Introduction
Coopetition, as a concept, suggests that firms address uncertainty by adopting strategies simultaneously combining cooperation and competition (Bengtsson & Kock, 2000; Brandenburger & Nalebuff, 1996; Yami et al., 2010). Such paradoxical strategies pursue various objectives, such as conducting precompetitive R&D, introducing new technological standards, opening new markets, and developing complex products. This perspective in strategic management addresses managerial concerns about when and how to cooperate with competitors to create and capture value. This chapter argues that coopetition in the highly competitive and protected domain of intellectual property permits the solving of complex problems such as anti-common problems or trolling and value destruction by non-practising entities. Patent pools are independent organizations through which more than three members (firms, research centers, universities, etc.) agree to license their patents to each other and to any third parties. These devices aim to solve, at least partly, the coopetition tensions of intellectual property, but relatively little is known about the resulting internal and external dynamics of coopetition at the level of patent pools.
This chapter develops an organizational approach to analyze how competing firms cooperate to collectively address patent-related concerns. To do so, we study meta-organizations in the field of patents (Berkowitz & Bor, 2017). Meta-organizations are organizations in which members are themselves organizations, and they aim to collectively control external organizations and to influence the surrounding environment (Ahrne & Brunsson, 2008; Berkowitz & Dumez, 2016; Gulati et al., 2012). As such, meta-organizations constitute a device through which organizations avoid uncertainty and create negotiated environments (Cyert & March, 1963). Only a few studies have focused on coopetition and meta-organizations (Chiambaretto & Dumez, 2016). In addition, little research has thoroughly examined how coopetition can take shape at the inter-organizational level and in both market and non-market environments. This chapter aims to better understand such coopetition dynamics in meta-organizations by studying intellectual property arrangements such as patent pools.
We show that patent pools and other forms of patenting arrangements, as meta-organizations, follow different patterns of coopetition in market and non-market environments, with three objectives: 1) creating value; 2) appropriating value; and 3) preserving created value for members. We contribute to the meta-organization literature by making explicit some of the conditions of valuable coopetition (Berkowitz & Dumez, 2016). Further, we clarify how and why competitors cooperate on patents and open a new avenue for research on coopetition to explore its stakes beyond dyadic value creation–value appropriation.
This chapter is organized as follows. It first describes coopetition tensions that exist in intellectual property. We then show the relevance of analyzing patent pools as meta-organizations and the governance mechanisms that are developed to reduce tensions. Finally, we discuss the resulting patterns of coopetition in market and non-market environments.
Coopetition tensions in the domain of patents
The literature on coopetition highlights drivers, tensions, processes and outcomes of such strategic behaviors at different levels and in different empirical settings (for a review, see Bengtsson & Kock, 2014; Gnyawali & Song, 2016). Patents represent a strategic resource based on the right to exclude others from using technological inventions (Ayerbe & Chanal, 2010; Hall, 1992; Hsu & Ziedonis, 2013). Clarifying how competing firms cooperate on patents adds another piece to the puzzle of implementing a coopetition strategy (Cassiman et al., 2009; Faems et al., 2010; Fernandez et al., 2014; Seran et al. 2016). Furthermore, exploring coopetition in a context such as intellectual property could enhance the understanding of patent strategies and their patterns. We aim to contribute to the coopetition field by exploring how and why competitors cooperate on patents.
The anti-commons problem in intellectual property
Many technology-based sectors such as biotechnology, consumer electronic, semiconductor, and telecommunications are characterized by a multi-invention setting where independent actors such as individual inventors, universities, and firms develop and patent technological components that form the final products (Hall & Ziedonis, 2001; Hobday et al., 2000; Somaya et al., 2011). In such settings, firms must address the problem of patent fragmentation or patent thicket, which is “an overlapping set of patent rights requiring that those seeking to commercialize new technology obtain licenses from multiple patentees” (Shapiro, 2000: 119). This problem of patent blocking creates what Heller and Eisenberg (1998: 698) described as an anti-commons tragedy “when multiple owners each have a right to exclude others from a scarce resource and no one has an effective privilege of use.” In other words, the multiplication of blocking patents could lead to the underuse of a technology. This occurs when those wanting to use and build on a technology must address the challenging and expensive task of acquiring licenses from multiple patent-holders (Somaya et al., 2011).
The problem of patent blocking concerns not only firms wanting to use the technology but also its developers or promoters. Indeed, their individual and parallel investments in R&D lead them to have a limited number of all patents required for secured-market operation. This is particularly the case for standardized technologies, as epitomized by the Blu-Ray video. This standard was introduced in 2006 and was developed by more than twenty independent (and competing) companies individually holding a (small) part of all the related patents.
The problem of trolling and value destruction by non-practising entities
Patent “trolls” or patent “sharks” are “corporations that seek to generate supra-normal returns on patent-protected technology through the suing of inadvertent infringers in one-shot trials” (Reitzig et al., 2010: 948). They are non-practising entities (NPEs) in the sense that they do not invest in R&D activities and do not develop or commercialize products. Rather, NPEs exploit information asymmetries in markets and acquire patents from financially distressed actors (start-ups, individual inventors, or universities) to trigger profitable hold-up situations (Pénin, 2012). Their targets for infringement lawsuits and royalty extraction are practising entities, that is, firms with market-related activities and investments, sued either individually (for instance, RIM by NTP) or more often collectively (for example, Acacia against manufacturers of healthcare information technologies) (Tucker, 2014). Figure 24.1 reflects the evolution of patent litigation against publicly traded firms in the US.1
For firms, trolling is a major threat. A deputy general counsel for patents at Google who recently experienced litigation by NPEs2 explains that
patent owners sell patents for numerous reasons (such as the need to raise money or changes in a company’s business direction). Unfortunately, the usual patent marketplace can sometimes be challenging, especially for smaller participants who sometimes end up working with patent trolls. Then bad things happen, like lawsuits, lots of wasted effort, and generally bad karma.
Bessen and Meurer (2014) estimated that the tax on innovation exerted by NPEs, that is, the direct cost to defendants’ firms, was $29 billion in 2011, and they found that much of this tax falls on small and medium-sized companies.3
Other empirical evidence shows the negative impacts of lawsuits by NPEs on innovation by firms and their investments in R&D. Bessen et al. (2011) found that defendants have lost over half-a-trillion dollars from 1990 to 2010 and over $83 billion per year between 2007 and 2010, which is the equivalent of more than one-fourth of US industrial R&D spending each year. In the case of small firms, Smeets (2014) identified an evident negative impact (2.6–4.7%) of patent litigation on subsequent R&D intensity. More recently, Cohen et al. (2016) analyzed data on patent litigation in the US between 2005 and 2015 and found that firms on average reduce their R&D investment by more than 25% after settling with NPEs. Other evidence shows the negative impact of patent litigation by NPEs on incremental innovations. Tucker (2014) analyzed the case of the healthcare information technology “PACS4” and identified a one-third decline in sales that was not the result of a suppression of demand by hospitals. Rather, hospitals’ demand for the improvement of imaging IT solutions was unsatisfied during the period of litigation between the NPE and the sued firms. This resulted in lower incremental product innovation. Overall, these studies show that NPEs’ opportunistic, predatory behavior negatively impacts sued firms and hinders innovation without increasing small-inventor activity. Hence, from both managerial and public welfare points of view, NPEs represent a serious threat due to the cost of their actions and the detrimental effects on innovation.
We have highlighted several tensions relative to coopetition in intellectual property. We now consider why it is relevant to analyze these dimensions at the level of the meta-organization.
Meta-organizations as a relevant level of analysis
Chiambaretto and Dumez (2016) showed that meta-organizations in the airline industry allowed the development of multi-level coopetition strategies. In the intellectual property domain, setting up meta-organizations also emerges as an efficient collective strategy to address coopetition tensions and concerns. Therefore, we argue that meta-organizations are a relevant level of analysis of coopetition in intellectual property as well.
Patent pools as coopetitive meta-organizations
Indeed, an effective strategy to address the problem of patent fragmentation and blocking is the aggregation of patents related to a technological standard in a meta-organization. The objective of such a strategy is to make the patents essential to a standard available to all its potential adopters. Such aggregation takes the form of patent pools. Patent pools are independent organizations through which more than three members (firms, research centers, universities, etc.) agree to license their patents to each other and to any third parties (den Uijl et al., 2013; Layne-Farrar & Lerner, 2011; Lerner et al., 2007; Lerner & Tirole, 2004). In that sense, patent pools constitute coopetitive meta-organizations, i.e., formal associations of competitors that develop both cooperative and competitive strategies. Patent pools have been used to promote many technological standards, such as Blu-Ray, MPEG, and MVC. Table 24.1 provides some examples of patent pools. They operate as one-stop shopping to bundle many complementary patents essential to a specific technological standard and owned by many independent actors. The latter commit to licensing all their patents essential to the technological standard promoted through the pool and to not taking any action to subvert such commitment. The pool’s licensees can be the other patent holders but could also be non-patent holders, whether they are incumbents, new entrants, large players, or small ones. Then, collected royalties are shared among patent holders depending on their contribution to the pool.
Table 24.1Examples of patent pools and their characteristics
| ARIB-Uldage | MVC | MPEG2 | One-Blue | PremierBD | |
Technological field |
Digital broadcasting receivers and digital broadcasting services in Japan |
Digital video coding standard |
Video and image compression and decompression technology |
Blu-Ray video technologies | |
Members holding patents in the pool |
Dolby; Fujitsu; Hitachi; INFOCITY; JVC KENWOOD; KDDI; LG; Mitsubishi; NEC; NHK Engineering System; Nippon Hoso Kyokai; Orange; TDF SAS; Panasonic; Pioneer; Sanyo; Sharp; Sony; Nippon Hoso Kyokai; Columbia University; Thomson/Technicolor; Toshiba |
Dolby; Electronics and Telecommunications Research Institute; Fraunhofer-Gesellschaft zur Foerderung der angewandten Forschung e.V.; Fujitsu; GE Video Compression; Hitachi; HP; Koninklijke KPN N.V.; LG; Mitsubishi; Nippon Telegraph and Telephone; NTT DOCOMO; Panasonic; Siemens; Sony; Tagivan II; Columbia University; Thomson/Technicolor |
Alcatel Lucent; ARRIS Technology; British Telecommunications; Canon; CIF Licensing; Cisco Technology; Fujitsu; GE Technology; HP; JVC Kenwood; KDDI; Philips; LG; Multimedia Patent Trust; Nippon Telegraph & Telephone; Orange; Panasonic; Robert Bosch; Samsung; Sanyo; Sharp; Sony; The Columbia University; Thomson/Technicolor; Toshiba |
Dell Computer; Hitachi; HP; JVC Kenwood; LG; Panasonic; Philips; Pioneer; Sharp; Samsung; Sony; Taiyo Yuden; Yamaha |
Columbia University; Disney; Mitsubishi; Technicolor; Toshiba |
Number of patents |
641 |
1145 |
1080 |
7600 |
3612 |
Number of licensees |
302 |
41 |
1164 |
73 |
47 |
(Source: adapted from Ayerbe and Azzam, 2015; Uijl et al., 2013.)
Patent pools are based on cooperation to promote the use of technological standards. This can be at a global level, such as MPEG2 for the video compression used in DVD players and recorders, TVs, personal computers, or game machines, or at a regional level, such as ARIB-Uldage for Japanese Digital Broadcasting. In some cases, different competing patent pools can emerge. This is the case for the Blu-Ray video standard around which two patent pools havedeveloped: One-Blue by Sony and its allies and PremierBD by Toshiba and its partners. Whatever their number in a given field, patent pools sustain cooperation between firms through the grant-back clause implying that all participants (patent holders and licensees) commit to licensing back patents of any improvement related to the standard (Lerner et al., 2007; Lerner & Tirole, 2004).
However, patent pools may experience internal competition between patent holders who seek to achieve both economic and strategic goals.5 One can observe in Table 24.1 that most patent holders are competitors in their respective markets. These actors join pools for common access to patents and hence ensure their ability to develop and commercialize products. Members also try to collectively compete against alternative technological standards. However, patent holders are interested in the royalties that patent pools generate. For this reason, they try to enhance their power by integrating more and more patents. Indeed, the share of royalties is based, in many patent pools, on the number of essential patents integrated (Layne-Farrar & Lerner, 2011). Figure 24.2 shows the distribution of patent ownership in two patent pools related to the Blu-Ray video standard.
Competition within patent pools concerns not only patent ownership and patent insertion but also the determination of royalties. Patent holders are not homogeneous; some are companies with market operations (vertically integrated firms), while others are without market activities, such as universities, research institutes, or firms specialized in R&D. Royalties (from pools) are the main source of revenue for this second group of patent holders. Vertically integrated firms must apply for licenses and pay royalties when they decide to join patent pools, notably when their products use the pool’s patents.
Finally, the licensing terms of patent pools can induce another form of competition between patent holders. Indeed, patent pools with complementary patents allow members to engage in independent licensing (Lerner et al., 2007; Lerner & Tirole, 2004). This clause implies that patent holders are free to license their individual pooled patents for an unrelated use without sharing related revenues with other pool members. Indeed, patented inventions could be used in multiple fields, as is the case for technologies related to the MPEG2 standard for digital video compression, also used in products such as DVDs and high-definition television (Lerner et al., 2007). Hence, the agreement states that the “MPEG-2 Licensor will grant MPEGLA a nonexclusive license under its Essential Patents, while retaining the right to license them independently for any purpose, including for making MPEG-2-compliant products.”6 In turn, this rule represents a window for more competition to generate additional income by licensing the same patents in another field and hence to outperform the other patent holders (Ayerbe and Azzam, 2015).
Organizational mechanisms in a coopetitive meta-organization
Coopetitive meta-organizations may develop specific features as a response to patent trolling. Indeed, companies’ concerns over predation by NPEs and the associated risk of value destruction lead some firms to take initiatives to make information about existing patents, technology value, and patent transactions available and transparent. The objective is to identify potential NPEs and inhibit their opportunistic behavior.
The LOT Network (License on Transfer) was created in June 2014 at the initiative of Google, three other large companies (Canon, Dropbox, and SAP) and two start-ups (Asana and Newegg) from the information and technology sectors. The LOT Network is a non-profit organization aiming to solve the trolling problem and to reduce litigation risk by NPE litigation. The LOT Network permits the immunizing of more than 600,000 worldwide patents owned by approximately 100 member companies and other actors, such as NGOs. Among these companies, several are direct competitors in their respective sectors, such as CBS, Netflix, and Showtime in media; Amazon andGoogle in Internet-related services; SAS and SAP in software development; Canon, GoPro, Lenovo, and Mundo Reader in consumer electronic devices; and Subaru, Daimler, Ford, General Motors, Honda, Hyundai, Kia, Mazda, and Nissan in automotive. The common purpose of these companies is to trace patent transactions and changes in patent ownership to anticipate NPE predation strategies. In doing so, operating companies can focus their attention and resources on innovation and product development, as the director of IP development at Hyundai Motor7 explains:
by joining the LOT Network, we will use this opportunity to focus more on R&D rather than using resources to fight against unnecessary lawsuits from NPEs. I hope this will help the automobile industry build healthier environment for its customers.
The operating mode of LOT is that companies deliberately decide to join the network and submit their patents. Once a company joins the network, it maintains ownership of the submitted patents. However, the network a priori commits to give licenses to all other members when it sells one (or more) of these patents to a third-party actor (that is not a member of LOT) with more than fifty percent of revenues generated through patent assertion.8 Hence, LOT member companies own a potential license on all the submitted patents to use them as immunity against any intimidation for patent infringement by an NPE. At the same time, companies keep ownership of their patent as well as the freedom to use them for other purposes (assert, license, or cross-license), as a senior VP and chief IP counsel at SAP9 explains:
the structure of the LOT Network helps protect innovative patent owners from unwarranted litigation, without stifling valid, beneficial uses of patents … As long as a company owns their patent they retain all their rights to it.
Furthermore, LOT is open to all companies seeking immunization against NPE predation, even if they do not own patents.
LOT aims to generate a network effect to attract more innovative companies (large companies or start-ups) and to become more attractive for other potential participants. At the end of 2017, LOT attracted more than 100 companies from various sectors (automotive, banking, computer, electronic, IT, media, retailing, etc.). To achieve this, LOT applies an adjusted membership fee depending on each member company’s annual revenues (from $1,500 a year for companies with less than $10 million in revenue to $20,000 a year for companies with revenue greater than $1 billion). After the creation of LOT in 2014, some members have sold certain patents to other outside players, including NPEs, but none of the other members has been attacked for violation of these patents.
Lessons learned: Criss-crossing patterns of coopetition inside and outside meta-organizations
Meta-organizations in the patent field raise interesting and complex issues of coopetition at different levels, as Chiambaretto and Dumez (2016) noted for the airline industry. First, at the internal level, by bringing together competitors in a formal organization, in our case patent pools and the LOT Network, meta-organizations aim to increase cooperation among certain types of actors. Different benefits may result from gathering in such coopetitive meta-organizations, as we synthesize in Table 24.2. However, simultaneously, meta-organizations may result in unfair, opportunistic internal strategies among members (e.g., hiding patents).
Table 24.2Meta-organizations’ objectives in different cases of patent pools
| MPEG 2 | LOT Network | |
Benefits from the Meta-organization |
Value creation Value appropriation |
Created value preservation |
Such coopetitive meta-organizations achieve three kinds of objectives. First, they may facilitate value creation for member companies through technological standard diffusion and cost reduction of negotiation to access key patents. In addition, they permit value appropriation thanks to royalties. Finally, some meta-organizations (e.g., LOT Network) even allow members to preserve created value by developing mechanisms to prevent opportunistic behaviors. However, there can be cases where the meta-organization itself enters into conflict with one of its members, as we showed in the case of the MPEG2. This occurs when a member develops its own strategy, discarding collectively defined rules at the meta-organizational level. These results contribute to the literature on meta-organizations by identifying conditions under which coopetition may be valuable or deterrent (Berkowitz & Dumez, 2016).
Second, at the external level, meta-organizations create a coherent group of actors who may enter into competition with other meta-organizations. In patent pools, meta-organizational competition addresses imposing standards. Competition now occurs among groups of cooperating competitors. In that sense, meta-organizations’ development triggers a shift in the coopetition’s gravity center that may exist at the industry level: gravity moves from player-to-player coopetition to internal and external meta-organizational coopetition in patent pools.
Patent pools are a rare case where the meta-organization facilitates market strategies through cooperation among competitors in a non-market environment (see Table 24.3). This case brings interesting insights regarding tensions related to coopetition. The literature stresses separation mechanisms to manage coopetition-related tensions, i.e., cooperating in a specific field (domain or activity) and competing in another field (Bengtsson & Kock, 2000; Fernandez & Chiambaretto, 2016; Seran et al., 2016). The concept of the meta-organization shows how tension between cooperation and competition can persist despite this separation. Indeed, patent pools are created by organizations that compete in a market environment to cooperate in a nonmarket environment. However, these organizations continue to compete to capture value within meta-organizations despite the cooperative orientation.
Table 24.3Coopetitive dimensions of market and non-market strategies in patent pools
| Market Environment | Non-market Environment | |
MPEG2 |
Competition (on prices, products, innovations, etc.) |
Cooperation (sharing patents) Competition (increasing patent shares to earn more royalties) |
LOT Network |
Competition (on prices, products, innovation, etc.) |
Cooperation to prevent opportunistic behaviors |
The coexistence of cooperation and competition within meta-organizations adds to the competition between member organizations in the market environment through price and/or product strategies. In addition to this coopetition within meta-organization, we have shown earlier that standards wars may add yet another layer of competition among meta-organizations. Highlighting these criss-crossing patterns of coopetition resulting from the establishment of meta-organizations is the main contribution of our chapter.
Conclusion
In this chapter, we analyzed and discussed collective intellectual property arrangements as examples of coopetitive meta-organizations, i.e., formal associations of competitors that develop both cooperative and competitive strategies. In the case of intellectual property, coopetition occurs both within and outside of meta-organizations. Patent pools and other arrangements such as the LOT Network indeed constitute a meta-organizational response to two major concerns in the field of intellectual property: anti-commons and trolling. However, meta-organizations may result in unfair, opportunistic internal strategies among members (e.g., hiding patents). Meta-organizations also contribute to increased competition outside of their membership through standard wars that oppose certain meta-organizations.
Our chapter highlights that these meta-organizations follow different patterns of coopetition in market and non-market environments. These meta-organizations have three objectives: 1) creating value; 2) appropriating value; and 3) preserving created value for members. Such meta-organizations’ development results in a shift in coopetition. From industry coopetition, it moves to coopetition between the member and the meta-organization (when individual strategy conflicts with collective strategy) or, above all, to coopetition across meta-organizations (in standards wars).
In the field of intellectual property, patterns of coopetition appear to be multi-level (organizational, meta-organizational), multi-dimensional (market and non-market), and criss-crossing. Further investigating these criss-crossing patterns of coopetition could provide a better understanding of both the optimization of patenting strategies and the efficient governance of patent pools. Studying coopetition in or through meta-organizations is an emerging and promising venue of research (Berkowitz & Bor, 2017; Chiambaretto & Dumez, 2016). Future research could further investigate the links between forms of meta-organizations (membership, sector, governance mechanisms) and coopetition patterns across patent pools, for instance, using qualitative comparative analysis.
Another fruitful path would involve modeling the optimal meta-organization membership for companies. Studying firms’ membership as a portfolio of meta-organizations would allow for the analysis of the costs and benefits of such strategies, as well as the synergies that can exist among meta-organizations and further the understanding of patenting strategies. Further, it would be interesting to analyze how members derive value from this membership and which organizational capabilities they build on to do so. This would contribute to ongoing research efforts to better understand the management of co-opetition (Bengtsson et al., 2016; Fernandez et al., 2014; Le Roy & Czakon, 2016).
Last, an interesting venue for research entails investigating the impacts and dynamics of eco-responsible patent pools. The Eco-Patent Commons is an organization established by private companies and administered by the World Business Council for Sustainable Development (WBCSD). Its objective is to diffuse “green” patents. The Eco-Patent Commons aims to make available (without royalties), to all participant and non-participant companies, patents related to technologies for energy conservation and efficiency, pollution prevention, materials reduction, and increased recycling ability. Beyond securing the use of environment-friendly technologies, the pool also aims to provide an open platform for collaboration among competitors for a cross-fertilization of sustainability-related technological competencies. In-depth case studies of this pool and its members would pave the way to understanding the role of meta-organizations in the diffusion of eco-responsible practices and resulting forms of coopetition.
Notes
1It is important to note that the problem of patent trolling is not specific to the American context, since other evidence in Europe shows that NPEs are responsible for approximately 10% of patent suits in the field in Germany (between 2000 and 2008) and 11% in the UK (between 2000 and 2010) (Love, Helmers, & McDonagh, 2014).
2In 2012, Google was the target of lawsuits by two NPEs (SimpleAir and Vringo) claiming the violation of their patents by two products developed by Google: the online advertising service Adwords and the operating system Android.
3The only legal cost per defense (outside counsel, prior art search, jury consultants, etc.) is $420,000 for small and medium-sized firms and $1.52 million for large firms (Bessen & Meurer, 2014). Other elements such as negotiation and potential damages contribute to the total cost.
4The PACS (picture archival and communications system) is a medical imaging technology used by hospitals for economic storage and used as an access facility for large amounts of data and images from multiple imaging devices. This lawsuit was launched by Hospital Systems Corporation, a subsidiary of Acacia, one of the largest patent-assertion companies, with 536 patents in 2011, against GE Healthcare, Fujifilm Medical Systems, Siemens Medical Solutions, Philips Electronics, and McKesson Corp.
5We report only “fair” competitive behaviors here. However, other unfair behaviors exist, such as patent dissimulation to create a hold-up situation (see Lerner, Strojwas, & Tirole, 2007). In 2007, the administrator of the patent pool MPEG2 sued one of the pool’s members, Alcatel-Lucent, for breach of contractual obligations. Indeed, Alcatel-Lucent transferred patents essential to the standard MPEG2 to a newly created company (Multimedia Patent Trust) to extract additional royalties and hence avoid the contractual commitment of placing essential patents in the patent pool.
6www.justice.gov/archive/atr/public/busreview/215742.htm#N_11_.
7www.businesswire.com/news/home/20160201005240/en/LOT-Network-Demonstrates-Rapid-Growth-Community-Battle.
8“What’s notable about LOT is that because each of our members agree to provide licenses to one another once a patent asset falls into the hands of a PAE (patent assertion entity), we’ve established a way to essentially immunize our community against PAE suits involving those assets” (Ken Seddon, CEO of LOT Network).
www.ip-watch.org/2016/12/01/helping-patenters-sea-paes-interview-lot-networks-ken-seddon/.
9http://au.pcmag.com/internet-products/13101/news/google-dropbox-more-team-up-to-battle-patent-trolls.
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