Catch Curve, Inc. v. Comodo Group, Inc. and Comodo Communications, Inc., No. 1:07-cv-0489 (N.D. Ga. Mar. 31, 2008) (Cooper, J.)
Judge Cooper denied the Defendants’ Motion to Dismiss as to defendant Comodo Communications, Inc., holding that the Court had specific jurisdiction over the out-of-state defendant because it maintained an interactive website accessible to Georgia residents and sold internet fax services to Georgia residents. By contrast, Judge Cooper granted the Defendants’ Motion to Dismiss as to Defendant Comodo Group, Inc., a sister company of Comodo Communications, Inc., because there was no evidence that Comodo Group, Inc. provided internet fax services to any Georgia residents or advertised to or otherwise solicited Georgia customers.
After concluding that the Court had personal jurisdiction over Comodo Communications, Inc., the Court considered and denied Comodo Communications, Inc.’s Motion to Transfer venue to the U.S. District Court for the District of Utah because the Plaintiff’s choice to bring suit in its home state was “not clearly outweighed by other considerations.”
Thursday, April 17, 2008
Motion for Stay of Permanent Injunction Denied
Atlanta Attachment Co. v. Leggett & Platt, Inc., No. 1:05-cv-1071 (N.D. Ga. Mar. 14, 2008) (Evans, J.)
Judge Evans denied the Defendant’s Motion for a Stay of the Court’s permanent injunction, which was issued against the Defendant after the Court granted the Plaintiff’s Motion for Summary Judgment on infringement and validity issues. As explained below, the Defendant filed the instant motion after a somewhat complex procedural history in the appellate court.
The Defendant appealed the Court’s grant of summary judgment to the U.S. Court of Appeals for the Federal Circuit, and a three-judge panel reversed. The Federal Circuit held that the Court had erroneously granted summary judgment that the patent-in-suit was valid after rejecting the Defendant’s argument that the patent was invalid due to the on-sale bar. Consequently, the Federal Circuit remanded the case to the Court for further proceedings. However, the Federal Circuit did not expressly hold that the permanent injunction against the Defendant should be vacated.
The Plaintiff filed a petition for rehearing in the Federal Circuit. The Defendant filed in the Federal Circuit an emergency motion for an order vacating the permanent injunction. The Federal Circuit denied the Defendant’s motion without prejudice to an application to the Court for a stay of the injunction. As a result, the Defendant filed the instant motion in the Court for a stay of the permanent injunction.
The Court declined to grant a stay, noting that the Federal Circuit had not yet issued its mandate marking the conclusion of the appeal. Because the Defendant failed to make a sufficiently strong showing to warrant an exception to the general rule that a permanent injunction remains in effect until a mandate issues, the Court denied the Defendant’s motion.
Judge Evans denied the Defendant’s Motion for a Stay of the Court’s permanent injunction, which was issued against the Defendant after the Court granted the Plaintiff’s Motion for Summary Judgment on infringement and validity issues. As explained below, the Defendant filed the instant motion after a somewhat complex procedural history in the appellate court.
The Defendant appealed the Court’s grant of summary judgment to the U.S. Court of Appeals for the Federal Circuit, and a three-judge panel reversed. The Federal Circuit held that the Court had erroneously granted summary judgment that the patent-in-suit was valid after rejecting the Defendant’s argument that the patent was invalid due to the on-sale bar. Consequently, the Federal Circuit remanded the case to the Court for further proceedings. However, the Federal Circuit did not expressly hold that the permanent injunction against the Defendant should be vacated.
The Plaintiff filed a petition for rehearing in the Federal Circuit. The Defendant filed in the Federal Circuit an emergency motion for an order vacating the permanent injunction. The Federal Circuit denied the Defendant’s motion without prejudice to an application to the Court for a stay of the injunction. As a result, the Defendant filed the instant motion in the Court for a stay of the permanent injunction.
The Court declined to grant a stay, noting that the Federal Circuit had not yet issued its mandate marking the conclusion of the appeal. Because the Defendant failed to make a sufficiently strong showing to warrant an exception to the general rule that a permanent injunction remains in effect until a mandate issues, the Court denied the Defendant’s motion.
Motion for Rule 11 Sanctions Denied
CBT Flint Partners, LLC v. Goodmail Sys., Inc., No. 1:07-cv-3124 (N.D. Ga. Mar. 5, 2008) (Thrash, J.)
Judge Thrash denied the Defendant’s Motion for Rule 11 Sanctions, which was based on an alleged failure on the part of the Plaintiff to properly conduct a preliminary investigation of whether the Defendant’s accused systems infringe the patents-in-suit.
The Defendant contended that whereas the patents-in-suit claim a system that permits senders of email messages to send spam for free, the accused systems do the exact opposite and ensure that consumers receive email that is certifiably not spam. As stated by the Court, the Defendant’s argument was essentially that the Plaintiff’s infringement claim “is so bad that it must have failed to conduct a proper pretrial investigation.” In view of the Plaintiff’s sworn statements that it took a variety of pretrial investigative steps and the fact that the case was still in its pleading stage (“[i]t is extremely difficult to conclude that the claims are objectively frivolous without the benefit of claim construction or more developed arguments”), the Court denied the Defendant’s Motion for Rule 11 Sanctions.
Judge Thrash denied the Defendant’s Motion for Rule 11 Sanctions, which was based on an alleged failure on the part of the Plaintiff to properly conduct a preliminary investigation of whether the Defendant’s accused systems infringe the patents-in-suit.
The Defendant contended that whereas the patents-in-suit claim a system that permits senders of email messages to send spam for free, the accused systems do the exact opposite and ensure that consumers receive email that is certifiably not spam. As stated by the Court, the Defendant’s argument was essentially that the Plaintiff’s infringement claim “is so bad that it must have failed to conduct a proper pretrial investigation.” In view of the Plaintiff’s sworn statements that it took a variety of pretrial investigative steps and the fact that the case was still in its pleading stage (“[i]t is extremely difficult to conclude that the claims are objectively frivolous without the benefit of claim construction or more developed arguments”), the Court denied the Defendant’s Motion for Rule 11 Sanctions.
Motion to Strike Portions of Rebuttal Expert Reports Granted and Motion for Summary Judgment of Non-Obviousness Denied
STS Software Sys. Ltd. and Nice Sys., Ltd. v. Witness Sys., Inc., No. 1:04-cv-2111 (N.D. Ga. Mar. 6, 2008) (Story, J.)
Judge Story granted the Plaintiffs’ Motion to Strike Portions of the Defendant’s Rebuttal Expert Reports because the reports contained new opinions on the obviousness of the patents-in-suit. Specifically, the Court found that the initial report of each expert stated that the patents-in-suit were invalid as obvious but did not provide any reason or basis for this conclusion; it was not until the experts submitted their rebuttal expert reports that they provided a substantive explanation and basis for their opinions on obviousness. Because the Plaintiffs would suffer prejudice as a result of the untimely disclosure of the opinions and because the Defendant did not offer a justification for failing to include the opinions in the initial reports, the Court granted, pursuant to Federal Rule of Civil Procedure 37(c)(1), the Plaintiffs’ Motion to Strike all portions of the rebuttal expert reports relating to obviousness and to exclude at trial all testimony relating thereto.
The Court next addressed the Plaintiffs’ Motion for Summary Judgment, wherein the Plaintiffs argued that because the new opinions presented in the Defendant’s expert reports were stricken, Defendant failed to carry its burden of proof on its obviousness defense. The Plaintiffs contended that without the expert reports, the Defendant has failed to provide any evidence of the scope and content of the prior art or any evidence that the patent claims are invalid as obvious. The Court disagreed, noting that “[a]lthough expert testimony is often a useful aid in considering the issue of invalidity, such testimony is not requisite to a finding of obviousness.” Because the Defendant pointed to other sources in support of its defense, such as fact witnesses that were prepared to testify regarding a prior art system, the Court concluded that a genuine issue of material fact existed on the question of obviousness and denied the Plaintiffs’ Motion for Summary Judgment.
Judge Story granted the Plaintiffs’ Motion to Strike Portions of the Defendant’s Rebuttal Expert Reports because the reports contained new opinions on the obviousness of the patents-in-suit. Specifically, the Court found that the initial report of each expert stated that the patents-in-suit were invalid as obvious but did not provide any reason or basis for this conclusion; it was not until the experts submitted their rebuttal expert reports that they provided a substantive explanation and basis for their opinions on obviousness. Because the Plaintiffs would suffer prejudice as a result of the untimely disclosure of the opinions and because the Defendant did not offer a justification for failing to include the opinions in the initial reports, the Court granted, pursuant to Federal Rule of Civil Procedure 37(c)(1), the Plaintiffs’ Motion to Strike all portions of the rebuttal expert reports relating to obviousness and to exclude at trial all testimony relating thereto.
The Court next addressed the Plaintiffs’ Motion for Summary Judgment, wherein the Plaintiffs argued that because the new opinions presented in the Defendant’s expert reports were stricken, Defendant failed to carry its burden of proof on its obviousness defense. The Plaintiffs contended that without the expert reports, the Defendant has failed to provide any evidence of the scope and content of the prior art or any evidence that the patent claims are invalid as obvious. The Court disagreed, noting that “[a]lthough expert testimony is often a useful aid in considering the issue of invalidity, such testimony is not requisite to a finding of obviousness.” Because the Defendant pointed to other sources in support of its defense, such as fact witnesses that were prepared to testify regarding a prior art system, the Court concluded that a genuine issue of material fact existed on the question of obviousness and denied the Plaintiffs’ Motion for Summary Judgment.
New Northern District of Georgia Patent Cases
- Feb. 26, 2008: Wisefame International Ltd. and IFM International Ltd. v. FKA Distributing Co. d/b/a/ Homedics-USA, Inc., No. 1:08-cv-00641 (N.D. Ga.) (Duffey, J.) – Correction of Inventorship
- Feb. 28, 2008: PBR, Inc. d/b/a Skaps Indus. v. Advanced Geotech Systems, LLC and Tenax Corp., No. 2:08-cv-00041 (N.D. Ga.) (Story, J.) – Declaratory Judgment of Non-Infringement and Invalidity
- Feb. 29, 2008: CCH Associates, LLC, Cardiovascular Ventures, Inc. and Cates v. Datascope Corp., No. 1:08-cv-00699 (N.D. Ga.) (Batten, J.) – Patent Infringement
- Mar. 4, 2008: Sikes Cookers & Grill, Inc. v. Vidalia Outdoor Products, Inc., Carefree Pools & Spa, Inc., Carpets of Dalton, Inc., Cookouts, Inc., Country Fireside, Covington Hearth and Home, Inc., CSRA Fireplace, LLC, Cumberland Home & Hearth, Ellis Meat Market, Dollar Farm Products Co., Inc., Fine's Hearth & Patio, Howard Lumber and Building Supply, Kash Gas Company, LSEM Corp. d/b/a Fireplaces and More, Metro Buck Stove, Inc. a/k/a Metro House of Fire, Southern Grills Outdoor Products, Inc., Stonework Design Center, Inc., Sunset Pools, Inc. a/k/a Sunset Pools and Construction, The Vidalia Grill Factory, No. 1:08-cv-00750 (N.D. Ga.) (Forrester, J.) – Patent Infringement
- Mar. 13, 2008: Global Resources International Inc. v. International Technidyne Corporation , No. 1:08-cv-01029 (N.D. Ga.) (Evans, J.) – Declaratory Judgment of Non-Infringement and Invalidity
- Mar. 25, 2008: Georgia-Pacific Consumer Products LP v. The Clorox Co. and The Armor All/STP Products Co., No. 1:08-cv-01176 (N.D. Ga.) (Camp, J.) – Patent Infringement
- Mar. 27, 2008: American Panel Corporation v. Huh and Vertex LCD, Inc., No. 1:08-cv-01241 (N.D. Ga.) (Carnes, J.) – Patent Infringement
- Mar. 28, 2008: Barco Federal Systems, LLC and Barco NV v. Aydin Displays Inc., No. 1:08-cv-01252 (N.D. Ga.) (Carnes, J.) – Patent Infringement
- Mar. 28, 2008: Ingenico Inc. v. SPA Syspatronic AG , No. 1:08-cv-01255 (N.D. Ga.) (Duffey, J.) – Declaratory Judgment of Non-Infringement and Invalidity
- Apr. 2, 2008: PictureU.com, Inc. v. Picture Marketing, Inc. and Tonini , No. 1:08-cv-01295 (N.D. Ga.) (Batten, J.) – Declaratory Judgment of Non-Infringement and Invalidity
- Apr. 4, 2008: Tensar International Corporation v. Anchor Wall Systems, Inc., No. 1:08-cv-01333 (N.D. Ga.) (Forrester, J.) – Declaratory Judgment of Non-Infringement and Invalidity
- Apr. 9, 2008: Catch Curve, Inc. v. International Telecom, Ltd., No. 1:08-cv-01380 (N.D. Ga.) (Cooper, J.) – Patent Infringement
Wednesday, April 16, 2008
Judgment for Patentee Following Bench Trial

Kleen-Tex Industries, Inc. v. Mountville Mills, Inc., No. 3:03-cv-093 (N.D. Ga. Mar. 3, 2008) (Camp, J.)
Following a bench trial, Judge Camp issued an Order finding the patent-in-suit (which related to a process for making a machine washable track control floor mat) valid, enforceable, and infringed. In particular, the Court held that although the claimed invention comprised a combination of known elements, the unpredictable results and other secondary considerations yielded by the claimed combination precluded a finding of obviousness. In addition, the Court found that certain conduct and litigation tactics of the Defendant rendered the case “exceptional” and awarded the Plaintiff 100% of its attorneys’ fees.
Following a bench trial, Judge Camp issued an Order finding the patent-in-suit (which related to a process for making a machine washable track control floor mat) valid, enforceable, and infringed. In particular, the Court held that although the claimed invention comprised a combination of known elements, the unpredictable results and other secondary considerations yielded by the claimed combination precluded a finding of obviousness. In addition, the Court found that certain conduct and litigation tactics of the Defendant rendered the case “exceptional” and awarded the Plaintiff 100% of its attorneys’ fees.
The Court began its analysis by addressing a claim construction issue raised by the parties’ invalidity arguments that was not addressed in the Court’s Markman Order. Specifically, the asserted claims recited that a step of bonding the tufts of yarn to a rubber substrate was “such that the mat is machine washable without substantial degradation of tufts.” Based on a review of the specification and prosecution history, the Court held that this phrase did not constitute a claim limitation, but instead was an inherent result of the twisting, tufting, and bonding steps recited in the claims. As a result, the Defendant’s arguments that this phrase rendered the claims invalid for lack of enablement and indefiniteness were deemed to be moot.
The Court next addressed the issue of willful infringement under the standards articulated by the Federal Circuit in In re Seagate. The Defendant conceded infringement at trial and the Court found that such infringement was intentional. Nevertheless, because the Defendant had a credible invalidity defense sufficient to take the case to trial, the Court held that there was not enough evidence to support a finding of willful infringement.
On the question of the patent-in-suit’s validity, the Court held that even if the Defendant could show that a motivation existed to combine the prior art references or establish a prima facie case of obviousness, “the overwhelming objective evidence of nonobviousness would refute that argument.” In particular, the Court found that the Plaintiff presented the following strong and credible evidence of nonobviousness: a long felt but unsolved need for a washable wipe-and-scrape mat, widespread attempts and failures to achieve such a mat, unexpected results from certain steps recited in the claims, and substantial commercial success by the Plaintiff. After remarking that “[t]he hallmark of the Supreme Court’s opinion in KSR is predictability,” the Court concluded that based on the evidence, “the results obtained by [Plaintiff’s] combination of known elements were unpredictable.” Consequently, the Court held that the claimed invention was not obvious.
Lastly, the Court found the case to be “exceptional” under 35 U.S.C. § 285 and ordered the Defendant to pay the Plaintiff 100% of its attorneys’ fees. The Court based its finding on the following: (1) the Defendant did not take the Plaintiff’s infringement allegations seriously, but instead denied infringement based on irrelevant considerations without conducting an investigation into the scope of the claims; (2) the Defendant threatened to disrupt the Plaintiff’s economic interests if it maintained the lawsuit; (3) the Defendant “wasted a considerable amount of valuable judicial resources” by opposing the Plaintiff’s motions for summary judgment of infringement only to concede infringement at trial; and (4) the Defendant took no remedial action to lessen the impact of its infringement, such as introducing a non-infringing substitute product.
Motion for Leave to Amend Complaint Granted and Motion to Stay Proceedings Pending Reexamination Granted
Tomco2 Equipment Co. v. Southeastern Agri-Systems, Inc., No. 1:06-cv-2559 (N.D. Ga. Feb. 19, 2008) (Carnes, J.)
Judge Carnes granted the Plaintiff’s Motion for Leave to Amend its Complaint pursuant to Federal Rule of Civil Procedure 15(a) to add three new defendants. The Defendant objected to the Motion because the Plaintiff was aware of the new defendants (principals and a customer of the Defendant’s) prior to filing suit and arguably could have added the parties earlier in the litigation. The Court noted that the request to amend was made within the guidelines set by the parties’ discovery plan and was therefore timely, and that the Defendant did not assert any prejudice as a result of the Plaintiff’s delay. For these reasons, the Court granted the Plaintiff’s Motion for Leave to Amend.
The Court also granted the Defendant’s Motion to Stay the Proceedings pending an inter partes reexamination proceeding in the USPTO. The Defendant requested an inter partes reexam of one of the two patents-in-suit about one year after the instant action was filed. Shortly thereafter, the USPTO granted the Defendant’s request and preliminarily rejected all of the patent claims at issue. The Court decided to stay the proceedings pending the reexamination, because (1) a stay would not prejudice the parties, (2) a stay would simplify the issues for trial, and (3) although it was relatively late in discovery, because both parties were looking to extend discovery for the addition of the new defendants it was sufficiently early in the litigation to make a stay appropriate.
Judge Carnes granted the Plaintiff’s Motion for Leave to Amend its Complaint pursuant to Federal Rule of Civil Procedure 15(a) to add three new defendants. The Defendant objected to the Motion because the Plaintiff was aware of the new defendants (principals and a customer of the Defendant’s) prior to filing suit and arguably could have added the parties earlier in the litigation. The Court noted that the request to amend was made within the guidelines set by the parties’ discovery plan and was therefore timely, and that the Defendant did not assert any prejudice as a result of the Plaintiff’s delay. For these reasons, the Court granted the Plaintiff’s Motion for Leave to Amend.
The Court also granted the Defendant’s Motion to Stay the Proceedings pending an inter partes reexamination proceeding in the USPTO. The Defendant requested an inter partes reexam of one of the two patents-in-suit about one year after the instant action was filed. Shortly thereafter, the USPTO granted the Defendant’s request and preliminarily rejected all of the patent claims at issue. The Court decided to stay the proceedings pending the reexamination, because (1) a stay would not prejudice the parties, (2) a stay would simplify the issues for trial, and (3) although it was relatively late in discovery, because both parties were looking to extend discovery for the addition of the new defendants it was sufficiently early in the litigation to make a stay appropriate.
Order on Cross-Motions for Summary Judgment as to Validity of Patents-in-Suit

Furukawa Electric North America, Inc. v. Sterlite Optical Technologies, et al., No. 1:02-cv-2149 (N.D. Ga., Jan. 30, 2008) (Pannell, J.)
Judge Pannell ruled on the Defendants’ and the Plaintiff’s Cross-Motions for Summary Judgment regarding the validity of three patents-in-suit, the ‘816 patent, the ‘047 patent, and the ‘881 patent, which relate to certain processes for making optical fibers and the fibers formed according to such techniques. As described below, the Court addressed issues such as obviousness-type double patenting, enablement of prior art references, the written description requirement, and obviousness in light of the Supreme Court's decision in KSR Int'l v. Teleflex.
The ‘816 Patent:
The Court found that the asserted claims of the ‘816 patent were invalid under the doctrine of obviousness-type double patenting over claims in the ‘027 patent, one of a series of continuation patents to which the ‘816 claimed priority. In particular, the Court compared each asserted claim in the ‘816 patent with a claim in the ‘027 patent and determined that the differences were insufficient to render the claims of the ‘816 patentably distinct. Accordingly, the Court granted the Defendants’ Motion for Summary Judgment of invalidity and denied the Plaintiff’s Cross Motion for Summary Judgment of validity.
The ‘047 Patent:
The Defendants contended that the ‘047 patent was invalid as anticipated and/or obvious in view of (1) an international patent application, the ‘232 application, and (2) a prior art patent, the ‘273 patent. The Court found that the ‘232 application did not explicitly disclose each and every limitation of the method claimed in the ‘047 patent, and rejected the defendants’ argument that certain limitations were inherently disclosed. The Court therefore granted Plaintiff’s Motion for Summary Judgment that the ‘047 patent is not invalid as anticipated by the ‘232 application. As to the ‘273 patent, the Court found genuine issues of material fact as to whether the ‘273 patent was enabling in certain respects and qualified as prior art against the '047 patent, and therefore denied both Motions for Summary Judgment on the issue of anticipation.
The Court also identified genuine issues of material fact with respect to the obviousness of the ‘047 patent. Specifically, the Court noted the disparate testimony as to whether one skilled in the art would have considered it practical to combine the teachings of the prior art references and whether one skilled in the art would have had a reasonable expectation of success in doing so. Consequently, the Court denied both the Plaintiff’s and the Defendants’ Motion for Summary Judgment as to the validity of the ‘047 patent based on obviousness.
The ‘881 Patent:
The Defendants’ sought a determination that the ‘881 patent was invalid for failing to satisfy the written description requirement and for obviousness. Because the Court found that the parties raised genuine issues of material fact as to whether the applicants were in possession of the claimed invention with respect to certain distance parameters recited in the asserted claims, the Court denied the respective Motions for Summary Judgment based on the written description requirement. As for obviousness of the ‘881 patent, the Court did not accept the Defendants’ argument that the claimed distance parameters would have been obvious to one of skill in the art, finding that the Defendants’ evidence in support was derived through impermissible hindsight. The Plaintiff’s Motion for Summary Judgment of validity of the ‘881 patent based on obviousness was therefore granted.
Judge Pannell ruled on the Defendants’ and the Plaintiff’s Cross-Motions for Summary Judgment regarding the validity of three patents-in-suit, the ‘816 patent, the ‘047 patent, and the ‘881 patent, which relate to certain processes for making optical fibers and the fibers formed according to such techniques. As described below, the Court addressed issues such as obviousness-type double patenting, enablement of prior art references, the written description requirement, and obviousness in light of the Supreme Court's decision in KSR Int'l v. Teleflex.
The ‘816 Patent:
The Court found that the asserted claims of the ‘816 patent were invalid under the doctrine of obviousness-type double patenting over claims in the ‘027 patent, one of a series of continuation patents to which the ‘816 claimed priority. In particular, the Court compared each asserted claim in the ‘816 patent with a claim in the ‘027 patent and determined that the differences were insufficient to render the claims of the ‘816 patentably distinct. Accordingly, the Court granted the Defendants’ Motion for Summary Judgment of invalidity and denied the Plaintiff’s Cross Motion for Summary Judgment of validity.
The ‘047 Patent:
The Defendants contended that the ‘047 patent was invalid as anticipated and/or obvious in view of (1) an international patent application, the ‘232 application, and (2) a prior art patent, the ‘273 patent. The Court found that the ‘232 application did not explicitly disclose each and every limitation of the method claimed in the ‘047 patent, and rejected the defendants’ argument that certain limitations were inherently disclosed. The Court therefore granted Plaintiff’s Motion for Summary Judgment that the ‘047 patent is not invalid as anticipated by the ‘232 application. As to the ‘273 patent, the Court found genuine issues of material fact as to whether the ‘273 patent was enabling in certain respects and qualified as prior art against the '047 patent, and therefore denied both Motions for Summary Judgment on the issue of anticipation.
The Court also identified genuine issues of material fact with respect to the obviousness of the ‘047 patent. Specifically, the Court noted the disparate testimony as to whether one skilled in the art would have considered it practical to combine the teachings of the prior art references and whether one skilled in the art would have had a reasonable expectation of success in doing so. Consequently, the Court denied both the Plaintiff’s and the Defendants’ Motion for Summary Judgment as to the validity of the ‘047 patent based on obviousness.
The ‘881 Patent:
The Defendants’ sought a determination that the ‘881 patent was invalid for failing to satisfy the written description requirement and for obviousness. Because the Court found that the parties raised genuine issues of material fact as to whether the applicants were in possession of the claimed invention with respect to certain distance parameters recited in the asserted claims, the Court denied the respective Motions for Summary Judgment based on the written description requirement. As for obviousness of the ‘881 patent, the Court did not accept the Defendants’ argument that the claimed distance parameters would have been obvious to one of skill in the art, finding that the Defendants’ evidence in support was derived through impermissible hindsight. The Plaintiff’s Motion for Summary Judgment of validity of the ‘881 patent based on obviousness was therefore granted.
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