Patents & Inventions Law & Lawyers

A patent is a right granted for any device, substance, method or process which is new, inventive and useful.

A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. This is not automatic-you must apply for a patent to obtain exclusive rights to exploit your invention.

There are two types of patents in Australia;

  • a standard patent gives long-term protection and control over an invention for up to 20 years.
  • an innovation patent is a relatively fast, inexpensive protection option, lasting a maximum of 8 years. The innovation patent replaced the petty patent on 24 May 2001.

Patents give effective protection if you have invented new technology that will lead to a product, composition or process with significant long-term commercial gain.

In return, patent applicants must share their know-how by providing a full description of how their invention works. This information becomes public and can provide the basis for further research by others.

Australian patents are administered by the Patent Office of IP Australia, a Federal Government Organisation.

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See also our Intellectual Property Law & Lawyers Section by clicking here.

An outline of the patent system

Historical origins

Patents are the oldest form of intellectual property, but their historical origins are obscure. In England, in the fifteenth century, the monarch began to grant monopoly rights as a means of attracting new industries from continental Europe, but these were more in the nature of a royal licence to avoid the effects of guild regulations than a true grant of exclusive rights to carry on an activity.[4] It was only in the following century that patents began to be granted in respect of inventions, and the patent system was put on a statutory basis for the first time in the seventeenth century with the passage of the Statute of Monopolies 1623 (Statute of Monopolies). Despite its age, this English statute continues to have relevance to Australian patent law today.

As it first developed, the English patent was a slow, costly and cumbersome procedure for encouraging and protecting inventions. The procedure was described in derisory terms by Charles Dickens in a short story published in 1850, ‘A Poor Man’s Tale of a Patent’. Over the years there were many piecemeal reforms to the system, but it was the Patents Act 1883 (UK) that provided the basis of modern patent law.

Patent legislation in Australia has always been closely modelled on that of the United Kingdom. Prior to Federation, each of the Australian colonies had its own legislation based on the Patents Act 1883 (UK). In 1901, the Australian Constitution gave the newly established Commonwealth Parliament power to make laws with respect to ‘copyrights, patents of invention and designs, and trade marks’.In 1903, this power was exercised with the enactment of the Patents Act 1903 (Cth).

As in the United Kingdom, there have been many amendments to Australian patent legislation in response to formal commissions of inquiry. The 1903 Act was re-enacted with substantial changes in 1952 and again in 1990. The Patents Act 1990 (Cth) (Patents Act) provides the current legislative framework governing the grant and administration of patents in Australia.

See also our Intellectual Property Law & Lawyers Section by clicking here.

Functions of patents

Patent law has been described as a ‘stressful if fertile union’ between certain contradictory principles: self-interest and the common good; monopoly rights and liberty; the ownership of ideas and public disclosure of knowledge. This union results from the dual goals of patent law—to benefit society by encouraging the provision of new and useful goods, and to encourage and reward inventiveness.

These goals are achieved by providing incentives for innovation and knowledge sharing by granting monopoly rights, for a limited period, to exploit a new product or process. Monopoly rights encourage investment by providing an opportunity to recoup the financial outlays involved in developing an invention. They also reward the inventor by allowing a return to be made on the time and resources expended on research and development.

The limited duration of the monopoly means, however, that the patented invention eventually will be available for free and unrestricted use when the patent term expires: the compromise is thus ‘a way of securing future benefits for the common good’.In addition, patents promote knowledge sharing during the term of the patent by requiring the patent holder to place the details of the invention in the public domain. As one United States judge has stated:

The purpose of the patent system is not only to provide a financial incentive to create new knowledge and bring it to public benefit through new products; it also serves to add to the body of published scientific/technological knowledge. The requirement of disclosure of the details of patented inventions facilitates further knowledge and understanding of what was done by the patentee, and may lead to further technologic advance.

Exploitation of patents

A patent gives the inventor the right to stop others from exploiting the invention for a limited period. However, a patent does not grant an absolute right to exploit an invention in any way the inventor may choose. A patent holder may have to satisfy regulatory requirements in order to exploit the patented product or process; for example, a patented pharmaceutical compound may need approval under the Therapeutic Goods Act 1989 (Cth) before it can be marketed lawfully and sold as a treatment for a particular condition. Similarly, the use of a patented invention is subject to the general law; for example, the components required to manufacture a car may be the subject of many patents, but the car must still be used in accordance with motor traffic laws.

A patent holder is not obliged to exploit a patented invention, but the failure to do so may have implications for the patent holder’s rights. For example, the patent could be subjected to compulsory licensing, or it could be used or acquired by the Crown under relevant provisions of the Patents Act. A patent holder may authorise others to exploit the patent by granting a licence on agreed terms. This may be on an exclusive, sole or non-exclusive basis, and almost certainly will require the licensee to pay royalties or other fees to the patent holder.

It is important to note that while patents are a form of intellectual property, they do not confer ownership in the physical material described in the claims for a patented product or process. Thus, a patent over a genetic sequence does not amount to ownership of the sequence itself.

Criteria for patentability

Although there is considerable variance in detail from one jurisdiction to another, most countries apply similar tests for patentability: an invention must be novel (that is, new), must involve an inventive step, and must have a useful application. In addition, the description of an invention in a patent application must be sufficient to allow a person skilled in the relevant art to create the invention independently.

Briefly, the Patents Act provides that an invention will be patentable if it is a ‘manner of manufacture’ within the meaning of s 6 of the Statute of Monopolies; is novel; involves an inventive or innovative step; is useful; and has not been used secretly within Australia prior to filing the patent application.

Certain inventions are expressly excluded from patentability. Australia has relatively few express exclusions, but they include inventions involving ‘human beings, and the biological processes for their generation’, as well as inventions the use of which would be contrary to law. Other jurisdictions recognise a broader range of exceptions, including inventions involving diagnostic, therapeutic and surgical methods of treatment of humans and animals; and inventions whose commercial exploitation would be contrary to morality or public order.

Australian Patent Law

Australian patent law operates within an international legal framework, which shapes certain procedural and substantive aspects of the patent system.

Australia has enacted legislation that regulates patenting practices within the Australian ‘patent area’ with respect to inventions involving any type of technology. The procedures for obtaining a gene patent in Australia are, broadly speaking, the same as those that apply to patents claiming any other type of technology.

Patents Legislation

Section 51(xviii) of the Australian Constitution grants the Commonwealth Parliament power to make laws with respect to ‘copyrights, patents of inventions and designs, and trade marks’. Pursuant to this power, the Parliament has enacted the Patents Act 1990 (Cth) (Patents Act) and the Patents Regulations 1991 (Cth) (Patents Regulations).

Patent protection in most countries is available for inventions that are new, involve an inventive step, and have a useful application.

In Australia, the Patents Act provides that an invention is patentable if it:

  • is a ‘manner of manufacture’—that is, the invention is appropriate subject matter for patent protection;
  • is novel;
  • involves an inventive or innovative step;
  • is useful; and
  • has not been used secretly within Australia before the priority date of the patent application.


Administration

The Australian patent system is administered by the Patent Office of IP Australia. IP Australia is a division of the Department of Industry, Tourism and Resources, but operates independently and reports directly to the Minister.

Under the Patents Act, the Commissioner of Patents has the power to grant a patent upon an application being filed with and examined by the Patent Office. IP Australia has developed the Patent Manual of Practice and Procedure (the Manual) to assist Australian patent examiners in applying the Patents Act and Patents Regulations.

State and federal courts and the Administrative Appeals Tribunal (AAT) also have a role in administering the patent system. Decisions of the Commissioner of Patents may be subject to review by the AAT or the Federal Court of Australia. The AAT may undertake merits review of the Commissioner’s decisions with respect to certain procedural matters prescribed by the Patents Act. A direct application may be made to the Federal Court for judicial review in relation to other decisions of the Commissioner; essentially those related to the grant of patents or matters closely allied to the grant (for example, amendments to patent specifications and revocations).

The Federal Court and state and territory Supreme Courts share original (first instance) jurisdiction over matters relating to the exploitation and enforcement of patent rights, including challenges to patent rights, infringement proceedings and compulsory licences. The AAT has no jurisdiction in relation to such issues.

Types of patents

Australian patent law recognises two principal types of patents:

(1) standard patents and

(2) innovation patents.

An applicant for a patent may elect to obtain protection for an invention under either system. Table A below outlines the key features of, and the difference in the scope of protection conferred by, standard and innovation patents.

Standard patents

A standard patent is the basic form of patent protection for inventions under Australian law and is consistent with the minimum requirements for patent protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement). Unless otherwise indicated, references to an Australian patent and discussions of patent rights in this Report relate only to the standard patent system.

Innovation patents

The innovation patent is a ‘second tier’ of protection, which was introduced in 2001 to replace the petty patent system.  Innovation patents are intended to provide protection for ‘lower level’ inventions for which standard patent protection is not available and which are not covered by the designs legislation.

Patents of addition

The Patents Act also provides for the grant of a ‘patent of addition’ for an improvement in, or modification to, an invention claimed in a standard patent that has already been granted.[21] A patent of addition may be obtained only by the owner of the earlier patent, or a person authorised by the owner. The term of a patent of addition expires at the same time as that of the patent on the main invention.

Table A - Features of standard patents and innovation patents

Features

Standard patent

Innovation patent

 

Term

20 years (s 67)

Extension of up to 5 years   available for certain pharmaceutical patents (ss 70–79A)

8 years (s 68)

Number of claims

No   limit

Maximum of 5 claims   (s 40(2)(c))

 

Inventions excluded from   patentability, or excludable at the discretion of the Commissioner of Patents

Human beings and the biological   processes for their generation (s 18(2))

Inventions whose use would be   contrary to law (s 50(1)(a))

Inventions capable of application   as a food or medicine that are a mere admixture of known ingredients   (s 50(1)(b))

Same as for a standard patent, and

Plants and animals and the   biological processes for the generation of plants and animals (s 18(3),   (4))

Level of invention required

‘Inventive step’ over the prior   art (s 7(2)–(3), sch 1)

‘Innovative step’ over the prior   art (s 7(4)–(6), sch 1)

Review by Patent Office prior to   grant

Substantive review for compliance   with the requirements for patentability (ss 44–49)

Formalities check only; no   substantive review unless requested (ss 52, 120(1A))

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

Procedure for grant of a patent

Patent rights do not arise automatically. A patent can be obtained only by following the procedure set out in the Patents Act and Patents Regulations. An understanding of the procedure for obtaining a patent is important to understanding Australian patent law generally. The steps in obtaining an Australian patent are described below.

Filing an application

For a patent to be granted, an eligible person must file an application in the form prescribed by the Patent Office. Eligible persons are the inventor of the invention claimed in the application, or a person to whom the inventor has assigned his or her rights in the invention. A patent application must include a specification of the invention, which contains instructions adequate to enable a skilled person in the relevant area of technology to produce or perform the invention. The specification must also indicate the ‘claims’ that define the invention; that is, the scope of protection that the applicant is seeking.

Australian patent law recognises two types of patent applications—provisional and complete. Provisional and complete applications may be filed to obtain either a standard patent or an innovation patent.

A provisional application need only contain a description of the invention. Often, an inventor files a provisional application before all the details of an invention are known. The applicant then has 12 months to file a complete application.

A complete application must contain a full description of the invention, together with claims, and an abstract summarising the invention being disclosed. A complete application may be based on one or more provisional applications, and only those claims that are ‘fairly based’ on the relevant provisional application will be entitled to the priority date of the provisional application.

The ‘priority date’ of a patent claim is important in determining whether the requirements for patentability of an invention have been met. The requirements of novelty and inventive step are assessed against the prior art as it existed before the priority date. The priority date is typically the date on which a provisional application is filed in Australia, or the date on which an application is filed in another participating jurisdiction.

An applicant may also elect to file a complete application with the Patent Office under the Patent Cooperation Treaty (PCT). A PCT application designates all the jurisdictions that are parties to the PCT (including Australia), and secures an international priority date.

PCT applications that have entered the national phase (and will be processed as a complete application) are the main type of applications received by IP Australia. In 2002–03, 16,278 PCT applications selected Australia as one of the jurisdictions in which an applicant wished to obtain patent protection and entered the national phase in Australia. During the same period, 5,694 non-PCT applications for standard patents were filed with IP Australia.

Divisional applications

Each patent application may claim protection only for a single invention. If, following assessment of a patent application, a patent examiner finds that an applicant has claimed more than one invention in the application, the applicant may elect to file a ‘divisional application’—that is, a new application divided from the original or parent application. A divisional application allows an applicant to continue to benefit from the priority date of the original application.

Divisional applications may claim subject matter not contained in the original application so long as all the features of at least one of the claims were disclosed in the original application. There are no statutory limits on the number of divisional applications that may arise from a single complete application.

The Patents Act restricts the subject matter that may be claimed in a divisional application, depending on the time at which it is filed. However, a divisional application, once filed, is subject to the same procedural requirements, including examination, as any other complete patent application.

In its submissions to the Inquiry, IP Australia indicated that divisional applications are currently ‘open to abuse’. In practice, such abuse may occur only in a small number of cases. However, IP Australia suggested that patent applicants are able to make strategic use of divisional applications in order to delay determinations by the Patent Office as to the proper scope of patent claims, or as to whether a patent should be granted. IP Australia commented that the Patents Act allows an applicant to use a divisional application to obtain a de facto monopoly by extending the period within which to respond to an examiner’s adverse report. While this use of divisional applications may be legitimate in some circumstances, IP Australia suggested that it might be used tactically by an applicant in ‘newly developing areas of technology, such as genetics, where there is a question of [the] patentability of the subject matter’. Further, an applicant might avoid a decision in an opposition proceeding by withdrawing the opposed application and refiling it as a divisional application. To address these issues, IP Australia suggested that limitations could be imposed on the circumstances in which divisional applications are available.

However, the majority of submissions and consultations on this issue did not support imposing additional limitations either on the period within which a divisional application may be filed or on the subject matter that may be claimed in a divisional application. Submissions and consultations questioned whether divisional applications are being misused, and commented on the lack of evidence that divisional applications claiming genetic inventions present a special case.

Examination

Once an application has been filed with the Patent Office, a number of additional steps must be followed before a patent may be issued. An applicant must file a request that the Patent Office examine the application. Examination is not automatic and a request for examination must generally be filed within five years of the date of filing a complete specification. However, IP Australia’s standard practice is to direct applicants to file a request for examination, if no request has been received, at approximately 32 months from the priority date, although this period may vary according to IP Australia’s workload. An abbreviated examination may be requested if an Australian patent application is related to a patent that has already been granted by the patent office in a prescribed foreign jurisdiction.

The purpose of examination is to determine whether the invention meets the statutory requirements for patentability set out in the Patents Act. The Patent Office carries out searches of previously published documents—including scientific and patent literature (‘prior art information’)—to determine the prior art material relevant to the claimed invention. In addition, an applicant must disclose to the Patent Office the results of searches carried out by or on behalf of foreign patent offices in respect of the invention claimed in an Australian application, or in a corresponding patent application filed overseas. An examiner with expertise in the relevant area of technology then examines the application, taking into account the information contained in the results of these searches and any other prior art information.

Examination of a patent application typically involves an exchange between the examiner and the applicant about the appropriate scope of the specification and the claims in light of the relevant prior art. This process is known as ‘prosecution’ of a patent application.

Following receipt of a request for examination, an examiner will make an initial assessment of an application for a standard patent and either accept the application as filed or issue a ‘first report’ detailing the procedural and substantive grounds for objecting to the application. An applicant then has a period of 21 months to address the objections raised by the examiner. The examiner may issue further reports for each response by the applicant that does not satisfy the objections raised. An application for a standard patent will generally lapse if it is not in order for acceptance within 21 months after the date of the first report.

Acceptance, publication and sealing

The Commissioner of Patents must notify an applicant of the decision to accept or refuse a patent application, and must publish notice of the decision in the Official Journal of Patents (Official Journal). Formal refusal of an application is rare. More commonly, applications for standard patents lapse for failure to obtain acceptance within the prescribed 21 month period following a first report. The Official Journal also publishes notices of lapsed applications.
Publication of a notice of acceptance in the Official Journal should be distinguished from the publication of a complete specification for a standard patent. This typically occurs 18 months after the earliest priority date for the application, and is also advertised in the Official Journal. An application is confidential prior to publication of the complete specification, and only bibliographic details—such as the applicant’s name and title of the invention—are made available by the Patent Office.

A patent is granted when the Commissioner of Patents causes the patent to be sealed with the seal of the Patent Office. For a standard patent, this will occur within six months of the date of publication in the Official Journal of the notice of acceptance of the application, unless the application is opposed.

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

International legal instruments

Australia is a party to a number of international legal instruments relating to intellectual property. The major international instruments that affect patent laws and practices in Australia are:

  • Paris Convention for the Protection of Industrial Property 1883 (Paris Convention);
  • Patent Cooperation Treaty 1970 (PCT);
  • Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977 (Budapest Treaty); and
  • Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement).

Australian domestic law has given effect to significant provisions of each of these instruments.

See also our Intellectual Property Law & Lawyers Section by clicking here.

 

Links to further resources - Patents & Inventions Law & Lawyers

 

Patents & Inventions Law & Lawyers News

Rights of a patent holder

The Patents Act provides that the grant of a patent confers upon a patent holder the exclusive right to exploit, or to authorise another person to exploit, an invention during the patent term. ‘Exploit’ is defined in the Act to include:

(a) where the invention is a product—make, hire, sell or otherwise dispose of the product, offer to make, sell, hire, or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or

(b) where the invention is a method or process—use the method or process or do any act mentioned in (a) in respect of a product resulting from such use.

A patent does not, however, grant an absolute right to exploit an invention. A patent holder may have to satisfy other legal requirements in order to exploit the patented product or process. For example, a patented pharmaceutical compound may need to be approved under the Therapeutic Goods Act 1989 (Cth) before it can lawfully be marketed and sold as a treatment for a particular condition. In addition, a patent holder’s ability to exploit the invention may be subject to earlier patents not owned by the patent holder.

A patent holder may assign or license its patent rights to a third party. An assignment of a patent results in the transfer of all of the rights owned by the patent holder to a third party (the assignee).

A licence of a patent does not transfer ownership of any patent rights; rather, it establishes terms upon which a third party (the licensee) may exercise certain patent rights without such use constituting infringement.

A patent holder is not obliged to exploit an invention claimed in a patent at any time during the patent term, nor to license or assign its patent rights.

However, the failure to exploit the invention may encourage others to invoke the Crown use or compulsory licensing provisions in the Patents Act.

Patent rights remain subject to challenge even after the Commissioner of Patents accepts a patent application and after the patent is sealed. Section 20 of the Patents Act expressly states that nothing in the Act or in the PCT guarantees that a patent is valid.

Duration of patent protection

A standard patent generally has a term of 20 years, commencing on the date of the patent; an innovation patent has a term of 8 years. The term of a standard patent relating to ‘pharmaceutical substances’ may be extended in certain circumstances.

Art 33 of the TRIPS Agreement requires member States to provide patent protection for a term of not less than 20 years from the filing date. Article 27(1) requires member States to make patent protection available for all inventions, without discrimination as to the field of technology to which an invention relates. The Patents Act was amended in 1994 to extend the term of protection for a standard patent from 16 years to 20 years in order to bring Australian patent law into conformity with the TRIPS Agreement.

While the TRIPS Agreement provides some flexibility to member States in developing their own patent laws, the minimum term of patent protection is not subject to exceptions or qualifications. The TRIPS Agreement does, however, permit member States to require compliance with reasonable procedures and formalities as a condition of the acquisition or maintenance of intellectual property rights. Such procedures and formalities include the payment of fees for the filing and processing of a patent application, and for maintaining existing patent rights.

In addition, the Australia–United States Free Trade Agreement contains a provision that might affect the term of patent. Article 17.9.8 provides that, if there are unreasonable delays in a Party’s issuance of patents, that Party shall provide a means to adjust the term of the patent to compensate for the delay. If, in the future, there is evidence of unreasonable delay in the grant of Australian patents it may be necessary to amend the Patents Act to provide an extension of the patent term.

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

See also our Intellectual Property Law & Lawyers Section by clicking here.

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Tips to Stop Procrastinating and Finally Start Studying for the Patent Bar

Tue, 13 Aug 2019 14:02:46 +0000

As anyone who has taken the Patent Bar will tell you, passing this exam is not easy and never will be. Since you likely know this and if you’ve spent any time wading through the MPEP or study material, you also know the material is dense. It’s complexity is layers deep. So it’s very easy […]

The post Tips to Stop Procrastinating and Finally Start Studying for the Patent Bar appeared first on Patent Education Series.

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MPEP Q & A 178: What is the Difference Between Derivation and Priority of Invention?

Tue, 06 Aug 2019 14:02:43 +0000

Question: What is the difference between derivation and priority of invention? Answer: Derivation and priority of invention both focus on inventorship.  Derivation addresses originality, i.e., who invented the subject matter, whereas priority focuses on which party invented the subject matter first. Chapter Details: The answer to this question can be found in chapter 2100 of […]

The post MPEP Q & A 178: What is the Difference Between Derivation and Priority of Invention? appeared first on Patent Education Series.

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Skills to Help Manage Conflict as a Patent Practitioner

Tue, 30 Jul 2019 14:02:30 +0000

After working hard to get your new job as a patent attorney or attorney, the struggle doesn’t stop there. There is going to come a time in every employee’s life where they disagree with a co-worker. Top CEOs can’t escape it, neither can patent practitioners. When conflict arises with team members at any law firm, […]

The post Skills to Help Manage Conflict as a Patent Practitioner appeared first on Patent Education Series.

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MPEP Q & A 177: Revealing Information Relating to the Representation of a Client When the Client has Not Given Informed Consent

Tue, 23 Jul 2019 14:02:27 +0000

Question: Can a patent practitioner ever reveal information relating to the representation of a client when the client has not given informed consent? Answer: Yes, a practitioner may reveal information relating to the representation of a client to the extent the practitioner reasonably believes necessary: (1) To prevent reasonably certain death or substantial bodily harm; […]

The post MPEP Q & A 177: Revealing Information Relating to the Representation of a Client When the Client has Not Given Informed Consent appeared first on Patent Education Series.

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Patent Practitioner Salary Negotiation Tips

Tue, 16 Jul 2019 14:02:40 +0000

Here’s what you need to know to negotiate your next salary. If you’re new to a position: Negotiate with the right mindset You never have more leverage over negotiating your salary than when a firm first hires you. Use this to your advantage and use the opportunity to negotiate your salary. Often, new patent practitioners […]

The post Patent Practitioner Salary Negotiation Tips appeared first on Patent Education Series.

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MPEP Q & A 176: What Does a Petition Under 37 C.F.R. 1.78 Require?

Tue, 09 Jul 2019 14:02:11 +0000

Question: What does a petition under 37 C.F.R. 1.78 require? Answer: A petition under 37 CFR 1.78(b) requires: the reference required by 35 U.S.C. 119(e) and 37 CFR 1.78 to the prior-filed provisional application, which must be included in application data sheet (unless previously submitted in an application data sheet); the petition fee; and a […]

The post MPEP Q & A 176: What Does a Petition Under 37 C.F.R. 1.78 Require? appeared first on Patent Education Series.

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How to Increase Your Skills as a Writer

Tue, 02 Jul 2019 14:02:02 +0000

The most effective patent agents and patent attorneys appreciate how important great legal drafting is. Instead of gimmicks and tricks, they heed the fundamentals of legal writing. Legal preparation is about the recipient, not the drafter. That concept should be the starting point of all documents produced. The best advocates possess the talent of expressing […]

The post How to Increase Your Skills as a Writer appeared first on Patent Education Series.

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MPEP Q & A 175: Concepts Related to Tracking or Organizing Information

Tue, 25 Jun 2019 14:01:56 +0000

Question: List a concept related to tracking or organizing information. Answer: Examples of concepts related to tracking or organizing information include; i. classifying and storing digital images in an organized manner ii. collecting information, analyzing it, and displaying certain results of the collection and analysis iii. encoding and decoding image data – RecogniCorp, LLC v. Nintendo […]

The post MPEP Q & A 175: Concepts Related to Tracking or Organizing Information appeared first on Patent Education Series.

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Tips for Networking in Law School

Tue, 18 Jun 2019 14:02:21 +0000

As most law students know, it’s never too early to start networking and building connections as it can only help you as you advance in your career. Here are some tips to follow to make sure you get the most out of the opportunities presented to you in law school. Understand That It’s Not all […]

The post Tips for Networking in Law School appeared first on Patent Education Series.

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MPEP Q & A 174: Submission Types that May Not be Filed Via EFS Web.

Tue, 11 Jun 2019 14:01:41 +0000

Question: List 2 submission types that may not be filed via EFS Web. Answer: The following is a list of submission types that are not permitted to be filed using EFS-Web: Plant patent applications and follow-on documents associated with plant patent applications, other than third party preissuance submissions. Requests for Reexamination for plant patents and […]

The post MPEP Q & A 174: Submission Types that May Not be Filed Via EFS Web. appeared first on Patent Education Series.

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How to Connect with Your Patent Law Clients

Tue, 04 Jun 2019 14:02:52 +0000

As patent attorneys of all law firms know, it’s vitally important to get to know your client and their intellectual property professionally. In addition a strong personal connection goes a long way toward building a foundation of trust. A good attorney-client relationship is also a very effective way of turning your client into a repeat […]

The post How to Connect with Your Patent Law Clients appeared first on Patent Education Series.

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MPEP Q & A 173: What is a Complete Nonprovisional Application Comprised of?

Tue, 28 May 2019 14:01:26 +0000

Question: What is a complete nonprovisional application comprised of? Answer: A complete nonprovisional application comprises the following: a specification, including claims, drawings, an oath or declaration, the prescribed filing fee, search fee, examination fee and application size fee Chapter Details: The answer to this question can be found in chapter 600 of the MPEP. This […]

The post MPEP Q & A 173: What is a Complete Nonprovisional Application Comprised of? appeared first on Patent Education Series.

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Why Learn About Patents if You’re a Scientist?

Tue, 21 May 2019 14:02:45 +0000

Patent Law is a specialized legal niche that involves the protection of discoveries and new inventions. Because such inventions often involve medical breakthroughs or technologies that could propel us forward from an intellectual standpoint, only intellectuals with a scientific or engineering background are eligible to sit the patent bar exam. But why would you want […]

The post Why Learn About Patents if You’re a Scientist? appeared first on Patent Education Series.

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MPEP Q & A 172: Fees that Must be Paid Upon Filing a Request for Prioritized Examination

Tue, 14 May 2019 14:01:09 +0000

Question: Name two fees that must be paid upon filing a request for prioritized examination. Answer: Upon filing the request for prioritized examination, the following fees must be paid for the application: (1) the prioritized examination fee set forth in 37 CFR 1.17(c), (2) the processing fee set forth in 37 CFR 1.17(i)(1), (3) the […]

The post MPEP Q & A 172: Fees that Must be Paid Upon Filing a Request for Prioritized Examination appeared first on Patent Education Series.

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Dealing with Test Anxiety on the Patent Bar Exam

Tue, 07 May 2019 14:02:56 +0000

That fear that rips through your chest when you sit down to take an exam and the inner turmoil that is rattling around in your brain is called test anxiety. You start to sweat, your hands might start to shake, and your heart will feel as if it’s pounding against your chest. Test anxiety isn’t […]

The post Dealing with Test Anxiety on the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 171: Instances Where Publication or Issue Date is Later Than the Current Date

Tue, 30 Apr 2019 14:02:52 +0000

Question: When the publication or issue date is later than the current date (i.e., the date of the request), who will that information be given to? Answer: When the publication or issue date is later than the current date (i.e., the date of the request), such information may be given only to the applicant, an […]

The post MPEP Q & A 171: Instances Where Publication or Issue Date is Later Than the Current Date appeared first on Patent Education Series.

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7 Tips to Ace the Patent Bar Exam

Tue, 23 Apr 2019 14:02:49 +0000

Preparing to take the patent bar examination requires a healthy amount of dedication. As with any higher education test, developing good study habits and time management skills will really go a long way in passing the assessment. The patent bar exam is certainly no exception to this as it’s no walk in the park. Thankfully, […]

The post 7 Tips to Ace the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 170: Must a Claim be Identified to a Correct Category of Subject Matter?

Tue, 16 Apr 2019 14:02:12 +0000

Question: Must a claim be identified to a correct category of subject matter? Answer: It is not necessary to identify a single category into which a claim falls, so long as it is clear that the claim falls into at least one category. It is also not necessary to identify a “correct” category into which […]

The post MPEP Q & A 170: Must a Claim be Identified to a Correct Category of Subject Matter? appeared first on Patent Education Series.

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Patent Paralegal Resume Tips

Tue, 09 Apr 2019 14:02:46 +0000

Patent attorneys represent clients who are seeking patents and all legal matters that relate to obtaining a patent. Patent law is a great area of law for paralegals. It involves doing a lot of paperwork, preparing a lot of documentation, and performing a lot of research. If you’re a paralegal and are thinking about pursuing […]

The post Patent Paralegal Resume Tips appeared first on Patent Education Series.

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MPEP Q & A 169: Non-Limiting Claims Not Directed to Any of the Statutory Categories.

Tue, 02 Apr 2019 14:02:56 +0000

Question: Provide an example of a non-limiting claim that is not directed to any of the statutory categories. Answer: Examples of a non-limiting claim that is not directed to any of the statutory categories include; Products that do not have a physical or tangible form, such as information (often referred to as “data per se”) […]

The post MPEP Q & A 169: Non-Limiting Claims Not Directed to Any of the Statutory Categories. appeared first on Patent Education Series.

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Patent Agent and Patent Attorney Salary Guide

Tue, 26 Mar 2019 14:02:54 +0000

Have you ever wondered about the difference between a patent attorney and a patent agent? And how much you can make in this lucrative field under each title? With the rise in technology, patent attorneys and agents are in demand. It takes different steps to become a patent attorney versus becoming a patent agent so […]

The post Patent Agent and Patent Attorney Salary Guide appeared first on Patent Education Series.

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MPEP Q & A 168: Competent Representation to a Client

Tue, 19 Mar 2019 14:02:40 +0000

Question: A practitioner shall provide competent representation to a client. What does competent representation to a client entail? Answer: Competent representation requires the legal, scientific, and technical knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Chapter Details: The answer to this question can be found in the following supplement: Changes to Representation of […]

The post MPEP Q & A 168: Competent Representation to a Client appeared first on Patent Education Series.

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10 Things You May Not Have Realized Were Invented in the 1990’s

Tue, 12 Mar 2019 14:03:17 +0000

So much technology invented in the 1990’s was critical to the advancement of technological innovation that got us to where we are today. Smartphones, the digital camera, targeted Internet searches and the World Wide Web itself, emojis, even SnapChat and Instagram are all built on the ideas that came about in the 1990’s. Read on […]

The post 10 Things You May Not Have Realized Were Invented in the 1990’s appeared first on Patent Education Series.

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MPEP Q & A 167: When Must Applicants Timely File a Notice of Foreign Filing to Avoid Abandonment of a U.S. Application?

Tue, 05 Mar 2019 15:02:25 +0000

Question: Name one circumstance where applicants must timely file a notice of foreign filing to avoid abandonment of a U.S. application. Answer: Applicants must timely file a notice of foreign filing to avoid abandonment of a U.S. application if: applicant filed a nonpublication request in the U.S. application filed under 35 U.S.C. 111(a); applicant subsequently […]

The post MPEP Q & A 167: When Must Applicants Timely File a Notice of Foreign Filing to Avoid Abandonment of a U.S. Application? appeared first on Patent Education Series.

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How to Become a Patent Paralegal

Tue, 26 Feb 2019 15:02:16 +0000

A patent paralegal, also often referred to as an intellectual property paralegal, is a career path you can choose to take if you’re interested in patent law, trademarks, copyrighting, and trade secrets. Patent paralegals can’t legally perform law but they are a strong asset for patent lawyers and their clients. They’re beneficial in many of […]

The post How to Become a Patent Paralegal appeared first on Patent Education Series.

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MPEP Q & A 166: Further Written Opinion Established by the International Preliminary Examining Authority

Tue, 19 Feb 2019 15:02:11 +0000

Question: Name one item any further written opinion established by the International Preliminary Examining Authority should set forth. Answer: Any further written opinion established by the International Preliminary Examining Authority should set forth, as applicable: (A) Any defects in the international application concerning subject matter which is not required to be examined or which is […]

The post MPEP Q & A 166: Further Written Opinion Established by the International Preliminary Examining Authority appeared first on Patent Education Series.

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Getting Motivated: The Best Way to Study for the Patent Bar Exam

Tue, 12 Feb 2019 15:02:30 +0000

The patent bar exam is the biggest step in your journey to becoming a patent attorney or patent agent. In many cases it will also be the last step you need to take to begin your career. Before taking the patent bar examination, you want to be prepared and brimming to the top with all […]

The post Getting Motivated: The Best Way to Study for the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 165: When Patent Owner Fails to File Timely Response to Any Office Action Prior to an Action Closing Prosecution (ACP)

Tue, 05 Feb 2019 15:02:57 +0000

Question: List one consequence for when the patent owner fails to file a timely response to any Office action prior to an Action Closing Prosecution (ACP). Answer: If the patent owner fails to file a timely response to any Office action prior to an Action Closing Prosecution (ACP), it will result in the following consequences: […]

The post MPEP Q & A 165: When Patent Owner Fails to File Timely Response to Any Office Action Prior to an Action Closing Prosecution (ACP) appeared first on Patent Education Series.

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What You Need to Know About the Fundamentals of Engineering Exam

Tue, 29 Jan 2019 15:02:05 +0000

While this site focuses on the Patent Bar exam, there are many other professional exams that may pertain to you and advance your career. As an example, you may be eligible to take the Fundamentals of Engineering Examination or FE exam. If you’re not interested in a career in patent law, but want to continue on […]

The post What You Need to Know About the Fundamentals of Engineering Exam appeared first on Patent Education Series.

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MPEP Q & A 164: Computer-Implemented Methods and the Tax Strategy Provision

Tue, 22 Jan 2019 15:02:40 +0000

Question: Would a computer-implemented method that is deemed novel and non-obvious be effected by the tax strategy provision even if used for a tax purpose? Answer: A computer-implemented method that is deemed novel and non-obvious would not be affected by this provision even if used for a tax purpose. For example, a novel and non-obvious […]

The post MPEP Q & A 164: Computer-Implemented Methods and the Tax Strategy Provision appeared first on Patent Education Series.

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3 Tips for Finding a Summer Job at a Patent Law Firm

Tue, 15 Jan 2019 15:02:43 +0000

As most first-year law students know, getting your foot in the door at a patent law firm and looking at your first real intellectual property job can feel like a daunting task. When you’re first starting out on a summer associate program, finding a job in any field can be a hard process. You have […]

The post 3 Tips for Finding a Summer Job at a Patent Law Firm appeared first on Patent Education Series.

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MPEP Q & A 163: What are the Most Common Basis for Filing a Reissue Application?

Tue, 08 Jan 2019 15:02:21 +0000

Question: What are the most common basis for filing a reissue application? Answer: The most common bases for filing a reissue application are: the claims are too narrow or too broad; the disclosure contains inaccuracies; applicant failed to or incorrectly claimed foreign priority; and applicant failed to make reference to or incorrectly made reference to […]

The post MPEP Q & A 163: What are the Most Common Basis for Filing a Reissue Application? appeared first on Patent Education Series.

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MPEP Q & A 162: When is a 35 U.S.C. 102 Rejection with Multiple References Proper?

Fri, 21 Dec 2018 15:01:00 +0000

Question: When is a 35 U.S.C. 102 rejection with multiple references proper? Answer: A 35 U.S.C. 102 rejection over multiple references has been held to be proper when the extra references are cited to: Prove the primary reference contains an “enabled disclosure;” Explain the meaning of a term used in the primary reference; or Show […]

The post MPEP Q & A 162: When is a 35 U.S.C. 102 Rejection with Multiple References Proper? appeared first on Patent Education Series.

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These news come from Patent Education Series.

Final USMCA Text is a Missed Opportunity for Innovation

Thu, 12 Dec 2019 17:24:31 +0000

Earlier this week, Speaker of the House of Representatives Nancy Pelosi (D-CA) reached an agreement with President Donald Trump on passage of the United States-Mexico-Canada Agreement (USMCA), which if passed into law would replace the defunct and much maligned North American Free Trade Agreement (NAFTA). Not everyone is happy about the latest version of the USMCA agreed upon by the White House and House Democrats, including the U.S. Chamber of Commerce, which continues to support the overall...

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Recent USPTO Update Provides Blueprint for PTAB Patent Challenge Process

Thu, 12 Dec 2019 12:15:56 +0000

Since the passing of the America Invents Act (AIA) and the implementation of the inter partes review (IPR) process, IPR has become a popular and important avenue for companies and individuals to challenge the validity of a patent in an administrative proceeding through the U.S. Patent and Trademark Office (USPTO). In the past five years, patent owners and challengers alike have presented new and sometimes novel challenges to the way the Patent Trial and Appeal Board (PTAB), comprised of a panel...

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Keller and Heckman is Seeking a Food & Drug Associate Attorney

Thu, 12 Dec 2019 10:15:56 +0000

  Keller and Heckman LLP, an international law firm, is seeking a talented junior level associate attorney with up to 3 years of experience to join its growing FDA regulatory practice in its Washington, D.C. Office. We offer an excellent benefit package, bonus plan, and salary commensurate with experience. Duties to Include: Successful associates will […]

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SCOTUS Holds in NantKwest that USPTO Cannot Be Reimbursed for Salaries of Legal Personnel

Wed, 11 Dec 2019 22:15:12 +0000

The Supreme Court ruled in Peter v. NantKwest today that the U.S. Patent and Trademark Office (USPTO) cannot recover the salaries of USPTO attorneys and paralegals who work on civil actions against the USPTO Director in the Eastern District of Virginia. The Court held that the language of Section 145 of the Patent Act, which says that applicants must pay all the expenses of the proceedings for a civil action, “does not overcome the American Rule’s presumption against fee shifting.” The USPTO...

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Patents Have Entered the Upside Down: Looking Back on the 2019 U.S. Patent Market

Wed, 11 Dec 2019 20:15:48 +0000

Ask ten professionals for their attitude on the current state of patents in 2019, and you’ll receive ten distinctly different opinions ranging anywhere from the incredibly negative patents-are-dying attitude to the overly optimistic everything-is-fine-here outlook. The consternation of it all is that each of those ten professionals would be absolutely right in their estimations, and entirely wrong as well. And that’s the patent world in which we’ve found ourselves during the entirety of...

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Industry Experts Weigh in on Thryv v. Click-to-Call Oral Argument

Wed, 11 Dec 2019 12:15:29 +0000

The Supreme Court heard oral arguments on Monday in Thryv, Inc. v. Click-to-Call Technologies. The case asks the nation’s highest court whether 35 U.S.C. § 314(d)—which states that decisions to institute inter partes review (IPR) proceedings shall not be appealable—permits appeals of PTAB institution decisions based upon 35 U.S.C. § 315(b)— which states that IPRs won’t be instituted if the patent owner served the petitioner with a complaint for patent infringement more than one year prior to...

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Agreement on USMCA Strikes Expanded Protections for Biologics

Tue, 10 Dec 2019 19:32:11 +0000

President Donald Trump and House Speaker Nancy Pelosi have reportedly reached an agreement on the much debated United States-Mexico-Canada Agreement (USMCA), which would, if ratified, replace the defunct and maligned North American Free Trade Agreement (NAFTA). The agreement, announced by Speaker Pelosi on Tuesday morning, comes as the House prepares to impeach President Trump, which makes it somewhat surreal, given that House Democrats seem poised to deliver President Trump a victory. During...

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Federal Circuit Upholds District of Delaware’s Summary Judgment Ruling for Donghee

Tue, 10 Dec 2019 17:51:24 +0000

Last week, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential public opinion affirming the District Court for the District of Delaware’s grant of summary judgment of noninfringement for Donghee America, Inc. and Donghee Alabama, LLC (Donghee). The CAFC held that the summary judgment ruling was consistent with the claim construction and supported by the facts on the record. A sealed opinion was delivered on November 21. The plaintiff, Plastic Omnium Advanced...

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This Week in Washington IP: Copyright Office Oversight, Medicare Drug Price Negotiation Bill and the Impacts of AI on Consumers and Labor Markets

Tue, 10 Dec 2019 12:15:20 +0000

This week in IP news in Washington, D.C., both the House of Representatives and the Senate have several hearings regarding tech and innovation topics before either house of Congress enters its December recess next week. In the House, hearings look to address challenges in critical raw earth materials, federal IT acquisition programs and a bill that would affect how pharmaceutical patent owners can negotiate drug prices with the Medicare and Medicaid programs. In the Senate, the Senate IP...

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Athena Tells SCOTUS That Mayo’s Key Argument “Collapses” Under Federal Circuit Split

Mon, 09 Dec 2019 21:26:32 +0000

Athena Diagnostics today filed its reply brief to Mayo Collaborative Services at the Supreme Court in the closely-watched petition asking the High Court to clarify U.S. patent eligibility law. The reply reiterates the points made in Athena’s petition for certiorari and dismisses Mayo’s argument in November that “any further action regarding the patentability of medical diagnostic claims such as Athena’s that employ conventional, known techniques should and does rest with Congress.” The reply...

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Final Briefs Filed with SCOTUS in Romag Fasteners Case on Trademark Infringement Damages

Mon, 09 Dec 2019 19:15:06 +0000

On November 27, briefing concluded at the Supreme Court with the filing of Fossil’s respondent’s brief in Romag Fasteners, Inc., v. Fossil, Inc., et al. The final briefing sets the stage for the Court to hear the case on January 14, 2020. The Court will hopefully resolve a current Circuit split on the availability of disgorgement of profits as damages for trademark infringement. Currently, the First, Second, Eighth, Ninth, Tenth and D.C. Circuits all require willful infringement before allowing...

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Solicitor General Recommends Against Cert in Vanda, Perhaps Bolstering Athena’s Bid for Review

Mon, 09 Dec 2019 15:00:06 +0000

The United States Office of the Solicitor General has filed its brief in response to the Supreme Court’s March request for views in Hikma Pharmaceuticals v. Vanda Pharmaceuticals. The December 6 brief says that the Federal Circuit correctly held the relevant claims of Vanda’s patent-in-suit eligible, and that the case “is not an optimal vehicle for bringing greater clarity” on the topic of Section 101 law since the CAFC arrived at the correct result. Instead, the High Court should grant...

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If so then you could be Eligible to claim compensation against the nominal defendant.

It is important to seek legal advice immediately. - please complete your free legal enquiry form to be put in contact with a lawyer who can help you with your claim.

If you have been injured in a Road related accident either as a driver, passenger, pedestrian, motorcyclist or cyclist, you could be entitled to claim a significant compensation payout. You should seek legal advice immediately to find out what you could be entitled to claim.

Legal advice for family law matters

Do you need legal advice regarding family law? If so, please complete your free legal enquiry form. Going through a separation and divorce can be a difficult time for those involved and that's why the process needs to run as smoothly as possible. It is therefore important that proper legal advice be obtained from a qualified legal practitioner practising family law who can help you and give you the legal advice you need to guide you through your difficult situation and ensure that the matter is dealt with as fairly as possible. Please complete your free legal enquiry form to find out more.

Car Accident Compensation

Have you been in a car accident? where you a driver, rider, passenger or pedestrian? If you answered "yes" to any of those questions, then you could be entitled to claim a significant compensation payout. To find out more please complete your free legal enquiry form.

 

Cyclist Accidents and Injuries

Quite often cyclists are not given proper care and attention by other road users. This can result in accidents occurring between car, trucks and other motor vehicles with bicycle riders. Motorists often fail to give way to cyclists therby causing an accident with the cyclist.

If you are a cyclist who has been involved in an accident, then the chances are you could be entitled to receive a significant compensation payout from the CTP insurer of the driver that caused the accident.

To find out more, please complete your free legal enquiry form.

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