It’s (New) Corn: The Effect of Plant Patents on Farmers and Food Sustainability

Bryn Ericksen, Contributing Member 2022 – 2023

Intellectual Property and Computer Law Journal


            Patent law arose out of the need to create an incentive for the invention of new technologies and inventions.[1] The United States Patent and Trademark Office (“USPTO”) identifies three different types of patents that can be granted: utility patents, design patents, and plant patents.[2] The most common patent filed at the USPTO is a utility patent, granted to anyone who invents or discovers any kind of new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof.[3] Design patents are granted to anyone who invents any new, original, and ornamental design for an article of manufacture.[4] The third and final category of patent is called a plant patent, which can be granted to anyone who invents or discovers and asexually reproduces a distinct new variety of plant.[5] The importance of granting plant patents supports the policy of patent law, but the USPTO should seriously consider the potential effect that granting these patents could have on small farmers and global food sustainability.

Plant patents protect the rights of the inventor by excluding others from asexually reproducing the plant or offering it or any of its parts for sale in the United States.[6] Rights of plant patent owners also include preventing others from importing the plant so reproduced, or any part thereof, into the United States.[7] The policy behind someone being granted a plant patent relates back to the policy behind patent law generally – the government wants to encourage people to create new plant varieties.[8] Creating new varieties of plants can solve identified problems with either the plant itself or the process of growing the plant, such as resistance to diseases and insects, greater yield, higher quality, and other benefits.[9] Genetic modification can lead to stronger flavors in food, increased nutrition, a lessened need for pesticides, faster growing plants, and disease or drought resistant plants.[10] These favorable modifications can result in the creator receiving patent protection from the United States Patent and Trademark Office. However, plant patent litigation has not been as common in the past as it is becoming today. As a result, United States federal courts are more familiar with the implications of utility patent protection than they are with plant patents.[11]

The concept of plant patent protection was explored by the court through a case involving plant breeding programs. The Court in Yoder Bros. v California-Florida Plant Corp reviewed traditional contract-based forms of exclusivity with regard to plant variety protection and compared it to the protection that could be granted through a plant patent.[12] In that case, Yoder Brothers was a plant breeder and propagator distributor who brought action against California-Florida Plant Corp. and California-Florida Plant Corp. of Florida.[13] Yoder Brothers alleged infringement of twenty-one of its chrysanthemum plant patents.[14] The court noted that Yoder Brothers had previously attempted to monetize a breeding program through contractual agreements that granted exclusivity protection, but the agreements were difficult to enforce and were found to violate the antitrust provisions of the Sherman Act.[15] After these protections were shut down, Yoder Brothers began patenting new varieties of chrysanthemums under the Plant Patent Act, which were then successfully enforced and provided protection to Yoder against competitors.[16] The case of Yoder Bros v California-Florida Plant Corp illustrates how the farming industry can commercialize genetics through obtaining plant patents for new and unique varieties of plants.[17] The commercialization of genetics could lead to favorable outcomes for plant patent owners, encouraging those who create new varieties of plants to apply for patents.

The use of biotechnology within the food industry can be controversial. Consumers can therefore have a significant impact on the genetic modification of plants if they are hesitant to accept the benefits of food that has been genetically modified.[18] The connection between what most of the population chooses to support and what companies decide to invest in is crucial in understanding and analyzing how plant patents can affect the state of food security around the world. Consumers drive the biotech industry by regulating what will or will not generate a profit for those companies, possibly eliminating investment in genetic modification or agricultural technology research.[19] The dangers of consumers rejecting genetically modified plant varieties could have implications on food security around the world.

Intellectual property law not only affects the farmers who grow patented seeds but can also affect food security and agriculture in general. This article will focus on how plant patents might affect food sustainability in the future. The first topic of discussion will outline the background of plant patents and what constitutes genetic modification as it relates to plants. Once these topics have been addressed, the paper will then detail how plant patents affect farmers and what this means for the problem of food security in the United States and around the world.


Plant Patents Generally

            As briefly discussed above, plant patents were created to address several problems faced by anyone who was able to create a new variety of plant. The process of genetically modifying plants and selectively identifying favorable qualities to use is a tedious process and expensive for the developer, but relatively easy for others to replicate and begin growing the new plant.[20] Therefore, it is beneficial to have legislation that addresses this issue.

            The United States Plant Patent Act of 1930 introduced plant patents and provided plant breeders with a way to protect asexually produced plants.[21] Before the United States Plant Patent Act of 1930, new varieties of plants were not given any form of federal patent protection because plants were thought to be “products of nature” and were not considered inventions.[22] Receiving a plant patent is simpler than receiving a utility patent because plant patents only require a detailed phenotypic description of the protected variety without having to make a biological deposit of the entire plant.[23] In other words, it is simpler for the inventor to apply for plant patent protection as opposed to utility patent protection.[24] To better understand what protection can be granted to the owner of a plant patent, it is important to understand what constitutes genetic modification.

Genetic Modification

            The creation of new and distinct plant varieties can be accomplished through three different methods of genetic modification.[25] The traditional methods of creating new plant varieties have existed for nearly 10,000 years and include processes such as selective breeding and cross breeding.[26] The traditional methods of gene modification in plants take significantly more time to achieve the same results as the other methods of genetic modification of plants that exist today.[27] Genetic engineering and genome editing have evolved and become a prominent method of creating new plant varieties.[28] Scientists can use the process of genetic engineering to copy a gene with a desired trait in one plant and place it into another plant.[29] This process was first used in the 1970s and allows for the selection of favorable genes to be included in the DNA of a chosen plant variety.[30] Genome editing is a more precise process of traditional methods of genetically modifying plants, such as directly removing an unwanted gene from the DNA of a certain plant.[31]

            New processes of genetic modification of plants have had positive and negative effects on the traditional practices of farmers. For example, if a seed that a farmer plans to use is patented, the farmer will not be able to save any seeds from that crop to plant the next year.[32] Farmers that choose to use a seed that has a patent must purchase those seeds each year directly from the company owning the patent on that seed.[33] This process has replaced what was once known as the “farmer’s rights” to save portions of their seeds and either trade them with other farmers or save them for the following year.[34] Using patented seeds allows farmers to benefit from the modifications made to that seed by the patent owner, but also takes away their ability to save seeds for their future crops.[35] Patent protection of the seeds farmers use makes it necessary for those farmers to understand the license and technology user agreements they enter into with seed companies to avoid possible litigation.[36]

Importance of Plant Patents

            Plant patents not only provide protection to the creators of the new plant varieties but can also assist in the development and distribution of genetically modified seeds. Increased protection for seed developers allows for greater freedom when it comes to licensing agreements and is ultimately easier for them to sell their seeds without fear of lacking a remedy if infringement occurs.[37]

            With the creation of plant patent protection by the United States Plant Patent Act of 1930, companies are incentivized to create food varieties that can benefit farmers and the community.[38] Patenting more plant varieties will allow greater access to favorable seeds by farmers and will contribute to higher yielding crops or more nutritious food for consumers. Food sustainability can be described as practices that fulfill the food requirements of society while also protecting the environment.[39] Favorable seeds that have unique qualities can have a positive impact on food sustainability by protecting traits that promote a secure food supply. This idea further supports the policy behind patent law and shows how important plant patents are to the community.



            Infringement of a patent occurs when someone “makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent” without the proper authority.[40] Farmers can infringe on plant patents if they decide to use a patented seed without properly licensing with the patent owner.[41]

            These cases of infringement have historically not been litigated because the group of people often involved in plant patent infringement, such as farmers, are not likely to bring cases to court and in the past have been able to use the intellectual property of others without running into disputes.[42] In the past, farmers were able to exercise their “farmers rights” and save seeds from their previous crops for the future, so disputes rarely arose.[43] Enforcement of plant patents has increased and this area of law is likely going to be expanded in the because larger companies are realizing the effects that plant patent infringement can have on their business and profits.

Plant Patent Litigation

            The case law relating to plant patents is not as detailed or expansive as that of other areas of patent law or even intellectual property law in general. With recent holdings however, the area of patent law involving new plant varieties could be expanding in the near future. An early case in plant patent litigation involves the owner of a plant nursery, Bruno Imazio, who had received a plant patent entitled “Heather Named Erica Sunset.”[44] Imazio’s patented heather was unique only in that it bloomed in December rather than blooming in March.[45] Coastal Nursery, another plant nursery, then began selling a heather called “Holiday Heather” in December 1991 in the form of cut flowers and live potted plants.[46] Imazio brought suit against Coastal Nursery alleging infringement of the “Heather Named Erica Sunset” patent.

The court provided an in-depth analysis of what the word “variety” as used in the patent statute should be interpreted to mean in reference to new and distinct varieties of plants. Imazio argued that the term “variety” should encompass more than clones of a single plant and should be interpreted in a broader taxonomical sense.[47] Coastal Nursery disagreed with this argument and instead suggested that the term “variety” should be interpreted to mean something that differs from others of the same general kind.[48] Several experts were able to testify that the two heathers in question were similar to other varieties of heathers, but did in fact differ in their blooming cycles from other heathers.[49]  The California Northern District Court therefore determined that Imazio was able to show a probability of success on the issue of infringement and Coastal Nursery was not able to escape liability by showing independent creation of the Holiday Heather. However, on appeal, the Court determined that simply sharing the same essential characteristics as the plant claimed by the patent was not enough to show infringement.[50] The Court of Appeals noted the importance of the “asexual reproduction question” and held that for infringement to exist, Coastal Nursery’s Holiday Heather would have had to be proven to be an asexual reproduction of the Erica Sunset heather.[51]

            In 2001, the United States Supreme Court provided a pivotal opinion on a plant patent case involving a dispute between Pioneer Hi-Bred International, Inc. and J.E.M. Ag Supply, Inc. Pioneer Hi-Bred International held 17 utility patents that covered the manufacture, use, sale, and offer for sale of its own inbred and hybrid corn seed products.[52] The Plant Patent Act of 1930 (“PPA”) was able to provide limited patent protection to asexually reproduced plants and the Plant Variety Protection Act of 1970 (“PVPA”) allowed for a certain type of patent like protection of sexually reproduced plants.[53] [54] Plant patents are also issued as utility patents under 35 U.S.C. §101, which establishes federal patent protection of new and useful inventions. The Court held that utility patents can be issued for plants and the Plant Variety Protection Act of 1970, and the Plant Patent Act of 1930 are not the exclusive means of receiving federal statutory right to exclude others from reproducing, selling, or using plants or plant varieties.[55]

            The case of J.E.M. AG Supply, Inc. v. Pioneer Hi-Bred International, Inc. arose when J.E.M. AG Supply, Inc. purchased Pioneer Hi-Bred International, Inc.’s patented hybrid corn seeds and resold them without the proper authorization.[56] Pioneer then brought a complaint for patent infringement, alleging that J.E.M. AG Supply had been infringing on one or more of Pioneer’s patents by making, using, selling, or offering for sale the hybrid corn seed.[57] J.E.M. AG Supply argued against the validity of Pioneer’s patents, stating that they were invalid for being outside the scope of 35 U.S.C. §101 and the PPA and PVPA provide the exclusive means of protecting new plants.[58] The Court held that new plant varieties fall within the terms of 35 U.S.C. §101 and the scope is not limited by the PPA or the PVPA.[59] This case established that utility patents can be issued for plants developed through genetic engineering or other breeding techniques and increased the available protection for new plant varieties. With increased protection for new plant varieties companies have a greater incentive to create new seeds. Incentivizing the creation of new plant varieties will likely increase funding for genetic modification research and potentially lead to improving aspects of current plants, such as increasing nutritional value or crop production. These improvements will contribute to fulfilling the increasing food security needs of people around the world.

            Another important case, dealing with the rights plant patent owners hold in relation to their protected varieties, is that of Bowman v. Monsanto Co. E. Al. In this case, a patent holder sued a farmer for infringing on its soybean seed patent.[60] This case dealt with the question of whether a farmer who bought patented seeds may reproduce them through planting and harvesting without the patent holder’s permission.[61] Monsanto invented a genetic modification in a soybean plant that would allow it to be resistant to many herbicides, including Roundup.[62] Bowman was a farmer in Indiana who purchased the patented seeds from Monsanto and used them to grow and sell his entire first crop of the year to a grain elevator.[63] However, with Bowman’s second crop he did not want to purchase the expensive seeds from Monsanto again, since it was a riskier time to grow soybeans, and instead purchased “commodity soybeans” that came from prior harvests of other farmers.[64] After spraying Roundup on this crop, he noticed that a significant amount of the plants were already resistant to the herbicide and he saved those seeds with the favorable trait to use in his second season crop for the following year.[65] Monsanto promptly sued Bowman for patent infringement after discovering this practice.[66] The Court ruled in favor of Monsanto, holding that patent exhaustion did not permit Bowman to reproduce the patented seeds through planting and harvesting without Monsanto’s permission.[67] Although this holding might seem harsh, it is important to remember the policy behind plant patent law and without the incentive for Monsanto to develop a favorable seed, the seed would not be available for Bowman to use. If Bowman were to have spent the time and resources necessary to create a Roundup resistant seed, then he would enjoy the protection afforded by a plant patent, but he merely purchased the Roundup resistant seed from Monsanto and is therefore subject to the rules surrounding Monsanto’s patent.

One case that will likely have a lasting impact on the future of plant patent litigation involves Driscoll’s Inc. strawberries because it illustrates how the owners of plant patents can exercise their rights to coveted plant varieties. The case of Driscoll’s, Inc. v. Cal. Berry Cultivars, LLC arose after the completion of litigation between the University of California Davis (UC Davis), and its former scientists, Shaw and Kirk Lawson.[68] UC Davis alleged Shaw and Kirk took some of the University’s patented plants to Spain for cross-breeding and imported the seeds to California for commercial use.[69] The United States District Court of the Northern District of California held that UC Davis’s patents were infringed when Shaw and Kirk imported the seeds of patented plants.[70] This case is important in cases involving international plant patent litigation and could possibly have an effect on the protection afforded by United States plant patents around the world.

The lawsuit between UC Davis and Shaw led to Driscoll’s Inc. bringing a lawsuit against Shaw for patent infringement of some of the company’s strawberry varieties. Driscoll’s Inc. breeds new berry varieties which are grown by independent farmer growers and then sold exclusively by Driscoll’s.[71] After the UC Davis lawsuit, Driscoll’s claimed that Shaw also used at least four of its patented strawberry varieties at the California Berry Cultivars lab.[72] The court wrote that Driscoll’s failed to adequately plead sufficient facts to find Shaw personally liable for patent infringement but gave Driscoll’s 30 days to amend the dismissed claims. Therefore, questions remain regarding issues of whether United States law extends to plant patent infringement beyond United States territory.[73] Future rulings on international plant patent protection will provide much needed clarity to the extent of protection that is currently afforded to plant patent holders in the United States. These cases are likely to become more prominent after the Driscoll’s case because of the vast markets for plant patents owned by large companies.

Plant patent litigation is likely going to become more prominent in the future, with large companies desiring to protect their intellectual property to secure profits.[74] It is important to be mindful of the implications that any form of litigation within this field has on the community as a whole because plant patents not only affect those involved in the litigation, but also will indirectly affect consumers and food security generally.[75]

Effects on Farmers and Food Sustainability

            The evolution of plant patent litigation has impacted how food is produced and therefore has the potential to greatly affect food sustainability in the United States and around the world. The prima facie case for patent infringement does not require that infringers be aware of the alleged use of the patented material.[76] This opens the door for large companies to go after small farmers for their use of patented seeds, potentially devastating their livelihood while only minorly benefitting the larger companies.[77] Although there is a possibility for severe negative consequences to plant patent litigation, it is important to consider the benefits of enforcing plant patents.

Patent law can provide protection for plant developers and encourage innovation within agriculture.[78] For example, in February of 2022 Inari Agriculture announced it was awarded two patents for methods of editing the genome of corn and soybean seeds.[79] The patents will allow for weed management for the soy plants and insect protection for the corn plants.[80] Examples of these crops include Bacillus thuringiensis (“Bt”) corn which can resist larva trying to feed on it and Roundup Ready soybeans that are engineered to resist the herbicide Roundup.[81] Inari continues to work towards corn and soy crop improvements with goals to jump the yield in those crops by 10% and 20% respectively.[82] Although Inari does not own the patents of the corn and soy plants, they have created a novel method for going into each trait to target the desired gene and confer a specific favorable trait.[83] This method of genetic modification is intended to benefit how farmers buy seed and promote a higher yield of crops, but could there be downsides to providing greater protection to genetically modified crops?

            Diversity among plants is necessary when it comes to food security. Although farmers can benefit from the many varieties of seed patents that are being granted to companies specializing in genetic modification, it is also important to understand the possible negative effects that patents can have on the agricultural industry and food sustainability. For example, a local farmer in India suffered at the hands of patent litigation when he was brought to court over a new potato variety known as FC5.[84] When PepsiCo, the owner of the patented FC5 potato, sued the farmer for patent infringement, he claimed he did not know the potato’s name or that PepsiCo owned the patent for it.[85] The effects of this lawsuit were devastating for the farmer. This case illustrates the dangers of large companies claiming rights in plants or the genetic material of plants around the world, negatively affecting the farmers if they happen to unknowingly use the patented variety of plant.[86] If a farmer accidentally infringes on the patented rights of a plant patent holder by naturally coming across a plant and growing it, they could face serious legal repercussions.

            In addition to the potential harm to farmers by blocking the free use of genetic material if it is patented, critics of plant patents also argue that they contribute to minimizing biodiversity.[87] Minimizing biodiversity decreases the diversity of plant species and increases the dependency of farmers on corporate seed producers.[88] Genetic diversity has continuously increased within agriculture until humans began interfering with the genetic makeup of plants.[89] The repeated cycles of selectively choosing favorable genes has created a significant decrease in the level of variation within the plant population.[90] North America is already dependent on other regions for genetic resources for its major food crops, and other regions are also not able to be self-sufficient due to this decrease in biodiversity among plants.[91] It is important to address these issues when considering the benefits of providing greater amounts of patent protection to the inventors of new plant varieties.


            Plant patents are an often-overlooked area of patent law that will continue to shape the future of food cultivation and farming practices. The increasing enforcement of plant patents by their owners has caused a need for farmers to be more aware of the consequences of infringing on patented plant varieties. Increased litigation over ownership rights to new varieties of plants will likely make it harder for small farmers to sustain their businesses and be able to make a living. This seemingly harsh reality must be compared to the benefits that increased plant patent enforcement could create. Additional protection for patent owners will increase the incentive for them to keep improving the varieties they create. Although the costs of purchasing seeds each year is not what most farmers would prefer, the seeds they purchase have added benefits that could actually increase their profits if the seeds are able to produce a greater yield or increase nutritional value.

            Although plant patents encourage innovation within the area of plant variety creation, it is important to consider the needs of farmers and how much protection should be afforded to the owners of plant patents so as not to create unintended consequences. Despite the comments from critics of plant patents, the new varieties of plants created through genetic modification can contribute to more nutritious plant varieties and help farmers increase the yields of their crops, benefitting them in the long run.

            Every area of law will have some negative aspects, but with further litigation involving plant patents, new varieties of plants could prove to address the global food security needs by creating varieties of plants that allow for crops to grow in harsher environments or for food crops to have greater nutritional value. Overall, plant patents can benefit farmers and help solve the problems of hunger that plague many countries throughout the world.

[1] United States Patent and Trademark Office, (last visited Oct. 30, 2022).

[2] Id.

[3] United States Patent and Trademark Office, (last visited Oct. 30, 2022).

[4] 35 U.S.C. § 171(a).

[5] 35 U.S.C. § 161.

[6] United States Patent and Trademark Office, (last visited Oct. 30, 2022).

[7] Id.

[8] United States Patent and Trademark Office, (last visited Oct. 30, 2022).

[9] International Seed Federation, (last visited Nov. 13, 2022).

[10] MedlinePlus,,cost%20and%20longer%20shelf%20life (last visited Oct. 30, 2022).

[11] Marcelo Pomeranz et al., IP Protection for Vegetatively Reproduced Plants: New Paths Forward, 101 J. Pat. & Trademark Off. Soc’y 374, 388 (2021) (discussing IP enforcement).

[12] Yoder Bros. v. Cal.-Fla. Plant Corp., 537 F.2d 1347, 1350 (5th Cir. 1976).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Marcelo Pomeranz et al., IP Protection for Vegetatively Reproduced Plants: New Paths Forward, 101 J. Pat. & Trademark Off. Soc’y 374, 377 (2021) (discussing the scope of plant patents).

[18] Jennifer Williams Zwagerman, Recognizing Challenges and Opportunities in the Quest to End Hunger, 4 Tex. A&M L. Rev. 315, 325 (2017) (discussing consumer demand of genetically modified food).

[19] Id.

[20] Marcelo Pomeranz et al., IP Protection for Vegetatively Reproduced Plants: New Paths Forward, 101 J. Pat. & Trademark Off. Soc’y 374, 376 (2021) (discussing plant patents in commerce).

[21] Id. at 375.

[22] Diamond v. Chakrabarty, 447 U.S. 303, 311 (1980).

[23] Marcelo Pomeranz et al., IP Protection for Vegetatively Reproduced Plants: New Paths Forward, 101 J. Pat. & Trademark Off. Soc’y 374, 375 (2021) (discussing plant patents in commerce).

[24] Id.

[25] United States Food and Drug Administration, (last visited Oct. 30, 2022).

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Heleigh Bostwick, Plant Patents: How Has This Altered Farming Practices?, Legalzoom (May 02, 2022)

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Marcelo Pomeranz et al., IP Protection for Vegetatively Reproduced Plants: New Paths Forward, 101 J. Pat. & Trademark Off. Soc’y 374, 376 (2021) (discussing plant patents in commerce).

[38] Id.

[39] The Nutrition Source, Harvard, (last visited Nov. 13, 2022).

[40] 35 U.S.C. § 271.

[41] Id.

[42] Malathi Nayak, Driscoll’s Strawberry Dispute Could Sweeten Plant Patent Case Law (2019),

[43] Heleigh Bostwick, Plant Patents: How Has This Altered Farming Practices?, Legalzoom (May 02, 2022)

[44] Imazio Nursery, Inc. v. Dania Greenhouse, No. 92–20755, 1992 WL 551670, at *3 (N.D. Cal. Dec. 16, 1992).

[45] Id. at 3.

[46] Id.

[47] Id. at 10.

[48] Id. at 9.

[49] Id. at 15.

[50] Imazio Nursery, Inc. v. Dania Greenhouse, 69 F.3d 1560, 1569-71 (United States Cir. 1995).

[51] Id.

[52] J.E.M. AG Supply Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 127 (2001).

[53] Plant Patent Act, 35 U.S.C. §161  (1930).

[54] Plant Variety Protection Act, 7 U.S.C. §§ 2321-2582 (1970).

[55] J.E.M. AG Supply Inc. v. Pioneer Hi-Bred International, Inc., 534 U.S. 124, 127 (2001).

[56] Id. at 128.

[57] Id. at 129.

[58] Id. at 132.

[59] Id. at 145.

[60] Bowman v. Monsanto Co., 569 U.S. 278, 282 (2013).

[61] Id. at 280.

[62] Id.

[63] Id. at 282.

[64] Id.

[65] Id.

[66] Id.

[67] Id.

[68] Malathi Nayak, Driscoll’s Strawberry Dispute Could Sweeten Plant Patent Case Law (2019),

[69] Id.

[70] Id.

[71] Driscoll’s, Inc. v. Cal. Berry Cultivars, LLC, No. 2:19–cv–00493–TLN–CKD, 2021 WL 4942877, at *2 (D. E.D. Cal. 2021).

[72] Id.

[73] Malathi Nayak, Driscoll’s Strawberry Dispute Could Sweeten Plant Patent Case Law (2019),

[74] Id.

[75] Id.

[76] 35 U.S.C. § 271.

[77] Tim Schauenberg, Patents on Plants Threaten Farmers (2019),

[78] Ann Hinch, Patents Aim To Boost Corn And Soy Performance By Editing GMO Traits (2022),

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Id.

[84] Tim Schauenberg, Patents on Plants Threaten Farmers (2019),

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Overseas Development Institute, Patenting Plants The Implications for Developing Countries 2 (1993),

[90] Id.

[91] Id.

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