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Could You Really Do Better than the USPTO? 98

lllama asks; "Is there such a thing as an obvious patent? Some ideas are so obvious that they needed to be stated before it's clear how obvious they are. Some are so blindingly simple that maybe a few dead monkeys might not have thought of them first. How would one go about deciding which ideas deserve a patent? Could/Should the patent office open itself up for public voting or moderation? Could a voting system affect how long a patent is grated for? Should the system be allowed to be swayed by public opinion? Should there be another tier of patents that protect IP but cannot be licensed out for money (BSD style patents?)? Given that simply hearing an idea affects how obvious it appears, could a system be devised that would allow an unbiased measure? An Obvious Quotient as such. Is there an obvious other word for 'obvious' that I could be using?"
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Could You Really Do Better than the USPTO?

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  • Score! (Score:3, Funny)

    by FueledByRamen ( 581784 ) * <sabretooth@gmail.com> on Tuesday July 29, 2003 @07:15PM (#6565579)
    Mod all SCO patents (-1, Redundant)
  • Isn't this is the point that most people who are against all 'IP' style rights make. Why protect some things and not all things? Where do we draw the line?

    I guess the Reasonable Man will tell you what is Obvious...
    • There is no chance that the patent system will go away. While it could use an overhaul, it is not a problem itself, just as copyright is a good idea, it's just not a good idea when taken to infinity.

      The problem is with the implementation of patent decision right now. Anything can get a patent nowadays, and trivial one-off patents ('obvious') need to go. The fact that you can retroactively add to patents is also a problem.

      I also think that there should be some way to differentiate patents based on t

      • Working model (Score:3, Insightful)

        by PaulBu ( 473180 )
        Working scale models were good fot the old days when mostly mechanical devices were patented. But now the majority of NON-TRIVIAL patentable ideas require large (if not huge) capital investment to make even a proof-of-concept breadboard thing. And VCs who invest money like to see granted patent(s) before they invest...

        If anything, this requirement would shift balance towards obvious stuff. Think how hard would it be for anyone to code a mock-up of a "one-click" patent! ;-)

        Paul B.
        • Working scale models were good fot the old days when mostly mechanical devices were patented. But now the majority of NON-TRIVIAL patentable ideas require large (if not huge) capital investment to make even a proof-of-concept breadboard thing.

          I think that's the point. Patents are designed to protect those people who expend the time, effort and money to develop a proof of concept. They were never intended to grant proprietary rights to someone who simply comes up with an idea and then sits back waiting

    • this is surely llama's point. As it is, a `reasonable man' at the patent office makes the decision on our behalf. Maybe a more democratic system would be advantageous. IP rights exist and are necessary, but should things like genes be patented? Or physical laws like gravity? Lines have to be drawn, and the more open that process is the better.
  • The easy answer: (Score:4, Insightful)

    by janda ( 572221 ) <janda@kali-tai.net> on Tuesday July 29, 2003 @07:21PM (#6565634) Homepage

    Is it implemented in software?

    If so, no patent.

    If it implemented in software and hardware?

    If so, no patent on the software portion.

    Is it implemented entirely in hardware?

    Build a working model of it, and submit it. You might get a patent.

    • you forgot:

      Did I do this while I was a kid?

      Can I find something equivalent with a single internet search?
    • by Anonymous Coward
      Is it implemented entirely in hardware?

      Build a working model of it, and submit it. You might get a patent.


      This is too broad. Many pieces of hardware are just "solidified software."

      They should only get a patent on the PHYSICAL aspects of that hardware, not what's running inside it, IMO.

    • Nice, spend half of your life designing an incredibly complex piece of machinery only to have the details leak out, someone with lots of resources builds it first, and you die penniless and unremembered.

      Great. Idea.
    • MOD PARENT UP!! (Score:3, Interesting)

      by darnok ( 650458 )
      ...and add:

      All pre-existing hardware and software patents are revoked in 12 months. Anyone holding these patents is free to reapply (i.e. the existing model is screwed and bad patents have been awarded. Need to weed this out)

      If it's an IT-related patent, maximum patent length is 3 years.

      If patent enforcement creates a court-ruled monopoly situation, patent is revoked.

      Patent queries relating to prior art are investigated as a priority. If existence of prior art is established, costs of investigation a
  • Pat(ent) Answers... (Score:4, Interesting)

    by jrpascucci ( 550709 ) <[moc.oohay] [ta] [iccucsaprj]> on Tuesday July 29, 2003 @07:26PM (#6565681)
    You don't patent an idea...or at least you aren't supported to: you patent the execution of an idea - the 'how'.

    Yes, the system should be allowed to be swayed by public opinion, or at least expert opinion: we make requests for comment to academia, for instance, all the time in plenty of areas of government, why not the patent system?

    The Patent system was designed to reward innovation and further the public good. It's our way of conferring the 'king's monopoly' to those who do something useful. It's supposed to avoid uncreative people making cheap knock-offs of a good implementation and profiting that way, but, it's supposed to be only for a limited period of time, to encourage additional innovation. Given the speed of our economy, a 3-year patent cycle might be just the thing we need to boost it in the 'right way'.

    Other words for obvious might be: trivial, uninteresting, derivative.

    Final note: there's no reason why Patents have to be awarded so statically, or that the government couldn't charge a variable fee.

    For instance, any product that is protected by patents could be required to pay a 5% patent-surcharge (minimum $1k/yr to keep the patent), instead of a static fee of a few hundred dollars.
    • I agree with your overall comments, but object to the concept of submission to academia.

      An individual who would be called an academic is an individual who would have a vested interested in eliminating all patents and no interest in perpetuating any. They would not be impartial.

      They may be "qualified" to comment on government policy or economics, but that's only because that generally amounts to so much hot air. They should have no say on individual patents.
    • Make the prior-art search open-sauce:

      Once an item is under consideration, put the application up on the 'net, and ANYONE who knows of prior-art can prove such exists BEFORE any granting-of-patent, thereby unscrambling the mix, as it were.

      And if that doesn't make the patent-granting-judgement tastier to us all, then nothing will.

      This idea itself can't be patented by anyone now, because of prior art, So There, Nyaa Nyaa Nyaa.
      : P

      PS - this is actually the same idea as opensourcing even the spiciest spa

  • by loftwyr ( 36717 ) on Tuesday July 29, 2003 @07:27PM (#6565688)
    The problem with all of those ideas are the same as the ones we have with slashdot...

    Voting won't work because large compnaies can get people to vote for them through PR and links on the site and all sorts of manipulations.

    Moderation by outsiders is subject to all kinds of abuse. Even without trolls and people just putting an automatic no on everything.

    Most importantly, by putting it up for review to the public, every company's competitors would work their butts off to ensure that patent wasn't granted so they could use the idea themselves.

    An acedemic review of sorts could work with a public request for prior art previous to ussuance but how long should the USPTO wait?

    The system in place is broken but you would have to re-look at the whole idea of intellectual property in order to create a working system.
  • by Bistronaut ( 267467 ) * on Tuesday July 29, 2003 @07:32PM (#6565731) Homepage Journal

    USPTO begins using Slashcode.

    Some of the first patents issued under the new system:

    • Apratus and Method for getting Fir$t P0st!!!
    • Subtle linking to goatse.cx
    • Microsoft Suxors!
    • System for posting polls that BRING BACK THE COWBOYNEAL OPTION
    • Wow, I just noticed something. This is the one article on /. I've seen in the last month where nobody rushed for first post. Kinda funny, when you think about it, since first posts are the whole point of the USPTO.
  • by J. Random Software ( 11097 ) on Tuesday July 29, 2003 @07:40PM (#6565801)

    Hire some qualified practicioners in each field (under strict NDAs). Give them a statement of the problem being solved. If they come up with the same solution within a few days, it's so blatantly obvious that the "inventor" is really trying to patent the problem instead of a solution. While you're at it, start enforcing this:

    It is required that the description be sufficient so that any person of ordinary skill in the pertinent art, science, or area could make and use the invention without extensive experimentation.--
    USPTO [uspto.gov]

    instead of the mountain of gibberish they've accepted to date, and drop the USD 2500.00 "request for ex parte reexamination" fee they demand for pointing out their own mistakes.

    Remember, a patent only promotes progress if the cost of licensing it (plus their share of the USPTO overhead) is less than the cost of every licensee having to independently discover it. Granting monopolies on "inventions" that anyone competent would immediately produce in the ordinary course of their work doesn't benefit anyone productive.

    • Hire some qualified practicioners in each field (under strict NDAs). Give them a statement of the problem being solved. If they come up with the same solution within a few days, it's so blatantly obvious that the "inventor" is really trying to patent the problem instead of a solution.

      That's a great idea! In fact, they could probably have something similar to the way TopCoder handles the architecture review boards. Basically they have lots of small component designs come in and need people to review them
    • Just of note... Doesn't enforcing that quoted clause ensure that there will be some level of obvious to the invention? It seems to go against your first paragraph recommending the hire of a bunch of random people in the same field and seeing if they can come up with the solution. So to be granted a patent the solution has to be such a stroke of genious that given time to do nothing else, a team of experts can't come up with that solution, but not so obscure that anyone could make the invention? My probl
      • The requirement is just that the description be clear and complete. I've been a developer for eleven years and read RFCs for kicks, yet the few patents I've tried to read didn't make any sense--they completely fail to promote progress. I suspect they're deliberately obtuse, so examiners (who have strict quotas to meet) can't really tell whether the invention is obvious and rubber-stamp them by default.

        The USPTO's task is to reject applications for patents on non-novel and obvious inventions, which examiner

    • This approach presupposes the qualified practitioners had full knowledge of the prior art base. In reality, the possible outcomes any one or more practitioners could generate with respect to the prior art base are proportional to their knowledge of the prior art base. Therefore, both the quantity and quality of the prior investigation are important considerations.

      As has been stated in cases in considering such an approach:

      ... the court can quickly find itself caught up in an investigation of what was o

      • I'm not trying to replace prior art searches (though they seem seriously ineffective) so much as prevent patents on ideas so obvious that nobody even bothered to write them down in a form that an examiner can cite as prior art.

        Publishing larger searchable databases of prior art attacks the problem from another direction, but RMS and others have pointed out that prior art the examiner looked at is largely ineffective in a later legal challenge, because courts presume examiners did their job correctly (thoug

      • It seems that most of the genuine objections I've seen to USPTO-granted patents fall into fairly precise categories:

        • the patent really is obvious to anyone knowledgeable in the field, or
        • the patent blatantly represents widely known prior art, or
        • the patent is written in waffly terms, such that
          • no-one else could reproduce the implementation it's supposed to describe, so it benefits no-one but the claiming party, and
          • it can be used as a commercial weapon, by interpreting it favourably when enforcing it aga
    • Unfortunately this ignores stupidity factor. Some solutions are just too stupid to be suggested by an expert, and could end up getting patented. There really are patents for multi-time pads out there!

      While some may say that this is a good thing (prevents other people from being stupid by taking away the stupid option), it isn't really. Sometimes an overly broad stupid patent may cover a decent idea that the original (stupid) inventor didn't think of. Worse, a patent usually indicates some sort of prog

    • The problem is that this won't reward people who come up with inventions a before others. Lets say Inventor A invents product X on January 1, 2004. He applies for a patent on February 1, 2004. By April 1, 2005 (14 months after filing, which is how long the Patent Office attempts to examine patents), product X may already be on the market. Any "expert" hired to solve the problem will recite product X, but the reality is that product X did not exist until Inventor A invented it. Patents are supposed to be exa
  • The problem is, the USTPO doesn't want to better the people, it sees itself as revenue generating arm of the federal government. It wants to help create as many patents as possible so it can charge individuals and corporations to have their own patents. It believes that by helping people create patents, it is helping businesses protect and build themselves.

    Until that mindset is changed, we will continue seeing patents for the incredulous, the obvious, the impossible, and the idiotic. Problem is, this is
    • It believes that by helping people create patents, it is helping businesses protect and build themselves.

      Actually, that's true. But only for genuine patentable ideas. It needs to be novel, non-obvious to the practitioner in the field, have a prototype, etc. And shorten the patent terms.

      Patents were supposed to help the little guy. Let him get his unique product out on the market before megacorp steals his idea and grinds him into the dust with economy-of-scale. But with the rubber stamp mentality of the
  • 200 tambourine playing monkeys with a big rubber 'approved' stamp would work about as well and cost taxpayers a lot less money and expose the patent system for what it really is lately -- a big friggen joke.

    If we give the monkeys actual ink to stamp with or let them use their fecal matter is of little concern to me. I think the fecal matter would just drive the point home a bit better though.

  • Eliminate patents. They are an artificial granting of monopoly by the government, and discourage competition.
    • You will have to do better than that. In fact they are a monopoly created by the inventor. If they didn't file a patent, they could just keep a invention a secret forever. Good-bye new medicines. As for competition, the patent IS competition. It forces companies to spend money on R&D to create new things. For a time those things invented will be exclusive to that creator, but at least they will exist in the first place. But hey, get rid of patents. I just hope you don't ever get HIV cause they a
      • I recommend you read some of the articles from Mises.org. US Patent laws are unbelievably biased in favor of patent-owners, and give them a monopoly to charge above what the market would otherwise afford. This is *proven* by the fact that they are willing to sell much much cheaper in foreign countries (and are now trying to ban re-imports).
        • US Patent laws are unbelievably biased in favor of patent-owners, and give them a monopoly to charge above what the market would otherwise afford.

          That, however, is a problem with the implementation of patents in the US, and not with the principle of patents per se.

          As far as I'm aware, no other country in the world suffers anything like the same problems with patents at the US does. Having worked in industries where patents are relevant and genuine R&D does result in genuine new developments, I thi

    • I don't think we as a society are ready to do away with patents. Copyrights yes, I think we are more than ready to get rid of Major Collective Entities claiming ownership of intangable collections of ideas that weren't even created by them. The whole Corporation + Copyright was a really bad idea to begin with IMHO. Giving company's the rights to own someone else's life work just so they could sell it is rediculus.

      Patents will have to go when people invent something that allows things to be invented o
  • One glaring problem with the patent office today is that it allows you to patent ideas that you "had in the shower," so to speak.

    Patents exist in order to encourage inventors and labs to expend the resources to come up with inventions. They are encouraged by having exclusivity over their idea for a limited time. This incentive provides the "activation energy" for inventions that would probably otherwise not come to be, and it is pretty hard to argue against. Pharmaceutical companies, chemical engineering c
    • while trying to educate myself ( to some deg ) and find resources for developing a plan and filing for a business method patent, low and behold the topic. im not quite sure what it is i should now ( good natured sarcasm ) , through it all in the trash, or just post it on the web so all those more qualified can pursue it as i sit back and watch...... decisions.
      the fact that i have expended a large amount of my own time and resources in this endeavor leaves me little choice.
      cake anyo
    • The problems with requiring the expenditure of resources to get a patent are:
      (a) define the level of expenditure which merit a patent? Would it be the same for all patent classes? Would it change over time? If so, how would you do this?
      (b) by setting a level you encourage inefficiency or at least purported inefficiency. That is, instead of thinking up something in the shower, the inventor goes to great lengths to 'prove' all the effort they went to to develop the invention. Sure, audits mitigate this b
      • It's true that it's hard to audit the expenditure, but it shouldn't be *that* hard. If someone really wants to waste a lot of money in order to get a patent, then that patent is hopefully worth his time and money. I want to mainly get rid of the ridiculous patents, and having to expend a lot to get the patent will make it hard for one guy to patent a lot of dumb stuff.

        > Hardly seems fair that we would encourage the inefficient dumb thinking X's of the world and not encourage the insightful,
        > question
    • Why don't i ever have any moderation points when a posting like this comes up!!!

      This is exactly the point that nearly everyone misses. No company would spend a billion dollars researching an idea if they had no way of protecting that idea until they had had time to recoup their research money (and make some profit from it). It just wouldn't happen. The patent system allows this research to be worthwhile in the eyes of shareholders.

      The patent system needs to be policed better, but without it private sector
  • What if, as in certain country around the world, you simply had no patents? It works this way already a lot of time. Let me explain. If someone invents and patents something in America and then someone in China want to make the same item or use same process, then the company in America can do nothing!!

    Since the world is becoming one big economy and unit having separate patent in multiple country is like having no patent at all! So perhaps we could live without patents at all, and who ever can market the be
    • What if, as in certain country around the world, you simply had no patents?

      I question, quite sincerely, how many of those countries develop significant numbers of new inventions compared to countries that have parents. My (limited) experience is that most of the new tools, technologies and similar developments in such countries are copied from essentially the same things in other patent-offering countries, where the original research to develop them was done.

    • A patent gives exclusive rights to "make, use, sell . . . and import" the invention. The American company could still enforce the patent.
  • There are problems with stupid patents being granted, the way to fix that is to allow legal action to be taken against the patent office when they fail to do their job.
    The US patent office is clearly negligent, they award obvious patents which they arent supposed to do, if the US government (their boss) lets them keep doing the wrong thing then why will they ever change ?

    The biggest objection i have to Patents is the amount of time that "inventors" get granted monoply use of "their" idea.

    A better system
    • A better system would be one where the amount of time granted for exclusive ownership of the idea is based on how much developement goes on in that area.

      I'm not sure it's quite as simple as that -- probably the effort required to implement the invention would also be relevant, for example -- but I think the idea of granting varying degrees of exclusivity has a lot of merit.

  • by E_elven ( 600520 ) on Tuesday July 29, 2003 @09:27PM (#6566705) Journal
    I think just buying them a computer and maybe one of those free AOL discs would quite suffice. And maybe some training in using Google (and thereby also enforcing the belief that a search engine has already been invented.)
  • One thing that must be kept in mind is that patent applications are initially kept confidential. That way if the pto denies the patent application, the inventor is not required to publish their ideas with no form of compensation.
    • I realise that what you say is currently the case, but I'm not sure it's a good idea to limit investigations as a result. After all, if you apply for a patent and it's turned down, chances are the confidentiality wasn't protecting much anyway.

  • Preliminary Patent (Score:3, Insightful)

    by occamboy ( 583175 ) on Tuesday July 29, 2003 @10:25PM (#6567065)
    I've been awarded a few patents; based on my experiences, here's my take:

    Seems to me that the biggest problems are:
    1. Examiners generally look only at prior art that has moved through the patent office, and do not have general knowledge of a field. So if prior art exists that is unpatented, even in very common use, the examiner may not know it.

    2. Once a patent is granted, even one for which there is ample identical prior art that the examiner missed, "infringing" on the patent and having the courts decide is a horror show.

    My suggestion is that a patent first be granted and published with some period for the public to comment to the examiner, say, 90 days. This would give people knowledgable in the field of the patent time to point out prior art that the examiner missed. After the comment period, the examiner has another 90 days or so to finalize (or reject) the patent, giving it all the same protection that patents currently have.

    This system would probably prevent a ton of bad patents.
    • I do not find prior art or demonstrating infringing to be an issue.

      The biggest beef I have is that patents are used as tollbooths on non-existent tollroads. That is, the principal way the system is abused is that people think up something they think could potentially be useful, try to patent it, and hope someone comes up with a working model so that the patent holder can use his monopoly to financial advantage. This occurs because most patents are granted to people who never intend to create a working mode
  • How do you tell if it's obvious? Well, if it's already become [uspto.gov] common [uspto.gov] practice [uspto.gov] - that might be a clue. And if there already a term for exactly what's patented, like caching [uspto.gov], I would assume it fit the definition of "obvious".

    Personally, I think the USPTO should:

    1. Require patents to be submitted in layman's terms that anyone knowledgeable in the subject can read, rather than in the legalese crap that's commonly used that only serves to obfuscate the issue. Patents should be rejected if they are unreada
  • How about having some sort of elected body of people who look at the patents and decide based on their knowledge of the applicable field(s) whether it should be granted and for how long. Almost like the court system. These people would be knowledgeable in their fields and elected.

    Unfortunately you'd probably end up with a group of people put in place by the microsofts of the world...
  • Don't evaluate patents at all. Just pay a fixed fee for stamping any piece of junk you want as "accepted at YYYY-MM-DD HH:MM:SS". Your junk becomes immediately available for the public, for free. Allow submission in electronic form through the web, using digital signatures. In short - bye bye USPTO, hellow stupid PHP web server.

    Then, if/when someone want to sue another for infringement, let the court sort it out. The big point is that the court will NOT assume that just because the USPTO has stamped some d
    • The problem with that scheme is proving, obviousness and prior art after the event.

      My suggestion:

      1. Inventor submits electronically. The PHP server at the patent office digitally signs the patent and records the date of submission.
      2. The patent contains two parts, an Abstract that species the problem, and which parts of the problem the patent claims to have solved, and a body, that contains the actual description of the device (or what ever) that solves the problem.
      3. The Abstract is published on the patent
  • My suggestion for an alternative version of "non-obviousness" is:

    an historically novel association between previously disparate concepts.

    Under this approach, in addition to novelty (ie. has this product/process been done before), etc., in order to fulfil the requirement for non-obviousness the patentee would be required to:

    Step 1 -- identify all the relevant concepts constituting their purported invention;

    Step 2 -- identify all the linkages/associations between the concepts;

    Step 3 -- of those linkage

  • If it exists in the world outside of computing, and it's just a computer-implemented way to doing the same thing (think eBay): No patent. Actually, no patent on software period.

    Also, I think that granted patents should have a 1-year "probation"; if someone discovers prior-art, the patent gets disqualified quickly and effectively - none of that going to courts crap.

    Failing that "probation period", I think that the actual examiners should be held directly accountable if an "obvious" patent is issued, especi
    • if someone discovers prior-art, the patent gets disqualified quickly and effectively - none of that going to courts crap.

      So who decides if something is prior art?

  • Should there be another tier of patents that protect IP but cannot be licensed out for money (BSD style patents?)?

    Simply disclose the patent in some way. Either to the public, or to your patent attorney. Or file a "preliminary" patent (forget the exact term) and then let it lapse.

    You've just established prior art, and no one else can patent it.

    The problem is that others will take your general idea and patent a specific application. So try to include as many specific applications as you can in your discl
  • A big problem with patents is the poor interaction between patent law and antitrust law. It's easy to get a narrow patent that covers a very specific thing, like the "GIF patent". That's fine, unless someone also has market power that makes some very specific thing a de-facto (or even a formal) standard. Then the patent should be viewed as a restraint of trade. Current antitrust law actually says that, but antitrust cases are so hard to win that it's not effective.

    From a public-policy perspective, pat

  • Ideas are not patentable, they never were, until the USPTO decided to accept ideas and business methods as patents.

    USPTO should return to accepting patent according to the law - no need for voting or public hearing.
  • Preview system (Score:2, Insightful)

    by bobthemuse ( 574400 )
    Has any considered making patent information available shortly before it is patented?

    Offer a 'temporary' patent about a month, during which time people could view the patient but not act on any of the information. People could submit problems or conflicts during this time. At the end of the period, the USPTO reviews the information prior to granting the patent.


    Yes, I know this is all supposed to be taken care of before hand, but judging by the number of reviews of granted patents, it obviously isn't h
  • The only thing most individuals/corporations truly understand is money. So, Make it simple,
    have anyone who is issued a patent that is overturned or has prior art pay back twice the royalties they earned. Also make it free to challenge a patent or a very small reasonable fee like $50.

    This should grossly reduce the stupid profit only patents.
    • You are simply addressing a symptom of a broken system. The underlying problem is that patents are an artificial creation to promote the enrichment of individuals, and maintain their dominance over the non-patent holders. The issue isn't how to patent correctly, but how to remove the oligopoloy of patent holders, and allow mankind to innovate, to reverse engineer and copy for the good of all.
  • i think if the era still warrants patents then there should be a stricter objective of what they are meant to achieve: and in the goal of financially motivated innovation, a time limit on the patent would seem to be more relevant than black letter entitlements.

    this does not have to be a explicit duration, it could be made to expire when the r&d costs are recouped by the product's sales. this involves auditing but a decision to invoke patents should share this responsibility of supervision.

    i think
  • No one in history to my knowledge has proven or even provided a sound argument that patents are a net benefit. They are an artificial monopoly that prevents competition. People assume/argue that without patents there would be no incentive to innovate or to invest in innovation, but history just does not bear that out. I could go on at length about this, but the bottom line is we need to evolve beyond the assumption that patents are a good idea and re-evaluate that basic question.

    Incidentally, I have si

  • I always hear the argument, but "shouldn't people be paid for their inventions", which underlys a basic misunderstanding about patents. Patents can be granted, and are granted, for everything, and no, the 'inventor' isn't entitled to a living or even acknowledgement. Once something leaves the confines of your brain it belongs to all of us.

Never test for an error condition you don't know how to handle. -- Steinbach

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