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Created: January 13, 2005.
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IBM Proposes a Patent Commons for Royalty-Free Open Source Software Development.


Update 2005-11-11: In November 1005, IBM, Novell, Philips, Red Hat, and Sony announced a new Open Invention Network (OIN) collaboration dedicated to the promotion of technology innovation around Linux. Patents acquired by OIN will be available royalty-free to any company, institution or individual that agrees not to assert its patents against Linux or certain Linux-related applications. OIN is described as a first of its kind IP management model using a patent commons to spur innovation. The Open Invention Network's CEO is Jerry Rosenthal, former Vice President of IBM's Intellectual Property and Licensing business. See details in the news story New Open Invention Network (OIN) Collects Patents to Promote Royalty-Free Linux."

[January 13, 2005] IBM has announced a new innovation initiative to support an industry-wide "patent commons" through which patents offered without payment of fees or royalties are used "to establish a platform for further innovations in areas of broad interest to information technology developers and users." The pledge extends to Open Source Software (OSS).

IBM has seeded the initiative by publishing a "Statement of Non-Assertion of Named Patents Against OSS" that identifies 500 listed U.S. patents and/or the counterparts of these patents issued in other countries. The pledge to offer these patents free of fees or royalties "is applicable to any individual, community, or company working on or using software that meets the Open Source Initiative (OSI) definition of open source software now or in the future."

Like other companies contributing to standards development in the IT arena, IBM has already been making selected patents available on a royalty-free basis for use in open standards covering software protocols, file formats, and interfaces. At the August 2004 LinuxWorld Conference and Expo, IBM's Nick Donofrio announced a promise that IBM would not "use its formidable collection of technology patents against Linux, and challenged other companies to do the same, working to dispel one cloud that hangs over the open-source programming movement." With reference to some twenty-seven essential patents affecting Linux, CNet reported Donofrio as saying "IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves."

The new pledge for open access to key innovations covered by 500 IBM software patents is characterized by IBM as a "major shift in the way IBM manages and deploys its intellectual property (IP) portfolio." The pledge is said to cover "thousands of open source projects and programs," and is "not a one-time event."

According to Dr. John E. Kelly, IBM's Senior Vice President of Technology and Intellectual Property, "IBM will continue to demonstrate leadership in patent output, through measures such as today's pledge, will increasingly use patents to encourage and protect global innovation and interoperability through open standards, and [will] urge others to do so as well."

The 500 patents referenced in the IBM pledge are said to relate to many aspects of software innovation: "Several of the patents cover dynamic linking processes for operating systems. Another patent is valuable to file-export protocols. In total, the pledged patents cover a wide breadth, including patents on important interoperability features of operating systems and databases, as well as internet, user interface, and language processing technologies."

IBM has described its rationale as a move to "advance open standards and information technology interoperability. Open source software, based on collaborative innovation among developers around the world, is gaining significant marketplace momentum. IBM believes the patents it is opening up to open source developers will help foster continued innovation. They also can contribute to open standards and broader interoperability between applications by providing open source developers with a solid base of innovation they can use and share. Open standards can accelerate the interoperability and expansion of the global infrastructure."

The pledge is also designed to avoid the possibility that some party will take advantage of the IBM pledge "and then assert patents or other intellectual property rights of its own against Open Source Software, thereby limiting the freedom of IBM or any other Open Source Software developer to create innovative software programs." A defensive clause in the legal text therefore also declares that "IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software."

Bob Sutor, Vice President of Standards for the IBM Corporation, expressed his hope that "this action will stimulate discussion about the changing nature of innovation and the new collaboration models enabled by the Internet and realized in the thousands of open source projects around the world. Of course, we also hope others will join us by similarly pledging patents to the commons."

IBM's pledge makes reference only to Open Source Software, and not to commercial software. Open Source Software, as envisioned in the pledge, is "any computer software program whose source code is published and available for inspection and use by anyone, and is made available under a license agreement that permits recipients to copy, modify and distribute the program's source code without payment of fees or royalties. All licenses certified by and listed on their website as of 01/11/2005 are Open Source Software licenses for the purpose of this pledge."

IBM also announced the release of patent award statistics by the Department of Commerce's United States Patent and Trademark Office (USPTO). The announcement from USPTO names 2004 top 10 private sector patent recipients; the list contains the 10 corporations receiving the most patents for inventions in 2004, along with their 2003 ranking. For the twelfth consecutive year, IBM received more patents than any other private sector organization. "With 3,248 patents, IBM earned more U.S. patents than any other company for the twelfth consecutive year. IBM had 1,314 more patents than any other company. This is the fourth consecutive year IBM has received more than 3,000 U.S. patents, and remains the only company to receive more than 2,000 patents in one year."

From the IBM Announcement

IBM today pledged open access to key innovations covered by 500 IBM software patents to individuals and groups working on open source software. IBM believes this is the largest pledge ever of patents of any kind and represents a major shift in the way IBM manages and deploys its intellectual property (IP) portfolio...

Also today, the United States Patent and Trademark Office (USPTO) has released its annual list of the top patentees. With 3,248, IBM earned more U.S. patents than any other company for the twelfth consecutive year. IBM had 1,314 more patents than any other company. This is the fourth consecutive year IBM has received more than 3,000 U.S. patents and remains the only company to receive more than 2,000 patents in one year. While IP ownership is an essential driver of innovation, technological advances are often dependent on shared knowledge, standards, and collaborative innovation. IBM's IP framework enables both while protecting truly new, novel and useful inventions. Open standards can accelerate the interoperability and expansion of the global infrastructure.

"True innovation leadership is about more than just the numbers of patents granted. It's about innovating to benefit customers, partners and society," said Dr. John E. Kelly, IBM senior vice president, Technology and Intellectual Property. "Continuing IBM's legacy of leadership in the strategic use of intellectual property, our pledge today is the beginning of a new era in how IBM will manage intellectual property to benefit our partners and clients. Unlike the preceding Industrial Economy, the Innovation Economy requires that intellectual property be deployed for more than just providing the owner with freedom of action and income generation."

At LinuxWorld in August, IBM pledged not to assert any of its patents against the Linux kernel. Today's pledge covers thousands of open source projects and programs. "This is not a one-time event," said Dr. Kelly. "While IBM will continue to demonstrate leadership in patent output, through measures such as today's pledge, we will increasingly use patents to encourage and protect global innovation and interoperability through open standards, and we urge others to do so as well. We will work with the USPTO and other commentators and policy makers to ensure that the U.S. patent system continues to evolve to address the challenges of the Innovation Economy."

IBM invests approximately five billion dollars annually in research and development and has made many discoveries and inventions that have improved quality of life.

IBM's focus on innovation goes beyond standard technology. For example, in 2004, IBM received dozens of patents related to accessibility for people with disabilities, including: advances in speech recognition, wireless Braille devices, Web site accessibility and a portable colorimeter for the colorblind.

The 2004 patent results were reported today by the United States Patent and Trademark Office. An agency of the U.S. Department of Commerce, the USPTO issues patents, administers the patent and trademark laws of the U.S., and advises the administration on intellectual property policy.

Results and ranking also were reported today by IFI CLAIMS Patent Services, which compiles the CLAIMS patent database and annually reports the number of U.S. patents issued to companies. According to IFI CLAIMS, IBM inventors were listed on 29 additional patents awarded to other primary assignees for a total of 3,277 patents.

Clippings from the Press

Industry analysis and commentary in response to the IBM announcement has been mixed, though generally positive. Many believe that irrespective of IBM's motivations, the opening of new debate and discussion will be productive, leading toward creative solutions that limit the detrimental effects of software patents. Others fear that IBM's move will confuse what is otherwise a (sic!) simple matter, demarcated by clear battle lines: a number of large companies (including IBM) are lobbying for software patents in Europe, while the Open Source community, many small businesses, and some goverment jurisdictions are adamantly opposed to proposed new European Union legislation allowing software patents. Selections from the analysts and journalists:

  • "Will IT Vendors Set Up a Patent Trust?" By Timothy Prickett Morgan. From IT Jungle (January 13, 2005). "What IBM has done formalizes the process by which open source projects can legitimately use the company's intellectual property — and without fear of reprisal... What IBM has done may confuse the whole software patent issue that is raging in Europe, and those who hate software patents, as many Europeans do, are not going to be happy about this. And there is no question that the Patent Office in the United States has made some bonehead moves in granting software patents, so don't think that I am defending software patents in general. I regard the whole concept as dubious. But the fact remains that the United States has issued software patents, and unless every software vendor agrees to give up those patents, software patents will be an issue for the whole world, because a U.S. company will have no quibbles about suing a foreign company that is violating its software patents. The patent commons idea that IBM is initiating has enlightened self-interest, of course. The patents cover sophisticated microcode for multiprocessor systems, cache coherency, system interfaces, storage management, database management systems, image processing and video, speech processing, data compression and encryption, software development, Internet and e-commerce, networking, and number of other areas in which open source programs could use a little help. IBM is keen on Linux taking over the IT market, because that is the best way (it believes) to combat the Unixes of its rivals as well as Windows..."

  • "IBM's Giveaway Should Play Well." By Chris Nolan. In eWEEK (January 12, 2005). "... IBM's announcement may well be a case of making a virtue out of necessity. Given the company's willingness to embrace open-source projects such as Apache server software, it could be that IBM wouldn't be able to enforce many of the patents it has received... Unable to make sense of what's going on — who's right, who's wrong — Congress will throw up its hands and do nothing. That's great if you like the current system — and most big companies, including IBM, do — but not so nice to the open-source evangelists. The bottom line: IBM has played some smart politics here. It has satisfied its obligations under open-source agreements, it has racked up brownie points with the open-source community, and it has created a kind of political confusion that will help it exploit its new patents. It's a clever strategy that just might work to the advantage of IBM and its competitors..."

  • "Developers Voice Mixed Reactions to IBM Patent Policy." By Robert McMillan. From InfoWorld (January 12, 2005). "IBM's decision to give open source developers unencumbered access to 500 of the company's 40,000 patents was greeted with cautious optimism on Tuesday by some of the open source developers it was intended to help. Developers who welcomed the gesture also had words of criticism for the practice of creating software patents — a form of intellectual property (IP) they generally oppose... But the announcement does not cover all of IBM's software patents, and open source developers contacted on Tuesday voiced some concerns. "We certainly welcome the declaration of about 500 patents with open arms, but we still have questions." said Bruce Perens, an open source advocate and a founder of the Open Source Initiative. "One of the biggest questions is, despite this overture, is software patenting really good for the industry in general, and is it going to still be a very big problem for open source?" Like Perens, many open source developers argue that patent law, which protects the techniques and ideas behind software programs, should not be used to defend software innovations. Copyright law — which prevents unauthorized copying of the software itself — is a much better protection mechanism for software, they argue..."

  • "EU Looks to Scrap Patent Process." By Matthew Broersma. In eWEEK (January 11, 2005). "A group of 61 members of the European Parliament, or MEPs, has initiated a plan to scrap the European Union's current legislative process around IT patents, citing changes caused by recent European elections, EU expansion and growing concerns around software patents. The move comes just as IBM has said it will donate 500 patents for free use by open- source software developers, in an attempt to defuse the debate around software patents. In Europe, IBM is a major supporter of new patenting rules that critics argue would open the floodgates to software patents, critics pointed out. Last month, Poland dramatically intervened to delay the EU Council from adopting the proposed directive, creating an opportunity to reopen the debate. That is what MEPs are now trying to do. Monday's motion was put forward by 61 MEPs from 13 countries and four political groups, led by former Polish Prime Minister Jerzy Buzek. It cites as its main concern the fact that 'patent-related risks increasingly have implications for the decisions taken by public administrations and private sector organisations with regards to (IT) infrastructures."

  • "IBM's 500 Patents: Gift or Gauntlet?" By David Berlind and Larry Rosen. From ZDNet Blogs (January 12, 2005). "On one hand, the 500 patents that IBM has released for unencumbered use by open source software developers is a giant step in the right direction, if you ask open source attorney and advocate Larry Rosen, According to Rosen, this [defensive] language ['IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit...] — which he refers to as the legal language of mutually assured destruction — is a reasonable way of turning the pledge into a double-edged sword. During the cold war, according to Larry Rosen, the United States said 'we're going to protect South America and Europe and other portions of the world with our nuclear shield. And if you go after us, or any of them, be prepared to have our nuclear weapons strike you. I don't think that's necessarily an ineffective way of dealing with a problem.' Rosen characterized the open source community as being somewhat defenseless against ruthless patent infringement claims, and said 'In terms of intellectual property strategy, the open source community on its own does not have a lot of patents and it is subject to what happens by other companies who do have patents. In this case, IBM is saying two things. First of all, 'Those patents are now available to the open source community without any worry. We won't assert them against you.' Second of all, it's trying to impose this very specific and well-defined shield and saying, 'Not only are these 500 patents available to the open source community, but, we may assert these 500 patents against anyone who sues the open source community' and that's a kind of 'you bomb us or our friends, and be prepared to be bombed back.' There's nothing necessarily unethical about it. Countries do it. So should companies..."

  • "IBM Pledges 500 Patents for Open Source." By J. Paul Kirby. From AMR Research (January 26, 2005). "Even as its patent donation influences the outcome of Web services, IBM has stopped short of promising to defend outright those using the 500 patents. Yet the message is clear: IBM's patent portfolio is the largest in the world and could be a significant obstacle to anyone wishing to defeat open source in court. If step one is pledging patents, step two seems obvious. Patents that can create open source can also shield it from adversaries. No one should overlook the Big Blue elephant in the lobby of the courthouse..."

  • "making good." By Lawrence Lessig. The Professor's Blog. "IBM has announced the pledge of 500 patents to a 'patent commons' for 'open source' software development. That means people developing software licensed under a license certified by the Open Source Initiative can be assured that IBM will not assert these 500 patents against them — at least so long as they don't sue IBM or another open source developer for patent related issues... This is important news. It further demonstrates IBM's commitment to making free software and open source software development flourish. And it could well inspire others to follow. Ideally there should be a trust that these patents could be contributed into. We'll have to get the commonists to get to work building such a thing..." See similarly at 'Lessig Blog Archives: heroes'.

  • "I.B.M. to Give Free Access to 500 Patents." By Steve Lohr. In New York Times (January 11, 2005). "The new model for I.B.M., analysts say, represents a shift away from the traditional corporate approach to protecting ownership of ideas through patents, copyrights, trademark and trade-secret laws. The conventional practice is to amass as many patents as possible and then charge anyone who wants access to them. I.B.M. has long been the champion of that formula. The company, analysts estimate, collected $1 billion or more last year from licensing its inventions... Today's move by I.B.M. is not aimed at a specific project, but opens access to 14 categories of technology, including those that manage electronic commerce, storage, image processing, data handling and Internet communications... Just how far I.B.M. intends to go in granting open access to its patents is uncertain. The 500 patents are a small slice of its corporate patent trove of more than 40,000 worldwide and 25,000 in the United States. In recent years, software patents have accounted for about half of the patents granted to I.B.M..."

  • "Patent Commons." Blog by John Patrick. January 12, 2005. "... The patent pledge is a major shift in the way IBM manages and its intellectual property portfolio. Surely they will continue to invent things in IBM Research laboratories but in addition they are launching an initiative called 'collaborative innovation'. The idea is to form an industry-wide 'patent commons' in which patents are used to spread new ideas more rapidly to both developers and users. Some of the most significant technological advances are based on open standards (in the public eye like open source software) and shared knowledge and experience. Probably the best example of this I can think of is the Internet. IBM's new move may lead to important breakthroughs as IBM challenges other companies to follow suit in deploying their intellectual property portfolios for more than just legal or financial self-interest..."

  • "IBM Accused of Hypocrisy Over Patent Collaboration." By Ingrid Marson. From ZDNet UK (January 11, 2005). "Florian Mueller, the campaign manager of an anti-patent Web site, has accused IBM of hypocrisy as it is also lobbying the EU to push through the Computer Implemented Inventions Directive , which many believe would allow software patenting in Europe. IBM is a member of pro-patent organisation EICTA. According to sources it has also individually lobbied political parties to push through the directive. A spokesman for Germany's ruling Social Democratic (SPD) party, which spoke out against the directive in October, told ZDNet UK that IBM has put pressure on it both individually and through EICTA to support the directive. In particular, Fritz Teufel, the head of IBM's patent department in Germany, has been involved in pushing through the software patent directive, according to Mueller and the FFII, which has a Web page dedicated to Teufel. Other anti-patent campaigners claim that IBM's recent move proves that software patents cause damage to open source software. This is a concern of many prominent open source developers, including Linux creator Linus Torvalds, Knoppix founder Klaus Knopper and MySQL co-founder Michael Widenius. But this risk was denied by the UK patent office (UKPO) at a meeting held at the Department for Trade and Industry (DTI) in December..."

  • "Big Blue Becomes Bountiful." [By Economist Staff.] In The Economist (January 11, 2005). From The Economist Global Agenda. "IBM's pledge to make available a slew of its software patents by itself will do little to address the problem of too many patents protecting the wrong things. But it may encourage more technology companies to take a similar tack. If they do, then more firms may be encouraged to collaborate in developing new software instead of trying to forestall their rivals by taking out pre-emptive patents. Jim Stallings, IBM's vice-president for standards and intellectual property, hopes that other firms will join it in forming what he calls a 'patent commons' from which bona fide programmers will be entitled to draw without paying royalties..."

  • "IBM Grants Open-Source Developers Use of 500 Patents." By Paul McDougall. From InformationWeek (January 11, 2005). "Coming on the heels of the sale of its PC business to China's Lenovo Group Ltd., the move is a further indication that IBM wants to position itself primarily as a service provider, some analysts believe... The intellectual property represented by the patents will be available only to those programmers working on projects that meet the Open Source Software Initiative definition of open-source software. Among other things, that definition stipulates that open-source software remain royalty-free. In a thinly veiled shot at Unix-developer SCO Group Inc., IBM says it retains the right to block organizations that file lawsuits asserting patent rights over open-source software from accessing the patents it's contributing to the open source community..."

  • "IBM Gives FOSS Free Access to 500 Patents - Rethinks IP Management." From Groklaw (January 10, 2005). " I know some would naturally argue that all software patents are bad. has taken that position and are critical of IBM's pledge. I think software and patents need to get a divorce myself, but I also see that we are in a period of transition. Old business models are dying, and new ones are coming into being. And if there is a way to allow everyone to make money the way they want to, that may be, for now, as good as it gets. This is a creative response to the particular issue that GNU/Linux faces with patents, and I applaud it. In honor of this moment, we have a new category of stories, Patents, so you can find only stories on that topic on Groklaw. I thought about doing it earlier, but it seemed like such a depressing topic. Now, the landscape just changed..."

  • "IBM's Patent Pledge Leaves Unresolved Issues, Say Analysts." By Susan B. Shor. From, Part of the ECT News Network. "Open-source advocate Bruce Perens was underwhelmed. 'I think it's nice to have them open their patents for use with open source. It's a good start,' Perens said. 'But I wonder why these particular 500? I doubt they are all of the software patents that IBM owns.' He also questioned the timing of the move. 'Yesterday, we had 61 members of the European Parliament ask to restart the software patenting debate from zero. I wonder if this is an effort to convince Europeans that software patenting will be compatible with open source and that it will be okay to go ahead with it,' Perens said..."

  • "IBM Liberates More Code for the Proletariat." By John Paczkowski. From Good Morning Silicon Valley (January 11, 2005). "Florian Mueller, campaign manager of, blistered IBM for the move. 'Recently IBM made an unsubstantial non-aggression promise with respect to Linux, and now they show off again,' Mueller said. 'It's just diversionary tactics. Let's put this into perspective: We're talking about roughly 1% of IBM's worldwide patent portfolio. They file that number of patents in about a month's time. In Europe, IBM is a driving force behind the extension of the scope of patentability with respect to software. If IBM wants to assume the role of a post-Christmas benefactor, they'd better stop their aggressive patent lobbying in the EU and their shameless squeezing of small and medium-sized companies with that IBM 'patent tax.' Let's take it from there. We can still talk about some kind of patent pittance after that'..."

  • "Those IBM Patents." By Tim Bray. From Ongoing (January 11, 2005). "As of this writing, IBM says that its 'current active portfolio' contains about 23,000 patents, and that in 2003 they received 3,415 new ones. Patents aren't free. If you're paying the retail rate to a decent law firm, one will cost you in the range of US$10,000. IBM should get economies of scale and not be paying external law firms, but they're spending at least $17M/year on this stuff (just the lawyers, not the inventors). So, this announcement means that IBM is unlocking 2.17% of their active portfolio, representing a few million bucks in legal expenses. But one is left with some questions: How were these selected? Among the remaining 22,500 patents, are there some that IBM plans to begin litigating? Or probably won't litigate, but might? Or is this a general statement that IBM will not bring its patent portfolio to bear against Open Source software in general?..."

  • "Patently Open Source." By Michelle Delio. From Technology (January 12, 2005). "Copyright and patent law has always lagged behind technological development, and has had to be amended repeatedly to deal with developments such as phonograph records, cable television, tape recording, and the digital age, says Bruce Sunstein, an attorney specializing in intellectual property law at Boston-based Bromberg & Sunstein. While the copyright and patent systems were originally developed to protect innovation and invention, many people now believe that patents are increasingly becoming a detriment to scientific, technological and creative advancements. 'The real story here is that we are in the midst of a huge revolution because the patent system hasn't kept up with technology and changes in society,' says Sunstein... IBM, once the bane of hackers and programmers who were trying to string together the communications network that would become the Internet, is embracing, on some small level, the open source idea of innovation. That's not necessarily how all businesses see the wave of open sourcing patents breaking. 'Modern-day sort of communists' is how Microsoft's chairman Bill Gates, in an interview with described those who are less than keen on current intellectual property laws. Gates said that while 'the patent system can always be tuned', without patents and the profits they provide, economies and innovation would stagnate. 'Intellectual property is the incentive system for the products of the future,' Gates insisted. But Gates' derisive comments towards those who believe in shared research and development did little to further his cause. The statement quickly led to bright red web site banners and T-shirts proudly proclaiming the bearer or wearer as a 'Creative Communist,' a reference to the Creative Commons licensing system. The Creative Commons licenses allow writers, artists and musicians to put their work into the public domain while still retaining some rights to how it is used and redistributed..."

  • " IBM Uses Patents to Lead Open-Source Community." By Yefim V. Natis and David Mitchell Smith. Gartner Research note, ID Number: G00125872. (January 14, 2005). "Following its market-making support of Linux and its market-altering Eclipse initiative, IBM again asserted its support for open-source initiatives and underscored its position as a major IT influence. By releasing this initial set of patents and leading the development of a proposed 'patent commons' (IBM hasn't identified other participants), the company encourages the rest of the software industry, and many mainstream users of IT, to treat open-source technologies and companies with respect. IBM's stature lends long-term viability to the principles of open source, encourages open-source innovation by smaller and startup independent software vendors, and again endorses companies, such as Red Hat and Novell, that are entirely dedicated to open source. Above all, IBM's latest move puts new pressure on Microsoft — indirectly casting it as a proprietary alternative to the industry's open-software movement... Gartner expects IBM to follow this announcement with other significant steps in open source. To date, IBM has not established a public position in the area of open-source Java 2 Platform, Enterprise Edition technology and other application server, integration and portal technologies covered by its WebSphere product family. IBM will articulate this position by year-end 2005; doing so will create another industry ripple effect, this time in the application platform suites market..."

  • "IBM Shares Patents with Open Source Developers." By Robert Kaye. From O'Reilly Developer Weblogs (January 11, 2005). "This is the most serious (and cool!) development in Open Source in quite some time. Software patents are one of the few genuine threats to the open source model, and IBM taking a step to ensure that the OSS model isn't hindered. While I am far from an expert on patents and IANAL, I see two distinct facets to this issue. First, this means that open source developers can sleep better at night with respect to these 500 patents. IBM is not going to sue you tomorrow because you've inadvertendly stepped on one of their patents. Phew The second facet is the concept of a patent pool. I don't know how this will shape up with respect to the patent commons that IBM is creating, but consider... I applaud IBM in this move and I am curious to see what will come of this in the future. However, we need to keep in mind that IBM is a large corporation, and while they have drastically changed course from their actions in the 80s, they are still self interested and have to look out for shareholder value. This patent pool is not an altruistic act -- IBM has some strategy in mind with this move. Perhaps its as simple as fostering open source and ensuring that the model doesn't evaporate due to patents..."

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