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SCO and Two Patent Applications
Sunday, April 13 2008 @ 01:17 AM EDT

I told you I'd find out what the current status is of the patent application for "System of Software Code Comparison", listing Darl McBride's then-pal Michael Anderer and some guys from PointServe as inventors. We told you about it back in 2005, back when it was Patent Application 60/502,098.

It expired, but the inventors resurrected it and now it's 10/938,844, Publication Number 20050216898. Back then, we wondered if we'd found Darl's "MIT deep divers" at last, since the patent mentions spectral analysis, which SCO in 2003 claimed to have used to find infringing code in Linux, and the original Specification [PDF] filed showed SCO's logo from page 5 to 25. Duh. It looked like the inventors just attached a SCO presentation. Looking at it, I wondered if SCO used it to raise money back in the early days. As you'll remember, Anderer was helping SCO find money to fund their dream, and in his leaked memo, he mentioned patents and IPx, and you'll see IPx appears in the Specification too.

Alas for those of you rooting for this patent application, it seems there may exist prior art, because the inventors received a non-final rejection notice, mailed on April 4th, rejecting all the claims. The examiner listed four references, patent numbers 6,778,995 , 6,658,626, 6,954,747, and 6,182,067. Non-final means it's technically not quite dead yet in that the inventors can respond, but it's mostly dead.

But SCO has a patent application itself, one Groklaw member rand noticed, Number 20070067381, related to ME INC, I gather. It has reached the "PG-Pub Issue Notification" level. If you want to view the drawings or wish to download the entire transaction history of either application, go to the PAIR web site, type in the captcha words, then type in the application number. Look for the tab at the top of the page that says Image File Wrapper. You can then choose which documents you'd like to view or download. And if you want to see the earlier filings that each claims priority from, the easiest way from there is to just click on the tab that says "Continuity Data".

You might want to read the patent section in Software Freedom Law Center's Primer for Open Source and Free Software Projects, which explains IP law in language programmers can understand, if you are one, before doing so or reading on about the mobile devices patent application.

The Mobile Devices Patent Application:

It's #20070067381, filed September 19, 2006, "Systems and Methods for Providing Distributed Applications and Services for Intelligent Mobile Devices". Here's the overview:

United States Patent Application 20070067381
Kind Code A1
Grant; Bruce K. JR. ; et al. March 22, 2007
Assignee Name and Adress: The SCO Group, Inc.., Lindon, UT
Filed: September 19, 2006



In accordance with an embodiment, an edge processor may be configured to communicate with intelligent mobile devices via one or more mobile device networks. The edge processor may also be configured to access an entity's applications and data via a network of the entity. The edge processor may include one or more embedded applications. The edge processor may also include a command processor that is configured to route requests received from the intelligent mobile devices to the one or more embedded applications. The edge processor may also include at least one agent broker component that is configured to broker requests made from the one or more embedded applications to the entity's applications and data. At least one intelligent agent may facilitate communication between the one or more embedded applications and the entity's applications and data via the at least one agent broker component.

It's an application that is related to and claims priority from U.S. patent application Ser. No. 60/718,833 filed Sep. 19, 2005, for "Distributed Applications And Services For Smart Handheld Devices," with inventors Bruce K. Grant, Jr. and Scott A. Hawker. The earlier provisional application is easier to read, and it has a technical white paper by Bruce Grant about ME INC attached [PDF], and it seems to be about an edge processor that takes in requests from mobile devices, decides if the command is authenticated and should be implemented, and then gives the mobile device access to real time data on the company's server. There is a quality of service capabilities aspect to monitor the health of the system, and Java is in this, and web services. It takes in a request, finds the right embedded application to run, does so and sends the resulting info to the smart phone. The idea is that the executive on his smart phone can be anywhere in the world and still get work done. ME INC is a kind of middleman, I gather, preventing direct access to the proprietary data. This is a new invention? It's certainly possible they've executed it in a very fine way, but what is the new part? Which part can't Linux do already? It's certainly possible I'm missing something. My nightmare always has been that SCO gets a patent and then goes after everyone. They have the will, so I naturally hope they never get the way.

The "Spectral Analysis" Patent Application

You'll enjoy looking at the original Specification I linked to, the one for the expired filing, because of the attached SCO presentation. Remember Microsoft announcing it had licensed a SCO patent, when SCO didn't have one? Could this presentation have confused them? Page 9 says Patent Pending, and Anderer back then was helping SCO raise money, and his memo mentions Baystar and Microsoft.

Check out page 12, "SCO IP Model" mentioning "ZillionResumes" and page 16, "SCO Information Gathering". And the cherry on top, pages 19-22, examples of SCO's prowess at gathering "concepts" and on page 22, the Linux kernel appears, with the notation regarding driver files: "spectral similarity is apparent". Then on page 24 a comparison chart of System V and Linux. Then there is, on page 25, a comparison of AIX and Linux, titled "IP Tracing" based on "rare word searching". At the bottom of the page, there is the hilarious sentence: "The methods are implemented differently, but provide the SAME function, use the SAME variable names in the SAME order." I know. This appears to be how SCO fell into a hole it hasn't been able to get out of, beginning with the disastrous SCOforum slides that the world laughed at because it turned out SCO didn't actually own any of the code. What the system doesn't do, spectrally or otherwise, is check who owns the code. Of course, at the time, SCO claimed to own System V. Hardy har.

Here is the history of this patent:

04-04-2008 Mail Non-Final Rejection
03-31-2008 Non-Final Rejection
03-11-2008 Case Docketed to Examiner in GAU
11-20-2007 Case Docketed to Examiner in GAU
06-08-2005 New or Additional Drawing Filed
09-13-2004 Request for Foreign Priority (Priority Papers May Be Included)
10-03-2007 Transfer Inquiry to GAU
09-28-2007 Transfer Inquiry to GAU
09-13-2004 Request for Foreign Priority (Priority Papers May Be Included)
11-08-2006 IFW TSS Processing by Tech Center Complete
06-17-2005 Application Return from OIPE
06-17-2005 Application Return TO OIPE
06-17-2005 Application Dispatched from OIPE
06-17-2005 Application Is Now Complete
06-08-2005 Payment of additional filing fee/Preexam
06-08-2005 A statement by one or more inventors satisfying the requirement under 35 USC 115, Oath of the Applic
06-08-2005 Applicant has submitted new drawings to correct Corrected Papers problems
11-08-2004 Notice Mailed--Application Incomplete--Filing Date Assigned
10-22-2004 Cleared by L&R (LARS)
10-18-2004 Referred to Level 2 (LARS) by OIPE CSR
09-27-2004 IFW Scan & PACR Auto Security Review
09-13-2004 Initial Exam Team nn

Again, if you want to view the drawings or the history, go to PAIR, type in the captcha words, then type in 10938844 as the application number. Look for the tabs at the top of the page. You can then choose which documents you'd like to view or download. Here's the explanation of what it means to claim foreign priority, if you are interested. And here's what Group Art Unit, or GAU means.

Here's one problem the application claims the patent purports to help solve:

[0005] ... The problem is that most open source software, while freely available for downloading is not in the public domain.

[0006] In particular, open source software is not unrestricted -- to the contrary it is often subject to licenses that restrict not only the open source software code itself but any modification thereof and any software that incorporates it as well. Typically, these open source licenses may require that the source code of any proprietary system using some open source software code be publicly disclosed. In other words, a programmer who uses open source code in a proprietary application may unintentionally subject the proprietary application to constraints and restrictions of an open source license. This may have devastating affects [sic] on the ability of the company to protect software IP or pursue further intellectual property protection for the software.

I know. So totally back in the 80s. I bet you didn't expect to see antiGPL FUD in a patent application, so now you can say you've seen everything. By the way, this is totally not true. No one inadvertently can end up having to open source their proprietary code.

That isn't the only possibility the patent inventors have stayed up nights trying to figure out:

[0007] In addition, open source software has another inherent risk - it is unknown to what extent open source software incorporates proprietary technology by others.

Now here's a problem that is easy to solve. Open Source means you can look at it. So just look. If you see any of your code, sing out.

I'd like this idea of mine patented, by the way. "Method of determining if open source software incorporates proprietary technology by others". Why shouldn't I get my pot of gold at the end of the patent rainbow too?

And may I just point out that with any software code, proprietary or not, there is a risk, nay a likelihood, that it infringes somebody's patent somewhere. You know why that is? Because software patents are an unfortunate joke, which is why Microsoft is currently being sued in numerous lawsuits in what some have called a litigation lottery-like environment, according to Bloomberg. Hence the call for patent reform.

So I view this patent application as a throw back to a headier time for patent trolls, when you could hold up a company with very little down side. "Microsoft has about four dozen suits pending, almost all filed by owners that don't make products," the article tells us. My point is that the risk is across the board, for proprietary companies like Microsoft and for FOSS, and you can thank the patent system for that. It has nothing to do with any special risk of open source. If you recall, when Samba saw the list of patents Microsoft claimed needed to be licensed, there wasn't one on the list that Samba thought it needed for anything. But often just the threat of litigation results in the defendant/victim paying up just to avoid not just the risk of losing but the extraordinary costs of proving one's innocence.

Now *here's* an IP risk, claiming you own code that you don't, a risk SCO took and one which it will end up paying dearly for, it appears, particularly when IBM and Red Hat's counterclaims start to throttle SCO's neck.

Even a little child can figure out, then, that the worst IP risk in the world is to falsely claim IP infringement, something this patent might just help you to do, by my reading. It may be designed as an IP troll enabler, but in the end it may prove an IP troll destroyer. Hmm. Maybe I should root for it. It seems to have undermined SCO rather well.

Still, with SCO you can't be too careful. SCO with a patent is a scary thought. They were trouble enough with copyrights they didn't even own. It's like with toxic waste. Or Ebola. Prevention is better than hoping for a cure.


SCO and Two Patent Applications | 251 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Here, please....
Authored by: perpetualLurker on Sunday, April 13 2008 @ 01:51 AM EDT

Please identify the correction in the title!


"Work like you don't need the money. Love like you've never been hurt. Dance
like nobody's watching." -- Leroy "Satchel" Paige

[ Reply to This | # ]

Off-Topic here, please...
Authored by: perpetualLurker on Sunday, April 13 2008 @ 01:53 AM EDT

Anything not related to the article might be found here...


"Work like you don't need the money. Love like you've never been hurt. Dance
like nobody's watching." -- Leroy "Satchel" Paige

[ Reply to This | # ]

NewsPicks Comments Here, Please....
Authored by: perpetualLurker on Sunday, April 13 2008 @ 01:54 AM EDT

Thank you for putting the title in the comment...


"Work like you don't need the money. Love like you've never been hurt. Dance
like nobody's watching." -- Leroy "Satchel" Paige

[ Reply to This | # ]

An attempt at a look at the mindset that charges open source with having a viral nature
Authored by: reiisi on Sunday, April 13 2008 @ 03:30 AM EDT
I know I'm working with strawman arguments, but I thought I'd suggest some
underlying assumptions in the viral argument.

There are a lot of people, Microsoft engineers and managers included, who
have been working by a behind-the-curtains open-source-like model.

Think for a minut, if you will, about the way Microsoft built every piece of
"intellectual property" it owns.

Microsoft BASIC. Where was it developed? What did they reference?
Go through the entire list and repeat.

Then look at UNIX. In fact, look at any successful segment of the software
industry, and what you discover is that we have been playing an intellectual
kind-of-the-mountain game for, what, thirty years? fifty? two hundred?

If you dig far enough back to Ada and Charles, recognize that they were
operating under the expectations of the science community. Then trace
forward and watch companies precipitate. Bell, Edison, IBM.

Software has brought the abstract research sphere much closer to the
practical implementation sphere.

(There used to be an argument about which kind of science was "true"
science, practical or theoretical. The arguments against the practical side
were often couched in the assumption -- empirically derived -- that
implementation would always sully the purity of "real" science, not
just with
short-cuts to get product out the door, but with all the intrigue that business

tends to foster. Business has been a proxy for the battlefield for a long time,

really. All of recorded history, I think, unless you believe in Adam and Eve and

guess that there were a few years after Eden, before Cain decided to his

Anyway, here are all these businessmen, managers, CEOs, etc., who are used
to sneaking around and skimming useful IP from the common pot of
knowledge and building empires from it. Then Richard comes along and says,
let's not sneak around any more.

The BSD camp said something like, "If you guys like so much to cut off your

noses to spite your faces, you guys can keep sneaking around if you want.
We're going to publish our work, so you can't take it away from us like you've
done in the past.

That was bad enough, as we can see by AT&T's suit against UC. But it allowed

the business types to keep playing their games, if they so chose. The only
game that the BSD crowd kept them from playing was the game of excluding
people from their own inventions. (Remember it has only been the lucky few
geniuses who have managed to maintain control over their inventions, and,
when we look at history, in their efforts to maintain control, they have
actively squelched the work of others in the field. Squelched and worse.)

Allowing the golden goose to live was a novel idea, but since the BSD crowd
was pacifist and not too obnoxious, it could be tolerated. Especially after
AT&T and Berkeley mucked around in court and determined that bringing
that case to a conclusion would bring far too much to light.

But with a RMS and his friends, things are different, as we know.

So, with the assumptions laid out, here's what I think is happening. A
business type has a bright idea. (Think Bewitched.) But, in the real world, it
takes more than a crinkled nose and a nice touch at the drawing board, and a
cool slogan. Business has been used to going out into academia and claiming
dibs. (Think first-to-file.)

Until the GPL, their weren't that many surprises out there. It was fairly
straightforward. With the GPL, a business type going out to lay his claim may
well find that his claim is, well, encumbered with something he can't
understand. He and his friends get together in their boardrooms, doing a lot
of what they call work, laying out business plans, storyboards, etc., and they
believe their time doing such things is worth $1000s an hour.

Over six months to a year, they're building this next big thing business plan,
maybe as many as ten different top level execs, maybe an average of 100
hours each. A million dollars invested, as they see things, and they go to the
fields and discover that the lands they've laid dibs on has these stakes in the

ground that say, even though no other corporation as control, they can't lay
the sort of total control on things that they think they need to make the profit

they think they need to justify all this time they've spent.

I think that's why they're surprised, and I think that's where the charges of
viral come from.

Now, I know that's a strawman I've built, but I've sure seen more than my
share of business types behaving this way, as if total control is necessary for

profit, as if profit that isn't abusively large can't be considered profit, as
their time is worth more than a $1000/hour every hour of the day, and as if
they are somehow superhuman and above the necessity of doing the grunt
work for grunt pay.

Even Bill Gates had to slap Microsoft BASIC together on spec and on the

(Sorry, I'll crawl back in my hole again. Oh. I checked Sofmap for the EEEPC,
and the salesperson there told me the Linux version just is not available in
Japan, period. And now I'm a little worried that the portable phone I got
yesterday has Linux in it without any sort of admission, much less offer of
source code.

Anyone know whether the OLPC community is going to be able to start
producing commercial units, or another G1G1 program or anything? I don't
want to buy the EEEPC because of iNTELs tracks in the peanut butter, but I
need a lightweight with a screen I can read source code on that I can run
Fedora or something on.)

[ Reply to This | # ]

Already expired?
Authored by: Anonymous on Sunday, April 13 2008 @ 03:32 AM EDT
I thought that patent on fibbing already expired. No? :-)

[ Reply to This | # ]

Typical Sco move
Authored by: MadTom1999 on Sunday, April 13 2008 @ 03:34 AM EDT
To patent something that patently doesnt work as they seem to have proved pretty

[ Reply to This | # ]

Handheld or not, it is still a computer, being handheld should not matter one bit!
Authored by: Anonymous on Sunday, April 13 2008 @ 06:19 AM EDT
This is one main complaint about patent examiners, is that they are so stupid to
see a hand held computer as something NEW or different, when it is just a

A computer, is a computer, is a computer.

Everything that a computer does is based on Math. So, how can it get any
special protection.... a software program is just an expression (protected by
copyright yes, by patent, this should never be, and never should have been, the
lawyers, patent exminers, never were good at logic, science or math, that is
why, instead of becoming engineers or doctors that they instead became

Just imagine this - that if Intel patented all uses of any one of their chips
(actually all the software DEPENDS basically to be compatible, on using that
chip). Intel could have one huge patent, that would mean that not only would
people buy the chip, but then would owe Intel as well for the use of the methods
and concepts that INTEL designed into the chip... which would include all the
uses of the chip that you could imagine, thus all the software ever written to
execute or run using INTEL's design of the chip.

Yep - then no one else could patent any software that ran on the chip, because
Intel would have one master patent that would RULE all uses of that chip that
you could imagine.

If Intel when they came up with a chip design, then they could A) profit (if
anyone would then program for the chip and pay Intel, or B) allow everyone to
use their patented design for free, as long as they did not try to patent and
uses that they came up with for the uses of the chip.

It is OBVIOUS that to run any program, that you would need to use Intel's chip.
And most funtions that you program were already analog, that folks tried to say
were new because they were then made faster by making the task to be then
defined by software... using INTEL's chip, the reason why it would be faster to
do the task (and that depends totally on Intel's design).

Why would Intel NOT have such a patent over all uses of it's design? Because
then a competitor chip, with no fees associated with any use, would be bought
instead of the Intel one. Intel could still do this type of patent, and with
it release uses as being something that folks can license from INTEL, but of
course, with no cost.

A computer functions like a computer (using math), no matter if it is handheld
or remote or where it is. The whole of software patent law is a mistake, there
should be no software patents.

[ Reply to This | # ]

" ... but it's mostly dead."
Authored by: Steve Martin on Sunday, April 13 2008 @ 06:22 AM EDT
Obligatory "Miracle Max" / "Princess Bride" thread here.

"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"

[ Reply to This | # ]

It really is simple
Authored by: Anonymous on Sunday, April 13 2008 @ 06:30 AM EDT
if you do not want to have to accept an (L)GPL license, throw away the source
code and use just the executable.

And that will solve any issues regarding the licens the code is under.

And that's a method of protection you DO NOT get with closed source applications
and their EULA's.

[ Reply to This | # ]

Authored by: maroberts on Sunday, April 13 2008 @ 07:43 AM EDT
Anyone else find it deliciously ironic that Microsoft is being hit by the very
laws that it started down the slipway.

A long time ago, Bill Gates wanted everyone to know that his software was his
intellectual property and should be subject to copyright and patents, just like
any other inventions.

[ Reply to This | # ]

SCO Patent is obvious
Authored by: Anonymous on Sunday, April 13 2008 @ 11:14 AM EDT
A quick perusal of the patent extract and description seems to fit the
requirements of a telecom Service Delivery Platform (SDP). SDPs are used to
offer services to mobile devices and PDAs for a variety of purposes: messaging
(store-n-forward), streaming, specific applications etc. The services are
typically carried over standardised telco protocols or IP protocols, and SDPs
are able to deliver many/all of the general requirements specified in the
patent. Games application servers are not dissimilar, or the Blackberry service
etc. As "edge processors", they also connect into back-end content
servers or other application servers. Some of these SDPs can even be embedded
into switches.

The description seems too broad to be patentable in the light of telco
developments over the past 10 years. IANAL, nor have I done sufficient research
into the application.

[ Reply to This | # ]

Possible prior art?
Authored by: Anonymous on Sunday, April 13 2008 @ 11:20 AM EDT
At my company, we use a product called OneBridge (currently owned by Sybase)
that does just what SCO is describing here (at lest from my reading of it). We
first started using it 4-6 years ago (can't remember exactly) when it was called
Extend Connect (possibly using alternate spelling). It provides a middleware
layer that lets us sync our Exchange server [shudder, shudder, twitch] with
PocketPC and Palm devices. Can work with various smart phones too. It can also
provide a bridge to other email servers, various databases, file shares, and
such. It works by having a client installed on the mobile device, a proxy
client installed in the DMZ, and then the server software installed inside the


[ Reply to This | # ] and
Authored by: Anonymous on Sunday, April 13 2008 @ 11:30 AM EDT
The Zillionresumes and Hirehub mentioned on page 12 of the specification for the "System of Software Code Comparison" patent are real websites, apparently owned by the same company, Activehire, Inc. Apparently they crawl the web for resumes, and use Easytrieve for searching. Frank Jackson, the president and CEO of Easytrieve was a VP at Pointserve, but I didn't see his name on the patent.


[ Reply to This | # ]

One Thing Is Clear
Authored by: sproggit on Sunday, April 13 2008 @ 04:26 PM EDT
... and that is that this is yet another shell game with more of Novell's cash.

TSG are merely using more of Novell's money to pay the lawyers to apply for
patents that they want to spin off into Me, Inc.

Is this Darl's parachute? Is he going to try and negotiate a deal whereby he
gets to continue to run Me, Inc as it's CEO? If he really, really want that,
then one presumes that he's been paying himself in shares in that company, and
been joined by any other directors who want to step across to that company
lifeboat. Or perhaps come up with another way of ensuring that he gets the
control that he wants.

At there present rate of cash burn, and the proximity with which the case in
Utah is looming, we won't have long to wait.

Windoze: a 32 bit Extension to a 16 bit Graphical Shell of an 8 bit O/S first
coded for a 4 bit CPU by a 2-bit company that can't stand 1 bit of competition.

[ Reply to This | # ]

  • Has he got? - Authored by: Anonymous on Sunday, April 13 2008 @ 05:11 PM EDT
Spectral analysis?
Authored by: hAckz0r on Sunday, April 13 2008 @ 05:37 PM EDT
You must be kidding? Using spectral analysis will only give you a place to start doing a code comparison, and nothing that would be relevant in a court of law if the judge has a clue about software. Kind of like trying to figure out which 'broad side of a barn', in what state, might be an interesting one to try hitting. I'm going to have to make time and take a serious look into this one, since I just happen to do research in source code inspections.

DRM - As a "solution", it solves the wrong problem; As a "technology" its only 'logically' infeasible.

[ Reply to This | # ]

Round Two (and more) For Patent Applicatons
Authored by: Anonymous on Sunday, April 13 2008 @ 10:56 PM EDT
Patent lawyers play this little game with the Patent Office.

They structure the patent's first set of claims so broad that the patent
examiner almost certainly will disallow them. This is expected. In fact, if it
doesn't happen the lawyer is not doing his job. The assumption is that there is
a good percentage of examiners who will actually allow excessively broad and
obvious claims so it is always worth a shot. Thereafter there are a series of
narrower claims that can be adjusted to try to find the examiner's threshold of
acceptance, along with extensive technical and legal arguments. On the second
round these too are typically rejected but a FEW will likely be accepted. In
short this is a trial and error process to find the threshold of acceptance by
the examiner, which varies widely.

Examiners are only allocated so much time for each application and subsequent
modification and arguments. Things don't get serious until the examiner gets
close to the limit and the applicant's lawyer is convinced no more haggling of
claims will succeed. Then, and only then, will the claims be finally adjusted to
get the patent to meet the examiner's requirements.

My lawyer was astounded that a number of claims thought to be too broad, too
obvious, and too close to the prior art were actually accepted and whittled down
to "only" a total of 72.

Don't count SCO's application out just yet until all the deadlines have passed.

[ Reply to This | # ]

Umm are we forgetting something??
Authored by: LaurenceTux on Monday, April 14 2008 @ 01:25 AM EDT
what claims does 5953006 from a friend stomp flat?? is this a case of "thats not a patent THIS IS A PATENT"?

[ Reply to This | # ]

Patent app 20050216898 = Web enabled MS FUD Engine
Authored by: hAckz0r on Monday, April 14 2008 @ 11:39 AM EDT
It looks to me that one of the prime uses described is just a revenue scheme based on the “scare tactic” marketing approach that plays right into the hands of the Microsoft FUD campaign. Microsoft must be absolutely drooling over this one, as nothing analyzed by a statistical comparison approach will have a non-zero probability of infringement. What works so well in this case is that Microsoft can provide the web link pointing to the web site to show that the “fear” is real, and you should always stay as far away from Open Source as possible!

[0008] ... “In other words, a programmer who uses open source code in a proprietary application may unintentionally subject that proprietary application to the constraints and restrictions of an open source license. This may have devastating affects on the ability of the company to protect software IP or pursue further intellectual property protection for their software. “
Thats the scare tactic part,
[0060] “For example and as illustrated in FIG. 5, the present invention may be implemented as a site on the internet which aggregates publicly available documents on the internet, such as source code or patents, onto databases residing on its own system which are used for the comparison.”
And the online service, to save the day.

Yea, like I'm ever going to upload any of my own labor of proprietary source code to anybodys website that has even remote dealings with SCOg.

DRM - As a "solution", it solves the wrong problem; As a "technology" its only 'logically' infeasible.

[ Reply to This | # ]

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