Rydex Technologies LLC v. Baxter International Inc.
MEMORANDUM OPINION regarding Defendants' MOTION for Summary Judgment. Signed by Judge Richard G. Andrews on 5/15/2015. Associated Cases: 1:13-cv-00664-RGA, 1:13-cv-00665-RGA, 1:13-cv-00667-RGA, 1:13-cv-00668-RGA(nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RYDEX TECHNOLOGIES, LLC,
C.A. No. 13-664-RGA
BAXTER INTERNATIONAL, INC.,
RYDEX TECHNOLOGIES, LLC,
C.A. No. 13-665-RGA
RYDEX TECHNOLOGIES, LLC,
C.A. No. 13-667-RGA
RYDEX TECHNOLOGIES, LLC,
C.A. No. 13-668-RGA
Timothy Devlin, Esq. (argued), The Devlin Law Firm, Wilmington, DE; Xiyan Shang,
Esq., The Devlin Law Firm, Wilmington, DE; Attorneys for Plaintiff.
Philip A. Rovner, Esq. (argued), Potter, Anderson & Corroon LLP, Wilmington, DE;
Jonathan A. Choa, Esq., Potter, Anderson & Corroon LLP, Wilmington, DE; Alan R. Silverstein,
Esq., Potter, Anderson & Corroon LLP, Wilmington, DE; Mary Matterer, Esq., Morris James
LLP, Wilmington, DE; Benjamin J. Bradford (argued), Esq., Jenner Block LLP, Chicago, IL;
Rodger D. Smith, II, Esq., Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE; Christopher
L. McArdle, Esq. (argued), Alston & Bird LLP, New York, NY; Deepro Mukerjee, Esq., Alston
& Bird LLP, New York, NY; Denise S. Kraft, Esq., DLA Piper LLP, Wilmington, DE; Richard
T. Mulloy, Esq. (argued), DLA Piper LLP, San Diego, CA; Attorneys for Defendants.
Plaintiff asserts that Defendants' medical devices infringe U.S. Patent No. 5,913,180
("the '180 patent"). The patented technology relates to a nozzle that controls the delivery of
fluid to a fluid container, exchanging information between the fluid container and a delivery
system. See '180 patent at 1:5-26. The patent specifically directs itself to fuel delivery for
vehicles. See, e.g., '180 patent at Abstract ("A fluid delivery nozzle for wireless communication
to either an active or a passive device located on a vehicle ... "). The patent contemplates using
the technology for fluid delivery systems in other contexts. '180 patent at 21 :46-51 ("The
preferred embodiment described herein is a liquid petroleum fuel delivery system. The invention
can, of course, be used with a delivery system for any fluid, such as water, compressed gases,
pharmaceuticals via intravenous injection, ammonia, solvents, engine oil, transmission fluid,
paint, beverages, herbicides and pesticides, and so on.").
The parties agreed to stay the case pending the resolution of Defendants' motion for
summary judgment, and the Court granted leave to file Defendants' motion for non-infringement
and construction of particular claim terms. (D.I. 45, 46). 1 The Court has considered the parties'
briefing (D.I. 48, 54, 59, 62) and held a hearing on the issues. (D.I. 75). In a related Markman
Opinion, this Court has construed two terms of the '180 patent, "fluid container" and "nozzle."
The Court has construed fluid container as "receptacle for storing fluid." In the Markman
Opinion, the Court determined that "fluid container" was a required element of the claims,
something Plaintiff had disputed. The Court has construed nozzle as "a spout capable of being
connected to the end of a pipe, hose, or tube, used to dispense fluid, and that can be inserted into
a fluid container."
All docket item citations are to the record in Case No. 13-664-RGA, unless otherwise indicated.
Defendants argue they should be granted summary judgment because Plaintiff relies in its
infringement contentions upon a human body to satisfy the fluid container limitation. (D.I. 48 at
p. 6). 2 In reliance on Plaintiffs infringement contentions, Defendants' Opening Brief only
addresses infringement with respect to fluid container on the point that human bodies cannot be
fluid containers. (Id. at pp. 6-14 ). Plaintiff argues in response that the vascular system is a fluid
container even when construed as a "reservoir for storing fluid." (D.I. 54 at p. 13). Plaintiff
adds a second theory that evidence demonstrates that the pump products operate during testing
and calibration with fluid containers. (D.I. 54 at p. 13). Defendants respond with a waiver
argument because the particular theory was not identified in Plaintiffs infringement contentions,
but was first raised in Plaintiffs Brief. (D.I. 59 at p. 5). Plaintiff responds that the
calibration/testing theory was not "new," but without any citations in support. (D.I. 62 at p. 3).
The Court subsequently directed Plaintiff to identify where, if anywhere, its infringement
theories had been made in its infringement contentions. (D.I. 76). Plaintiff did so. (D.I. 77).
Defendants argue that the medical devices do not include a nozzle because the accused
pumping components do not include a spout at the end of a pipe, hose or tube, do not dispense
fluid, and cannot be inserted into a fluid container. (D.I. 48 at p. 17). Plaintiff responds that
even under Defendants' construction of nozzle, the limitation is met, "at least under the doctrine
of equivalents." (D.I. 54 at p. 17). Defendants also argue that the accused products do not have
"input means" or "display means" on the nozzle. (D.I. 48 at p. 19). In response to this
argument, Plaintiff contends that Defendants are attempting to construe, narrowly and
As Defendants note, Plaintiff has accused the human body of being a fluid container against
Baxter, CareFusion and Hospira. Plaintiff has not accused the human body of being a fluid
container against Haemonetics. (D.I. 48 at p. 6 n.2).
improperly, the terms "input means" and "display means" to require that they be physically on
the nozzle. (D.I. 54 at pp. 18-20).
At the hearing, Plaintiff argued that even if the Court ruled against it on its claim
construction points, particularly "fluid container," summary judgment would not be proper
because the devices can operate with containers, especially during calibration tests. (D.I. 75 at
7). Similarly, Plaintiff argued that even if Defendants' products do not have literal nozzles, the
products still meet the element under the doctrine of equivalents. (D.I. 75 at 7).
For the following reasons, Defendants' motion for summary judgment of
noninfringement is GRANTED in part and DENIED in part.
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). The moving party has the initial burden of proving the absence of a genuinely
disputed material fact relative to the claims in question. Celotex Corp. v. Catrett, 477 U.S. 317,
330 (1986). Material facts are those "that could affect the outcome" of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 63 7 F .3d 177, 181 (3d Cir.
2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The burden on the
moving party may be discharged by pointing out to the district court that there is an absence of
evidence supporting the non-moving party's case. Celotex, 477 U.S. at 323.
The burden then shifts to the non-movant to demonstrate the existence of a genuine issue
for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 4 75 U.S. 574, 586-87 (1986);
Williams v. Borough a/West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). A non-moving
party asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
other materials; or (B) showing that the materials cited [by the opposing party] do not establish
the absence ... of a genuine dispute .... " Fed. R. Civ. P. 56(c)(l).
When determining whether a genuine issue of material fact exists, the court must view
the evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
476 F.3d 180, 184 (3d Cir. 2007). A dispute is "genuine" only ifthe evidence is such that a
reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49.
If the non-moving party fails to make a sufficient showing on an essential element of its case
with respect to which it has the burden of proof, the moving party is entitled to judgment as a
matter oflaw. See Celotex Corp., 477 U.S. at 322.
Plaintiff asserts claims 4, 5, 8, 18, 19, and 21 of the' 180 Patent against Defendants. (D.I.
48 at p. 2). Claims 4, 8, and 18 are independent claims, while claim 5 is dependent on claim 4,
and claims 19 and 21 are dependent on claim 18. Claim 4 of the '180 patent is representative:
A fluid delivery nozzle for delivering fluid from a fluid delivery device to a.fluid
container and for communicating information regarding a fluid delivery
transaction to a remote device, said fluid delivery nozzle comprising:
(a) a nozzle capable of controlling a flow of a fluid from a fluid delivery device to
(b) input means provided on said nozzle for allowing information regarding the
fluid delivery transaction to be inputted into said nozzle;
(c) display means provided on said nozzle for allowing information regarding said
fluid delivery transaction to be displayed on said nozzle;
(d) an information storage and retrieval device operably coupled to said nozzle;
(e) a radio operably coupled to the nozzle input means for transmitting
information regarding the fluid delivery transaction; and
(f) receiving means coupled to said display means for receiving fluid delivery
information regarding the fluid delivery transaction.
(' 180 patent, claim 4) (relevant terms italicized). 3
Each asserted independent claim contains the limitation of "a nozzle capable of
controlling a flow of a fluid from a fluid delivery device to a fluid container." (' 180 patent claim
4, 8, 18). Each asserted independent claim also contains a limitation related to an input (or
keypad) and display on the nozzle for information related to the fluid delivery transaction. (Id.).
For purposes of this summary judgment motion, therefore, the analysis of the issues holds for the
three asserted independent claims, and, therefore, also for the three asserted dependent claims.
A. Accused Products
Plaintiff accuses Baxter's SIGMA Spectrum Wireless Smart Pump ("Baxter's Pump"),
CareFusion's Alaris System ("CareFusion's System"), Haemonetics's PCS2 Plasma Collection
System ("Haemonetics's System"), and Hospira's Plum A+ Infusion System and Symbiq
Infusion System ("Hospira's Systems"). (D.I. 48 at 5). Broadly, all of the devices relate to the
delivery of intravenous fluids to patients, contain some mechanism to control that flow, and
possess a display and some input device to monitor and adjust settings.
Per an ex parte reexamination certificate issued on April 26, 2011, claim 4 of the '180 patent
was amended from the version in the original patent. This is the amended version.
Baxter's Pump controls the administration of intravenous fluids, including
"pharmaceutical drugs, blood, blood products, and mixtures ofrequired patient therapy." (D.I.
48 at p. 4; D.I. 52-2 at 8). Baxter's Pump controls the flow of fluid from IV bags into patients,
including a keypad and corresponding visual screen as part of the pumping apparatus. (See D.I.
52-2 at 22, D.I. 52-3 at 19-21). Similarly, CareFusion's System provides "accurate, automated
infusion of a broad range of fluids, medications and blood products" to patients for use in the
healthcare and hospital context. (D.1. 52-4 at 30). The product delivers fluid intravenously
through intravenous tubing, allowing monitoring capabilities through a PC or module. (D.I. 52-5
at 2-7). Haemonetics' s System allows the collection of blood plasma from patients, the selective
removal of specific components, and the return of certain components to a donor or patients.
(D.1. 52-6 at 49-50). When collecting blood from a donor, the device has a valve that remains
open to direct plasma through tubing, and that valve is closed when saline is returned to the
donor. (D.1. 48 at p. 5; D.I. 52-6 at 64-66). A display screen and keys to control the device are
located on a control panel that is separate from the tubing and plasma valve. (Id). Finally,
Hospira's Systems are also used in health care contexts to deliver drugs and fluid to patients.
(D.1. 48 at pp. 5-6; D.I. 52-7 at 3). Hospira's devices' infuser includes a pumping chamber that
during an infusion cycle forces fluid through an IV tube and into a patient. (Id). On each
infuser is an LCD screen and keypad to control the system, including starting and stopping
infusions and displaying various notifications or rates related to dosage or infusion. (Id).
B. Fluid Container Limitation
1. Infringement Theory Related to Human Bodies
In the related Markman Opinion, the Court construed fluid container as "receptacle for
storing fluid." In that opinion, the Court determined that fluid container does not include the
human body or the vascular system, and the Court also addressed Plaintiffs arguments that the
term was not limiting, finding that fluid container was indeed a required element of the patent
"An infringement issue is properly decided upon summary judgment when no reasonable
jury could find that every limitation recited in the properly construed claim either is or is not
found in the accused device either literally or under the doctrine of equivalents." Garf v.
Logitech, Inc., 254 F .3d 1334, 1339 (Fed. Cir. 2001 ). To satisfy the doctrine of equivalents, the
accused product must contain elements equivalent to those claimed in the patent, or perform
"substantially the same function in substantially the same way to obtain the same result." Am.
Calcar, Inc. v. Am. Honda Motor Co., 651F.3d1318, 1338 (Fed. Cir. 2011).
Plaintiff has identified the fluid container as the downstream destination in the Baxter,
CareFusion and Hospira products, in its words, "a patient during normal operation, or a separate
container during testing/calibration." (D.1. 54 at p. 5). The Court is left to surmise what the fluid
container is in the Haemonetics product with respect to this argument. (See id.). 4 Because the
Court has already held that a fluid container cannot be a human body, summary judgment is
granted on all asserted claims with respect to the literal infringement theory that the human body
is a fluid container.
The related doctrine of equivalents theory must also fail. At the hearing, Defendants
argued that Plaintiffs infringement contentions did not allege a doctrine of equivalents theory
for the fluid container limitation. (D.I. 75 at 61). In a letter to the Court, Plaintiff offers that the
In his expert report, Dr. Rice writes: "It is my understanding that Haemonetics is not contesting
the term 'fluid container' so I will not address that issue here." (D.1. 58-1 at 74 ~ 194).
Plaintiffs fluid container contention against Haemonetics is that the plasma collection bag is a
fluid container. (D.I. 77-1 at p. 6).
infringement contentions address the doctrine of equivalents for the term "a nozzle capable of
controlling a flow of a fluid from a fluid delivery device to a fluid container." (D.I. 77 at 1).
Even though the doctrine of equivalents contention addresses a broader term, not simply "fluid
container," the Court accepts without deciding that Plaintiff has addressed this argument in its
In the summary judgment briefing, Defendants argue that a human body cannot meet the
fluid container limitation under the doctrine of equivalents because it does not perform
substantially the same function in the same way with the same result as a fluid container. (D.I.
48 at 14). Plaintiff does not respond to this doctrine of equivalents issue in its Opposition and
Sur-Reply briefs. (See D.I. 54, 62). Plaintiffs expert Dr. James Rice, however, does offer a
conclusory doctrine of equivalents argument for the fluid container limitation. (See D.I. 58-1 at
5 ~ 16). Burying this theory in an expert declaration, not in response to Defendant's briefing,
might be a waiver even ifthe theory were fully set forth in the declaration. 5 Dr. Rice, however,
sets forth no analysis at all in his declaration to support a doctrine of equivalents argument. (See,
e.g., D.I. 58-1 at 12 ~~ 33-36). The doctrine of equivalents argument is therefore waived.
In any event, Plaintiffs doctrine of equivalents theory must fail because the function of a
human body is not to store or receive fluid. A human body is not the equivalent of a receptacle
for storing fluid because it does not provide substantially the same function as a container for
liquid. A human body does not obtain the same result as a receptacle used to store fluid, and it
certainly does not function the same way as a container such as a beaker used to house fluid
See Fed. R. Civ. P. 56(c)(3) & (e)(2).
Therefore, as the argument has been waived and is also meritless, summary judgment is
granted on the doctrine of equivalents theory for the human body.
2. Infringement Theory Based on Testing Theories
One of Plaintiffs theories is that each of the accused products operates during testing or
calibration with containers. (D.1. 54 at p. 13). With Baxter's Pump, Plaintiff points to a service
manual which outlines how the product's flow rate can be tested using a collection vessel. (D.I.
54 at p. 13; D.I. 56-4 at 16). For CareFusion's System, Plaintiff cites the product's user manual,
which describes configuration testing that uses a fluid receptacle. (D.I. 54 at p. 13; D.I. 56-5 at
12). With Hospira' s Systems, Plaintiff identifies service manuals, which outline testing
procedures that use collection containers and a graduated cylinder. (D.I. 54 at p. 13; D.I. 56-6 at
2-9; D.I. 58-1 at 10 i! 28). Plaintiff does not appear to identify a testing theory against
Haemonetics's System. 6 Defendants have responded that this infringement theory is
procedurally improper because it was first brought up in the opposition briefing, and was not
included in the infringement contentions. (DJ. 59 at pp. 5-6; D.I. 79 at 24-25). 7
The case currently occupies an unusual procedural posture. Pursuant to the scheduling
order, Defendants sought permission to file a motion for summary judgment of noninfringement
prior to the dates listed in that original scheduling order. (See D.I. 15 at 9). The parties
stipulated to a request for early summary judgment, which was granted by the Court, agreeing
Haemonetics' s products are different. Plaintiff does
fluid container limitation in the Haemonetics System.
collection bag is a fluid container. (D.I. 77-1 at p. 6).
argument with Haemonetics's System in the briefing.
not contend that the human body meets the
Instead, Plaintiff contends that the plasma
Plaintiff does not raise the testing
(See D.I. 54 at p. 13).
In a letter to the Court, Plaintiff confirmed that the first time it raised this theory was in the
summary judgment briefing, and not in its infringement contentions. (D.I. 77 at 1).
that "resolution of the issues raised in Defendants' request will assist the efficient resolution of
this matter." (D.I. 45 at 2). That stipulation recites that Plaintiff previously served its
infringement contentions on April 30, 2014, and that the Court would stay all other proceedings
and deadlines. (Id.). The stipulation for early summary judgment also states that "[i]f Rydex
believes it requires any discovery related to any Defendant in response to any motion or portion
of motion, the parties shall promptly confer regarding such discovery and seek to resolve any
issues, and shall utilize their best efforts to complete any such discovery so as not to disturb the
briefing schedule set forth above." (Id. at 3).
The stipulation for early summary judgment appears to presuppose the filing of proper
infringement contentions. The stipulation seems to assume that the issues to be addressed in the
summary judgment briefing would be defined by the theories raised. On April 30, 2014, Plaintiff
served its infringement contentions on Defendants. (D.I. 45 at 2; DJ. 59 at p. 5). Defendants
filed their motion for summary judgment more than four months later. (DJ. 47). Therefore, it is
understandable that Defendants may feel blindsided by infringement theories first seen in
Plaintiffs answering brief. 8
Plaintiff broadly argues that it agreed to the filing of early summary judgment well before
discovery and expert reports. At the oral argument, Plaintiff stated that "I think because the case
was stayed, we didn't - and because of the procedural process we were in, we did not
procedurally go through a mechanism of seeking to amend the contentions," adding that it could
amend the contentions if the Court requested. (D.I. 79 at 54-56). In a letter to the Court,
Defendants cite a number of cases for support to barring the new infringement theory because it
was not made in the infringement contentions and because Plaintiff has not amended them. (D.I.
59 at p. 5). However, the Court does not believe that the cases are particularly helpful because
this procedural posture, including the early summary judgment briefing, is unusual.
Plaintiff also stated that, in the infringement contentions, Plaintiff reserved its rights to amend its
contentions regarding the doctrine of equivalents based on claim construction and other
developments. (D.1. 77 at 1). 9
While it is a close call, the Court will not grant summary judgment on this issue because
Plaintiff has offered sufficient evidence that testing uses fluid containers that meet the
construction of the term. Plaintiffs failure to include this theory in its infringement contentions
was deficient, but under the circumstances, not so inexcusably deficient that the Court will
consider the argument waived. The case was stayed near the beginning to allow for the early
summary judgment motion. Had the case proceeded as outlined in the original scheduling order,
Plaintiff would have had ample opportunity to amend its infringement contentions and conduct
discovery to determine the viability of this theory. At the hearing, Plaintiffs counsel said that
typically parties update infringement contentions after a Markman proceeding, and that it acted
in good faith: "I have no intention, your Honor, of sandbagging people .... All of this was done
in good faith as a mechanism to try to address a couple of claim terms early for both sides,
because it would be beneficial." (D.I. 79 at 56). The Court accepts that Plaintiff acted in good
faith, and therefore, in the interest of justice, it will allow this argument proceed. Defendants'
summary judgment argument with respect to the infringement testing theory, therefore, is denied.
C. Nozzle Limitation
In the related Markman opinion, the Court construed nozzle as "a spout capable of being
connected to the end of a pipe, hose, or tube, used to dispense fluid, and that can be inserted into
Plaintiff further stated: "Given the advancement of the claim construction and
summary judgment motions in the schedule, waiting for a claim construction ruling was
not possible. Accordingly, Rydex supplemented and clarify[ied] its equivalents arguments in
briefing (D.I. 54), once both the Parties' claim construction positions were understood." (D.I. 77
a fluid container." Defendants argue that the accused medical devices do not have nozzles
because the pumping components do not include a spout at the end of a pipe, hose or tube, do not
dispense fluid, and cannot be inserted into a fluid container. (D.I. 48 at p. 17). Plaintiff responds
that even under Defendants' construction the limitation is met under the doctrine of equivalents.
(D.I. 54 at p. 17). Finally, Defendants also argue that the accused products do not have "input
means" or "display means" on the "said nozzle." (D.I. 48 at p. 19).
It is challenging to determine specifically what Plaintiff is alleging is a nozzle in the
accused products. Plaintiff states that "[e Jach device includes a short tube with a constriction
used to direct a flow of fluid," which is consistent with Plaintiff's proposed construction. (D.I.
54 at 17). As Defendants demonstrate in their response, Plaintiff cannot merely call tubes and
valves nozzles because a nozzle must be connected to a tube or a hose; it cannot be that
intermediary tube, or a valve along that tube. (D.I. 59 at 8). Likewise, the nozzle must
"dispense" fluid from the tube; it cannot merely pump fluid within the tube. (Id). Therefore,
there is no evidence of literal infringement, because there is no spout, and the alleged nozzles are
not dispensing liquid to a fluid container. Merely constricting or directing the flow is not enough
to meet the literal limitation of "nozzle."
Plaintiff, however, is on stronger footing with its doctrine of equivalents arguments with
respect to the nozzle. Io Relying on expert testimony, Plaintiff argues that "the downstream
plastic tubing in each device (heading to the container) is essentially a longer, thinner version of
a 'spout."' (D.1. 54 at 17). Subsequently, according to Plaintiff, the components perform
substantially the same function, "controlling the flow of fluid through a narrowed section of a
Io As with the infringement theories related to fluid container, there might be some concern about
whether or not this doctrine of equivalents argument was previously alleged in the infringement
contentions, though at the hearing, the parties seemed to say that was the case. (DJ. 75 at 61).
tube" in substantially the same way, "intervention by mechanical components to selectively
prevent or facilitate fluid passing through the narrowed section" to achieve substantially the
same result, "delivering a precise amount of fluid to a fluid container." (D.I. 54 at 18). Plaintiff
has provided sufficient evidence to overcome the motion for summary judgment on this issue
with respect to the doctrine of equivalents argument. Therefore, the Court denies Defendant's
motion for summary judgment with respect to the doctrine of equivalents argument for the
As for the arguments related to whether or not the products have an input or display
means located on the nozzle, the Court finds that the literal infringement argument must fail for
the same reasons it does for the nozzle limitation. Plaintiff has not identified nozzles in the
products that meet the requirements of the Court's construction. Therefore, Defendants'
argument with respect to this theory is granted.
However, Plaintiff does have a colorable argument under the doctrine of equivalents that
the input and display means are located on a nozzle. Plaintiff, relying on its expert witness,
argues that the input/display performs substantially the same function, "input and display of fluid
transaction information to a user operating the nozzle," in substantially the same way, "providing
a keypad or touchscreen and display screen in direct proximity to the nozzle," achieving the
same result, "input and display of information to the user without the need for the user to tum or
move away from the nozzle." (D.I. 54 at 20). Plaintiff has offered sufficient evidence to create a
disputed material fact on this issue. Therefore, the Court denies summary judgment with respect
to the doctrine of equivalents on the input and display means on the nozzle.
For the reasons stated above, Defendants' Motion for Summary Judgment is granted in
part and denied in part. Plaintiff may proceed against Haemonetics on a doctrine of equivalents
theory, and against the other three defendants only on a doctrine of equivalents testing theory.
A separate order will be issued.
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