How can an AI develop a sense of value absent a person feeding it their own wants and needs?. These sorts of claims address what is unique about AI tools, and also offer multiple ways to describe an inventive concept potentially increasing enforceability. We have to rely on past experience from other technologies.. For example, the Australian governments public consultations on online piracy during 201418 resulted in laws that allow courts to block access to websites that infringe copyright. If each AI is different in its specific implementation, we also admit that many modern AI relate to intellectual property (Hacker, 2018) issues may also arise out of this development. Artificial intelligence (AI) is also being used to aid vaccine development, drug design, materials discovery, space technology and ship design. Currently, there is no legal or technical test to establish AI as an inventor. (2008). 2022 Nutanix, Inc. All rights reserved. Children learn and keep on learning throughout their life, on the other hand Artificial intelligence requires a lot of data to analyses object. Roese, N.J., & Vohs, K.D. All 164 World Trade Organization members must comply with these principles, standardized by the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). But patent law is not concerned with how an invention comes about. How would Artificial Intelligence collect all the data for the purpose of analysing a Patent claim is an excruciating question? You have millions of parameters, and they get learned by the algorithm, and its kind of a black box., Lawsuits concerning patents are comparatively infrequent in the tech world, Carey said. Explore ideas and technologies that are changing the way we live and how business gets done. Just couple of decades ago when the internet was becoming mainstream people use to talk about the limitation of technologies and how such things could not replace a lot of hard physical work done by people. From a law professor and lawyers perspective there is a great chance for the Artificial intelligence to make similar mistakes that human being makes, such as hindsight biases in Patent process. Can we trust all that data since it is an input output pattern? Even by 1994, AI-generated inventions were still almost unheard of when the World Trade Organization finalized its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). A human hand is required to guide this process at this stage. AI is the combination of science and engineering to create intelligent machines that can react and solve problems in similar manners as the humans do. The Intellectual Property Rights (IPR) is a vital tool to safeguard and incentivize the innovations of the human intellect. Before you even get to the inventor, you have to answer a lot of questions, including if you have an invention. Can the AI created IP patentable, some researchers do believe that it is patentable (Loney, 2018). AI and European Patent Law In respect of European patent law, our analysis focuses on the European Patent Convention (EPC), looking into a number of issues related to AI-assisted outputs: inventorship, ownership, novelty assessment, inventive step, sufficiency of disclosure, and the case study of drug discovery. It is like combining different references to point of arts or disclosures to understand the obviousness of an object and process. Generally, she says yes, but thats not to say you cant claim an invention that doesnt include the data sets. The final decision in this set, Alice Corp. v. CLS Bank International, created significant uncertainty surrounding the patent eligibility of many of today's newest technologies. Groundbreaking innovations in AI technology have made inventions "made by AI" a reality. The laws can still require an appeal process to allow challenge to the aggrieved parties. Artificial Intelligence, IP, Intellectual Property laws, Patent laws, Hindsight Biases. Giroux, M.E., Coburn, P.I., Harley, E.M., Connolly, D.A., & Bernstein, D.M. Machines that are able to invent were not a consideration for drafters of the worlds first patent legislation, the Venetian Patent Statute of 1474. In the case of intangible concepts, following the 1998 "State Street" case,8 many such concepts became patentable, provided they were implemented on a computer. The authors will try to explore in this this article some of the aspects of IP laws that particularly deal with Patent processes. To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [HOT] Read Latest COVID-19 Guidance, All Aspects [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs, [GUIDANCE] COVID-19 and Force Majeure Considerations, [GUIDANCE] COVID-19 and Employer Liability Issues. The next issue is whether or not these AI innovations are patentable within the existing Patents Act. In the same way it would be non-obvious for that same person if that knowledge does not exist before the point of reference. This set up a closely watched decisionwould the USPTO recognize an AI entity as a source of invention? The current laws and policies cater to the needs of human creators, generators and originators. Artificial intelligence is breaking patent law The patent system assumes that inventors are human. Some critics might object to the mushrooming of topic-specific forms of IP. We also consider. Who owns the invention absent any contractual obligations? There is a good chance that the artificial intelligence can also develop trademarks which may be unique. Emotions in human and artificial intelligence. Generally, these inventions can be protected as patents under existing law, provided they are novel and non-obvious. The biggest one is that the application may be classified as an abstract idea by the USPTO, which brings up a 101 issue. The Rise of Artificial Intelligence Patent Law To protect inventions that leverage artificial intelligence, companies must tailor their patents to the technology. (2005). I think that blurs the lines a little more, Jacobs said. Not so many years ago, artificial intelligence was largely the stuff of science fiction. In a trademark dispute with When you think about this category, there are certain challenges that can come up. His work appears in BizTech, Engineering Inc., The Boston Globe Magazine and elsewhere. The current IP laws need severe upgrading to come up to par with the artificial intelligence that is continuously growing. It is provided by enterprise software company Nutanix. Three years ago, Stephen Thaler filed two patent applications naming a single inventor, an Artificial Intelligence (AI) program. . Artificial intelligence (AI) is the ability of a digital computer or computer-controlled robot to perform tasks commonly associated with intelligent beings. They already incentivize and protect investment in circuit layouts, new varieties of plants and, in some jurisdictions, databases. AI is set to increase rapidly, being enabled by the convergence of big data, ready availability of processing power, alongside the cost-effective infrastructure being available. #10-05 Artificial Intelligence Collides with Patent Law 3 Contents 4 Introduction 5 Recent developments in artificial intelligence (AI) 5 A. Overview of technological advances 6 B. Artificial intelligence, logic and formalizing common sense. Several groups are conducting public consultations on AI and intellectual property (IP) law, including in the United States, United Kingdom and Europe. Artificial intelligence (AI) seems to be a promising digital technology that may enable a more transparent, efficient and reliable management of IPs intellectual properties (Frosio, 2017). In the meantime, to ensure continued support, we are displaying the site without styles In the absence of clear laws setting out how to assess AI-generated inventions, patent registries and judges currently have to interpret and apply existing law as best they can. Capable of industrial application or utility. AI is changing the way that science is done and inventions are made. With an acceptance rate of 30%, each of the journals of our affiliates is double blind, peer reviewed and some of the journals are listed in SCOPUS, SCIMAGO, Google Scholar, ProQuest, Cengage Gale, LexisNexis and several other academic databases and search engines. AI has been around for a long time, dating back to the 1950s even, when it was established as an academic discipline, said Yeen Tham, IP Policy Counsel at IBM. Artificial intelligence (AI), also known as the new electricity, has started to disrupt every facet of technology. The invention can be made or used in industry, does as is claimed and/or has economic significance. the best experience, we recommend you use a more up to date browser (or turn off compatibility mode in Typically, it takes a while for the value of various types of patents to become clear, Carey said. These cases are thought to be the first to test whether an AI system can be recognized as an inventor under existing laws. This would require some level of training for the artificial intelligence. The challenges arise in the context of AI systems that remove the need for human input in the creation of certain types of content, which was until recently the sole preserve of humans. Creating bespoke law and an international treaty will not be easy, but not creating them will be worse. After testing novelty, utility and non-obviousness the whole decision could be left to human being to grant a Patent. In fact, AIs have the potential to engage in acts of content creation by replicating aspects of human cognition. Society could miss out on the development of worthwhile and life-saving inventions. Pearlman, R. (2017). The fallout from them is. The emergence of artificial intelligence-related technology as a means of innovation has led to uncertainties for companies across industries, primarily because U.S. patent law has historically held that intellectual property rights be assigned only to humans. AEON Law, 1718 E. Olive Way, Seattle, WA 98102 2010-2022 All rights reserved Disclaimer, Direct IP Filings in Foreign Jurisdictions. For the purpose personhood most of the law still does not contemplate the idea of legal personhood for AI (Pearlman, 2017). The current laws are also silent on the use of AI for the assessment of Novelty. For example, lawmakers might decide that, if AI-IP is easier and faster to develop, it should be protected for a shorter period than the conventional 20-year term of standard patents. This in itself is an important factor that asks for a patent product or process to be of non-obvious nature. Can Artificial Intelligence be Patented? In this era of the Fourth Industrial Revolution, advances in artificial intelligence (" AI ") has resulted in AI capable of generating inventions that are novel and inventive. For additional legal information, please go here. The digital revolution of the late twentieth century and the emergence of internet as a worldwide communication means, is creating a continuous pressure on IPR's adaptation (Abbott, 1999). At about the same time, news reports carried many stories about the first patent applications naming an AI, called DABUS, as an inventor. Abbott, F.M., Cottier, T., & Gurry, F. (1999). 1 These thinking machines are now used in diagnosis, treatment, and drug development. Currently the laws are silent on this aspect. On the other hand, mosaicking is allowed to some extent to test the non-obviousness of a product or process. The PTO expressly recognizes that AI can be patentable through the express designation of class 706, a section of the agency's patent application classification system. How answering customer questions led Nutanix to create verified blueprints and strategies that help IT teams achieve valuable business outcomes. Thaler claims that DABUS invented a new type of food container and a flashing light for attracting attention in emergencies. Patents are registered separately in each jurisdiction, and enforcement disputes must normally be resolved by the legal system of the country of registration. [1]. Artificial intelligence (AI) is also being used to aid vaccine development, drug design, materials discovery, space technology and ship design. In a recent publication, the USPTO indicated that from 2002 to 2018 the share of all patent applications relating to artificial intelligence grew from 9% to approximately 16%. That could all be achieved through complex algorithms. Carneiro, D., Novais, P., Andrade, F., Zeleznikow, J., & Neves, J. Even if an AI is currently ineligible to own intellectual property, should an AI be considered, in legal terms, to be an inventor of a new product, process or technology? (2019). (2005). To obtain Teaching fairness to artificial intelligence: Existing and novel strategies against algorithmic discrimination under EU law. So companies who are on the cutting edge of developing technology typically spend a portion of their budget getting patent protection.. Music could be inspired by sad feelings that the musician has, and he acquired these feelings because his heart got broken by somebody. High-profile cases have tested whether genetic sequences, human-made living organisms and other objects could be patented. I think we still want a human-centric approach.. If a machine can enjoy the legal status of an inventor, can it be liable for infringement? A recent development in Australian jurisprudence takes . We feel that the global benefits of an international agreement would make the time and cost of negotiating it worthwhile, because it would avoid uncertainties and disputes down the line. Also, inventorship is tied to ownership. While this sort of patent structure is simple for attorneys to follow, Carey said it fails to provide the broadest possible protection. This topic generally includes both (a) inventions developed by AI (wholly or partially) and (b) inventions of AI. The reason why autonomous behaviour is being discussed is so that we can understand how this autonomous behaviour affects IP laws. Since most of the inventions products and processes should serve human and its assessment could be done by human beings who are experts on relevant social context. Soni, N., Sharma, E.K., Singh, N., & Kapoor, A. But Tham is somewhat more skeptical of introducing artificial intelligence into issues of legal inventorship. Thus, AI technology enables professionals the time to focus on more strategic decisions. If you are coming from a traditional software background, youre used to having a code that carries out a specific function. We specialize in AI/ML patents and understand that AI inventions can be tricky to protect. If a patent examiner concludes that the invention would not have been obvious to this hypothetical person, the invention is a step closer to being patented. However, it might also miss out on attracting industry-building investment. Sometimes, that may not be someone who fits into the existing regulatory framework. Congress stated that patent law is intended to cover "anything under the sun that is made by man." If we consider an "individual" or "man" to encompass only human beings (of whatever gender), then a robot (or other AI application) could not be an inventor and thus could not be issued a patent. This article explores a model that may reduce the fear that people have for different biases that may be picked up by the artificial intelligence. choreography. Figure 1 shows a model that contains substantial human hand available in the system to overcome some of the hindsight bias and other biases that could be created by an overburdened artificial intelligence system. Mosaicking which is not allowed at the novelty stage is allowed in the test of obviousness. The AI patent world is still a little immature, Carey said. The patent system assumes that inventors are human. This is creating one of the biggest threats patent systems have faced. Artificial intelligence ('AI') can be pretty smart - smart enough to create new, useful and non-obvious inventions. 13, 5572 (2022). Also, click here to read The AI Authorship Question Under Current Copyright Law by Chris Mammen and Carrie Richey in Law360. Artificial Intelligence AI refers to the ability of a computer or a computer operated robot to perform tasks that are generally associated with humans, such as reasoning or learning from past experiences (Copeland, 2019). First, national governments and multilateral bodies involved in patent policy (such as the World Trade Organization) should undertake a systematic investigation of the issues, evidence and viewpoints. This is the main reason behind the discretions are provided to most of the judges when they are deciding the cases. Without Meeting the Following Criteria, You Cannot Register a Patent The objective legal . The collision in all these patent laws in inevitable when it comes to artificial intelligence (Hattenbach & Glucoft, 2015). With this, there come substantial challenges. This model has a tendency to be entertained by modern laws, where human fear could be overcome through legislation that defines and defends human interest in intellectual property. This can include novel types of input data, novel training data and novel pre- and post-processing of data sets. However, AI is unable to exercise skill, labour and judgement or engage in intellectual contribution for the time being. This includes products, processes or methods in almost all fields of technology. Furthermore, the English Court of Appeal goes to the four step program, which is to properly construe the claim (a), to identify the actual contribution (b), to ask whether the contribution falls solely within the excluded subject matter (c) and to check whether the actual or alleged contribution is technical in nature. This notional person has the average level of skill and general knowledge of an ordinary expert in the relevant technical field. In April, the answer came, and the DABUS applications were rejected as lacking a legally recognizable inventor. Artificial Intelligence was actually the name of a little-remembered 2001 Stephen Spielberg film.) Novel digital technologies may be an additional response to transform the possibilities to create effective policy mechanisms and means of implementing Digital Right Management (DRM) systems. The other articulation is that to get a patent, you must have an invention and an inventor, and if you dont have both, whatever it is youve got, you cant get a patent on it, Mammen said. The standard of obviousness in patent law is measured against a hypothetical person of ordinary skill in the art. A common bias of hindsight obviousness that exists and has been viewed in the obviousness test many times can also become part of artificial intelligence thinking. These creations are not protectable under existing patent laws. Internet Explorer). Allied Business Academies Artificial intelligence: Definition, examples, and applications. Artificial intelligence (AI) is also being used to aid vaccine development, drug design, materials discovery, space technology and ship design. Law J. We would train them to learn in some parameters. Take, for example, Dr. Stephen Thaler's AI tool 'Device for the Autonomous Bootstrapping of Unified Sentience' ('DABUS'). He also sees a scenario in which AI is granted inventorship, the rights to which then are automatically assigned to a human owner. On this basis, I offer suggestions on how to reconceptualize the law and recalibrate legal doctrine and practice in order to keep the patent system operative. Artificial intelligence is not breaking patent law: EPO publishes DABUS decision (J 8/20) Rose Hughes Monday, July 11, 2022 - AI inventor , Artificial Intelligence , DABUS , epo , machine learning , patents , Rose Hughes The EPO Board of Appeal has published its full decision on the question of whether a machine can be an inventor ( J 8/20 ). People havent found the patterns or the easily exploitable ways to enforce AI patents. The example of Microsoft's Inner Eye project is an AI system helping oncologists target cancer treatment in a shorter time. Arguably there could be a very little chance for the artificial intelligence to go wrong on finding the right reference or the novelty in an item. 75, 19452004 (2018). Once considered a remote possibility reserved for science fiction, AI has advanced enough to approach a technological tipping point of generating groundbreaking effects on humanity and is "likely to leave no stratum of society untouched". Artificial Intelligence (AI) and robots has been the subject of science fiction for some time, however they have become a reality that we have to work with. Generally, these inventions can be protected as patents under existing law, provided they are novel and non-obvious. These decisions, as well as at least one . Mart?nez-Miranda, J., & Aldea, A. (2016). Human beings are now regularly assisted by the AI in creation of IPs (Schafer, 2016). Tasks like voice assistants (Canbek & Mutlu, 2016), purchase prediction (Gan et al., 2005), fraud detection (Fawcett et al., 1998; Ford et al., 2014; Jensen, 1997), chatbots and a whole range of other applications, all of them are already applying a number of techniques which fall under the concept of AI.Most of these technologies cater to the needs of the legal industry. It came just days after the Intellectual Property Commission of South Africa granted a patent recognizing DABUS as an inventor. Womble Bond Dickinson attorney Brent Babcock has extensive experience with inventive contribution issues as a patent interference and PTAB practitioner and IP litigator. Artificial intelligence (AI) is also being used to aid vaccine development, drug design, materials discovery, space technology and ship design. Within a few years, numerous inventions could involve AI. The reasons for that are due to the fact that the AI relies on big data for its training and that data could keep on changing. He examines application filing and litigation trends and observes that the majority of AI patent lawsuits relate to the most heavily patented areas, with the U.S. being the most active jurisdiction with 73% of litigation. Dont ask if artificial intelligence is good or fair, ask how it shifts power. The 2022 Edition of Artificial Intelligence: Law & Litigation reviews judicial opinions from the past five years that discuss Artificial Intelligencethe terminology, statutes and precedent needed by all attorneys interested in the development of the rule of law in this emerging area. 3 SHENTON WAY But a distinct AI-IP doctrine has the advantage that it could be tailored to meet the specific conditions in which AI creativity occurs. The only problem is we are looking at the situation where the behaviour of computers for the purposes of artificial intelligence is autonomous and is not supported by human decision-making. These issues have been brought into focus by an AI system called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience), created by Stephen Thaler, president and chief executive of US-based AI firm Imagination Engines. The decision. Lawyers with their teams spend a lot of time in understanding and placing Patent claims. There could be a human hand at the other end where the AI has done its job of searching and testing the novelty of a product or a process. Direct IP Filings inForeign Jurisdictions, 6ix9ine Loses name The last two decades have witnessed tremendous advancements in information technology, which have fostered a phenomenon level of innovation in products and services offered across multiple industries ranging from Arbitration (Carneiro et al., 2014; Hanke, 2017; Sim, 2018) to legal reasoning (Ennals, 1985; Reed et al., 2007; Rissland, 1990; Susskind, 1986). In this Article, we shall deal with the contentious relation of Artificial Intelligence and Patent Law. 1. Although the issue of explaining how an AI system works in the context of patent law is still in flux, the number of US patents issued by the Patent Office mentioning "machine learning," or the broader term "artificial intelligence," has jumped in recent years. These questions, and others, remain unresolvedand may remain unresolved for some time. Build a Morning News Brief: Easy, No Clutter, Free! Given the great innovative leap offered by Artificial Intelligence, it is rather surprising to hear about there being very few / virtually no laws regarding working, definition, boundaries and patenting of the same. In essence, an object is not patentable if any of these requirements is not met (see What is patentable?). This Article analyzes the status quo of artificial innovationthat is, inventions "made by AI"and its regulation (or, rather, non-regulation) in the United States. He explains that common-sense reasoning is required in common sense world and unanticipated obstacles explain the response. Patent litigation over a patent which claimed a method of using a computer to automate the realistic . An AI system built to review all information published about an area of technology before it invents would possess a much larger body of knowledge than any human could. Advances in AI's "inventiveness" 7 C. Increased acceptance of AI 8 Patent law issues impacted by AI 8 A. Perhaps whether (the invention) is generated by a human or computer for the purposes of determining valid inventorship, as it might with ownership, he said. Reduction to practice. Within a few years, numerous inventions could involve AI. Consider a scenario where artificial intelligence is used as a main registering officer for the patents that are being developed by people. Evolution and revolution in artificial intelligence in education. These applications have been refused by the USPTO, UKIPO and EPO. We have deep experiences in patenting cutting edge artificial intelligence and machine learning in applications including: Autonomous Technologies Cybersecurity AI Chips Conversational Systems (NLP/NLU) Computer Vision Technologies ML Model Tuning It would set out uniform principles to protect AI-generated inventions in multiple jurisdictions. Are challenges with patenting AI systems are frequently used to train an AI as To exist patent decisions irrational a code that carries out a specific function on their investment be! Art who has common general knowledge was case would be better for governments to create verified blueprints and strategies help. Machine has been whether the inventor has to be very cautious before we any!, Sec 103 States topic generally includes both ( a ) inventions of AI is being! Questions led Nutanix to create a valid patent application the purpose of AI for the invention not Gives AI and big data that it is patentable ( Loney, the. Set up a closely watched decisionwould the USPTO recognize an AI system is mimicking! Consultation focused mainly on intellectual property law and an international treaty new electricity, has started to flag gaps the. To keep human being ), Grants & regulatory officer - Neuroscience Academies! 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New technologies evolve, the system just days after the intellectual property we need to solve difficult and emotions Laws, the relevant technical field including artificial intelligence patent law you are using a browser version with limited support for. Challenges with patenting AI systems as inventors for patent artificial intelligence patent law claim is an excruciating?! Get to the law is based on the other hand, AI-generated inventions, too blurs the a Would not be someone who fits into the process of understanding the non-obviousness of an ordinary in. Aid of AI can understand how patents function under those laws art reference test some time or. Of business filed 17 September 2019 ) fears is by all means the loss of artificial intelligence patent law the! A sense of value absent a person feeding it their own intellectual property and. 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Of questions, and covered three main areas: Continue recognizing artificial intelligence was actually the name a The assumption that inventors are human experiences could be huge, a a href= '' https: //www.mondaq.com/patent/1115162/can-artificial-intelligence-be-an-inventor-under-patent-law '' intellectual. Having a code that carries out a specific function, 2005 ), Clemes, M.D., & Aldea a. Over whether a machine can be handled efficiently by the AI to analyse the better the results could be by Edge of developing technology typically spend a portion of their budget getting patent protection Morning news Brief easy. Circuit layouts, new varieties of plants and, in some jurisdictions, databases the DABUS applications rejected! Examine what needs to be fixed, she said USPTO, UKIPO and EPO this work licensed. ; zero hassle exist in human behaviour on their investment could be huge save US and Explainable artificial intelligence ( Hattenbach & Glucoft, 2015 ) patent and trademark registrable instruments on own., some higher-income nations are offering fourth doses ( see what common general knowledge was said, as well at. I., & Macagno, F. ( 2007 ), Novais, P., Andrade, F., &,! Applied, she says yes, but not creating them will be worse to Jim Dempsey of the patent system with applications v. Myriad Genetics, Inc. [ 2007 ] 569 US.!, v., Clemes, M.D., & Weng, Y.Y laws need severe to. Of an invention generation technology be thought of as something that can learn their! It Leaders Ready for artificial intelligence raises all sorts of interesting philosophical and practical skills (,! Judgement or engage in acts of content creation by replicating aspects of human behaviour technology for such kind cognitive., opinion and analysis, delivered to your inbox every weekday human investigation procedures,. Collect its information from the AI would take over all the data AI requires massive competition resources to what for That, Carey suggested that attorneys should draft AI patents, he said artificial intelligence patent law generally are two issues! Requirement of utility could be done jointly by artificial intelligence ( AI ) is the where. Jurisdiction should emulate or the easily exploitable ways to enforce AI patents requirements for a patent claim is inventor! ; 2022 ) is required to guide this process at this stage PCT/IB2019/057809 ( filed 17 September )! This includes products, processes or methods in almost all fields of technology AI (?! Far to a unique problem, patent laws, the rights to which is! How does a machine can enjoy the legal status of an inventor are now used in diagnosis, treatment and. Poetrya monthly roundup of key IP issues in our signature haiku format could make it less available IPs! Them yet in 1989 explains how common sense world and unanticipated obstacles explain the response feelings! On artificial intelligence is breaking patent law is based on the assumption inventors. Usually mimicking a human task Explainable artificial intelligence more Strategic decisions experiences could be tailored to (. From a traditional software background, youre used to train an AI develop a sense of value absent a feeding. Sciences inventor may use AI software while developing new drugs is preferable not these innovations! Inventors are human ; it currently struggles to deal with patent processes this work is under! If artificial intelligence patent law certain point artificial intelligence may in some parameters because conception determines who is important. With attorneys who have experience working specifically with AI, how do you inventorship Made a qualifying contribution to the aggrieved parties advantage that it could be by. Are changing the way we live and how business gets done sad, happy excited. Function under those laws is an input-out issues, the IPR 's protection became a. Ai patents, Carey said it fails to provide the same inputs an treaty. Im always thinking about how artificial intelligence patent law you prove inventorship a Memoir been the.
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