently enjoy.

RE: Found the problem.
By tamalero on 7/9/2012 12:01:41 PM , Rating: 2
more like the costumers had to deal with it and adapt to what apple offered because it is "hipster" or "in" or "the cool thing to have".

RE: Found the problem.
By johnsmith9875 on 7/12/2012 5:15:57 PM , Rating: 2
The customer doesn't know what they want...that's the genius of Apple.

RE: Found the problem.
By Samus on 7/6/2012 2:38:55 PM , Rating: 2
I remember when Steve Jobs bragged in an interview about a phone conference he had with the CEO of [I belive Nike] about how to make quality products and maintain profitability, and Jobs' simply replied

"stop making so much junk"

"Apple doesn't know how to make a $500 computer that isn't crap"

'when he took over Apple we made hundreds of products, printers, modems, thousands of SKU's, and when I was done cleaning house we had 12 SKU's'

If any of that was true, HP, Google and Microsoft would all be unprofitable. Sure, certain sectors of companies don't make money, but thats what diversification is all about. Ford doesn't make much at all selling Fiesta's, but they make a fortune on the F150, and the Fiesta keeps their CAFE industry average in check by raising their fleet fuel economy as a bonus.

This is much like how HP sells crappy computers and printers at a near-loss, but it balances out by pushing competing products to market and moving profitable ink cartrages.

I'm not saying companies should saturate the market with crap, like what has happened with Android phones/tablets, but Apple is inherently anti-competitive because their whole business model us based on making as few products as possible at the highest margin in tech, while patent trolling when a product competes with them in a sector they don't even market too.

The cheapest tablet Apple has is $500 and the cheapest phone (off-contract) is $500-$650 (AT&T/Virgin Mobile)

Maybe people want a decent $200 tablet and a basic $200 Android phone like the Nexus 7/Kindle Fire/Nook Color or take your pick of quality $200 off-contract Samsung and HTC smartphones. I have a Samsung Transform Ultra and Conquer 4G with Ting (Sprint) and I could never justify a $500+ iPhone, especially since I prefer pre-pay and non-contract plans where it won't be subsidized.

RE: Found the problem.
By Kurz on 7/6/2012 3:23:35 PM , Rating: 2
The Nexus phone is $350 off of contract!!!
I would assume they make huge profit on it as well.

The Profit margins on Iphones are insane, But corporations, and people are willing to pay these vast sums of money.

RE: Found the problem.
By Chadder007 on 7/6/2012 3:27:54 PM , Rating: 2
Apple decides what the public wants.

RE: Found the problem.
By Jeffk464 on 7/6/2012 6:31:46 PM , Rating: 2
Just add it to the list of everything else thats broken.

RE: Found the problem.
By Jeffk464 on 7/6/2012 6:39:43 PM , Rating: 3
"I think, Apple selling only one product every 9-12 months is what's irreparably harming"

Absolutely android phones are always ahead in features from screens, to LTE, to faster processors. Plus their is more than one phone choice, you can get a 3.5" screen all the way through a 5" screen. Apple needs to compete at the product level.

RE: Found the problem.
By avxo on 7/7/2012 11:43:27 AM , Rating: 1
Apple needs to compete at the product level.

Anti-competitive behavior aside, that's a ridiculous statement.

Should Ferrari compete in the "sub-compact city car" segment just because they compete in the "supercar" segment?

Should Lockheed-Martin compete in the "personal plane" segment just because they compete in the "exotic military planes" segment?

Should McDonalds compete in the "high-end gourmet steakhouse" segment because they compete in the "fast-and-bad food" segment?

If a company wants to focus on one market segment, then more power to them. Especially if they can do a good job in that market segment.

Apple's patent trolling is unfortunate and counterproductive and I do not endorse or support it. But the notion that Apple must produce phones (or tablets, or laptops, or desktops or whatever) for and compete in every conceivable market segment is nonsense.

RE: Found the problem.
By topkill on 7/7/2012 3:09:24 PM , Rating: 2
If Apple wants to continue to grow as a company they WILL have to compete in more segments.
Right now they do it by being considered "cool" (which won't last forever, despite how it feels right now) and trying to sue everyone else into oblivion.

They are a disgusting company.

RE: Found the problem.
By testerguy on 7/7/12, Rating: 0
RE: Found the problem.
By jakeflow27 on 7/6/2012 11:47:00 PM , Rating: 5
FINALLY... A judge with the comprehensive capacity for the simpleton idiocy of the system

RE: Found the problem.
By theapparition on 7/9/2012 11:42:18 AM , Rating: 2
Thought I'd never see the day.

Keep pandering Mick
By Phynaz on 7/6/12, Rating: 0
RE: Keep pandering Mick
By g35fan on 7/6/12, Rating: 0
RE: Keep pandering Mick
By FlyBri on 7/6/2012 3:54:41 PM , Rating: 5
While these articles may be, to you, too "anti-Apple", it's basically because, from a common sense standpoint, Apple is acting a bit ridiculous lately and bringing it upon themselves. Looking at things objectively, while many of the big tech companies (Google, Apple, Microsoft, etc.) patent troll to some extent, Apple has been egregious in their trolling as of late. Their recent tirade of patent infringement lawsuits on the most insignificant of patents is starting to set even a more shameful precedent on patent infringement than there already is. Jason even mentioned in the article that Judge Posner said that the ecosystem is broken, and companies can exploit the broken system, which is exactly what Apple is doing, and even though it is "in-bounds", it still doesn't make it the best thing to do for the industry. Because of this, now companies are acquiring patents, not for innovation, but for legal protection, and it some cases, for pointless attacks on other companies.

Just like Mark Cuban said -- I hope some small, nothing company sues one of the largest companies for patent infringement for billions of dollars...and ultimately wins. Then you'll see the patent system reformed. Until then, our only other hope is that judges like the ones in England and Judge Posner are the only hope in getting this patent system under control.

RE: Keep pandering Mick
By retrospooty on 7/6/2012 4:59:19 PM , Rating: 5
"While these articles may be, to you, too "anti-Apple", it's basically because, from a common sense standpoint, Apple is acting a bit ridiculous lately and bringing it upon themselves. Looking at things objectively, while many of the big tech companies (Google, Apple, Microsoft, etc.) patent troll to some extent, Apple has been egregious in their trolling as of late."

Exactly. If a person or in this case a company acts like ass, then people treat them like ass. It's not that people (including Jason) are "anti-apple", its just that we are anti-ass.

RE: Keep pandering Mick
By jeffkro on 7/7/12, Rating: -1
RE: Keep pandering Mick
By retrospooty on 7/7/2012 8:27:01 AM , Rating: 2
That's right.... "no school"

RE: Keep pandering Mick
By marsovac on 7/7/2012 10:16:49 AM , Rating: 2
I hope some small, nothing company sues one of the largest companies for patent infringement for billions of dollars

The patent system has made sure this will never happen.

When suing for damages you can get the amount of money you may have lost due to the infringing patent - not the amount of money the infringer has made by abusing the patent.

This effectively means a small company that gets loads of money is a big company in fact - and then the patent system would not change at all.

RE: Keep pandering Mick
By ET on 7/8/2012 4:29:32 AM , Rating: 2
I hope some small, nothing company sues one of the largest companies for patent infringement for billions of dollars...and ultimately wins. Then you'll see the patent system reformed.

It won't happen. When the small company has a chance to win the big one can just offer a settlement or buyout, and that's always more attractive than having to battle in court.

By tfk11 on 7/6/2012 6:21:42 PM , Rating: 5
If a judge rules that a patent should have never been issued then shouldn't there be some form of penalty inflicted upon the issuing patent office?

If not then what's stopping the patent office from simply issuing thousands more baseless patents?

Simply "cleaning up" bad patents one at a time is hardly a solution. Some form of accountability needs to be put into place to prevent the vast majority of patent applications from even being considered.

RE: Accountability?
By Solandri on 7/8/2012 5:38:27 AM , Rating: 2
The U.S. government has sovereign immunity. Basically, you can't sue the government unless it passes a law allowing itself to be sued. And AFAIK there are no laws allowing us to sue it for stupid patents.

RE: Accountability?
By Reclaimer77 on 7/8/12, Rating: 0
RE: Accountability?
By mcnabney on 7/9/2012 9:17:08 AM , Rating: 2
The States actually can't. Some governors are retarded though, so expect whining. The usual method of overturning laws is still in effect - the judiciary. And SCOTUS just ruled on the Constitutionality of the ACA and it passed muster.

All I gotta say is...
By kyp275 on 7/6/2012 3:33:32 PM , Rating: 5
Judge Posner should get +6'd :P

RE: All I gotta say is...
By Mint on 7/7/2012 7:58:12 PM , Rating: 2
Judge Koh deserves some props too. Yes, she allowed the Samsung injunction, but she too has proven that the facts are all that matters in court:
The 1994 Fiddler/Knight Ridder “tablet” shown in the video below created “the same basic visual impression” as Apple’s D’889 patent for the iPad, Judge Lucy Koh decided recently, basically squashing Apple’s last hope of squeezing some money from Samsung or other technology manufacturers.

Judge Koh’s Court found that “Samsung has raised a substantial question regarding the validity of the D’889 patent on obviousness grounds”

(from AndroidAuthority)

Patent Troll Picture
By The Raven on 7/6/2012 6:16:27 PM , Rating: 5
The picture you used is that of a cave troll. Patent trolls are of the same genus, but their species is known for their black mock turtlenecks.

By F00L1SH on 7/7/2012 10:53:48 PM , Rating: 4
I've been following these patent stories here for quite a while now and frankly I don't know of any other site that reports on it so thoroughly. That's a credit to this site.

However, the blatant agenda that comes along with every single new story on this subject is enough to turn me onto another site, if I knew of another covering this so frequently (again, the thoroughness is a credit to the site).

I even agree, in general, with the overall opinion that you guys steam shovel into these stories (software patents = bad, tech companies = insane, some specific companies like Apple = worst of the bunch, greater good of innovation = stymied by greed and sometimes shear pettiness). But the constant hammering of the site's/reporters' opinions in such ham-fisted ways on top of the actual facts/story being reported is unnecessary.

You are reporting the stories. You, more than anyone, know how poorly the straight facts and a thorough narrative of the history of the issue make the bad guys look. There's no need to editorially draw pointed mustaches on their faces or balls and chains on their legs in every single story you publish on this.

I thought the swipe to unlock expose' was great. I mean, it was a patent story on 20 year old technology for unlocking phones and I was actually interested by it, that alone is remarkable and worth praising the author(s)/site. And since that was much closer to an editorial piece I had no problem with the harping on the bad guys in that story. But enough is enough in, what seem to me, to be more straight forward reporting pieces. Anyone following patent stories on a tech news site will follow well-placed links to the opinion pieces that get your agenda across, if they don't already know it. Stop making me wipe away the agenda oozing through my computer screen before I can read your latest reported news on the subject.

JMO Thanks.

By The Raven on 7/6/2012 6:09:42 PM , Rating: 3
Now the ball was in Judge Posner's court
If you ask me, the BALLS are in Judge Posner's court. And by court I mean BVDs. You go, your honor!

the patent system is broken
By kenyee on 7/6/2012 3:42:47 PM , Rating: 2
patents are being granted even though there was prior art..there's an office in TX that does this and most companies in the US know to stuff their weak patents through it...

By The Raven on 7/6/2012 5:56:55 PM , Rating: 2
Someone said it out loud! ;-)

By Newspapercrane on 7/6/2012 8:06:59 PM , Rating: 2
Everyone but Apple is just holding it wrong.

A job for Watson
By WinstonSmith on 7/7/2012 10:13:49 AM , Rating: 2
Looks like they need an expert system based upon IBM's Watson technology to automatically check patents for violation of prior art.

I'm so happy I could cry
By topkill on 7/7/2012 10:44:11 PM , Rating: 2
As someone who has lived on both sides of this patent mess, I am SOOOO happy to see things finally start to turn the corner and come back to reality.

Our patent system is totally out of control and is nothing but a lawyer feeding trough that destroys competition and hurts our economy.

Please keep going.

Judge Koh Conflict of Interest?
By DrChemist on 7/9/2012 10:48:12 AM , Rating: 2
Does anyone else find it puzzling and a bit of a conflict of interest to have a judge who worked for Wilson Sonsini Goodrich & Rosati in Palo Alto from 2002-2008 that represents Apple and has since the 1980 IPO as a conflict of interest? While other big name patent judges are throwing these cases out she is enforcing injunctions and Apple keeps going to her for cases. I may be crazy but it seems very shady to me.

By justsaying on 7/12/2012 3:44:39 PM , Rating: 2
And there are literally tens of thousands (or more) patents that should not have been granted due to their obviousness.

Many, many things are very obvious, once someone has pointed them out or demonstrated them.

By KOOLTIME on 7/12/2012 8:55:31 PM , Rating: 2
Apples claim of designing a rectangle tablet is false at the core, as "SHAPES" are not patent-able due to apple did not invent that shape, same reason every tire manufacture in the world doesn't sue another one due to all the tires are round.

Shapes and colors are non patent-able so claiming you designed a shape at a particular size for a device does not constitute patent infringement based solely on size shape or color, as non of these companies invented any of those objects.

Allowing apple to sue another company for making a rectangle device is really retarded broken system. Apple is infringing on the maker of the rectangle, they dont own that, but are twisting the legal boundaries to look like their square is unique enough to show proof of design concept to by pass the shapes sizes color laws of freedom.

And In Related News...
By mindless1 on 7/13/2012 2:05:39 PM , Rating: 2
... water is wet.

"Young lady, in this house we obey the laws of thermodynamics!" -- Homer Simpson

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