United States Court of Appeals
`for the Federal Circuit
`Appeal from the United States District Court for the
`Eastern District of Texas in No. 6:16-cv-01003-RWS-JDL,
`Judge Robert Schroeder, III.
`Decided: August 12, 2019
`Houston, TX, argued for plaintiff-appellant. Also repre-
`sented by PARKER C. FOLSE, III, IAN B. CROSBY, Seattle,
`Payne & Chorush, LLP, Houston, TX.
` MICHAEL HAWES, Baker Botts, LLP, Houston, TX, ar-
`gued for defendants-appellees. Also represented by
`BECKER, Dallas, TX. Defendant-appellee AT&T Mobility,
`LLC also represented by BRYANT C. BOREN, JR., Palo Alto,


` ______________________
`Before PROST, Chief Judge, REYNA and TARANTO, Circuit
`REYNA, Circuit Judge.
`Iridescent Networks, Inc. sued AT&T Mobility, LLC
`and Ericsson Inc. in the U.S. District Court for the Eastern
`District of Texas for
`infringement of U.S. Patent
`No. 8,036,119. Following claim construction, the parties
`jointly stipulated to noninfringement, and the district
`court entered judgment in favor of AT&T Mobility, LLC
`and Ericsson Inc. Iridescent Networks, Inc. appeals on the
`ground that the district court erred in its construction of
`the term “high quality of service connection.” Because the
`district court correctly construed this term, we affirm.
`I. The ’119 Patent
`Iridescent Networks, Inc. (“Iridescent”) is the assignee
`of U.S. Patent No. 8,036,119 (“the ’119 patent”), entitled
`“System and Method of Providing Bandwidth on Demand.”
`The ’119 patent is directed to a system and method of net-
`work communication that provides guaranteed bandwidth
`on demand for applications that require high bandwidth
`and minimizes data delay and loss during transmission.1
`1 Modern networks, including cellular networks,
`transfer data in small blocks called “packets.” Appellant’s
`Br. 6–7. Transmission of the packets may be affected by
`three factors: bandwidth, latency, and packet loss. “Band-
`width” refers to the maximum data transfer rate of a net-
`work. See id. at 14. “Latency” refers to the time required
`to transmit a packet across a network, with longer latency
`indicating a delay. See id. “Packet loss” refers to the loss
`of packets during transmission. See id. at 7.


`’119 patent col. 1 ll. 19–22, 58–60, col. 3 ll. 46–48, col. 6 ll.
`The ’119 patent discloses that prior art networks trans-
`mit data packets in an ad hoc manner, with each packet
`taking an unpredictable route to its destination. Id. col. 1
`ll. 35–45. This is undesirable because some applications
`delivered on broadband “are very sensitive to any delay
`and . . . any variance in the delay” of packet transmission.
`Id. col. 1 l. 66–col. 2 l. 2. The ’119 patent teaches that some
`applications “are also sensitive to any packets . . . which
`may be lost in the transmission (0.0001% packet loss is the
`preferred quality for video transmission).” Id. col. 2 ll. 2–
`5. The ’119 patent also teaches that some applications re-
`quire significantly more bandwidth than others to provide
`tolerable levels of quality. Id. col. 1 ll. 58–60, col. 3 ll. 31–
`45. The ’119 patent describes video applications as exam-
`ples of such applications and explains that prior art “video
`compression methods vary greatly in the bandwidth they
`require to transport the video in real-time—some solutions
`are as low as 64 kbps up to 300 Mbps.” Id. col. 3 ll. 31–45.
`Figure 3 of the ’119 patent illustrates bandwidth, packet
`loss, and latency requirements of several applications, in-
`cluding different video applications:


`Id. Fig. 3.
`To deal with these parameter-sensitive applications,
`the ’119 patent discloses a system and method for manag-
`ing network traffic routes and bandwidth availability to
`minimize adverse network conditions and to assure that
`the network connection maintains a requested minimum
`level of one of these three parameters. Id. col. 5 l. 64–col.
`6 l. 3. Rather than using existing ad hoc network routes,
`the invention creates custom routes to maximize the avail-
`ability of the required bandwidth, minimize packet loss,
`and reduce latency. Id. col. 5 ll. 64–67; id. col. 6 ll. 57–61.
`According to the ’119 patent, this results in a “high quality”
`network connection with bandwidth “on demand.” Id. col.
`5 ll. 23–29. Applications that do not have minimum net-
`work connection parameter requirements may be routed
`through existing “best-effort” ad hoc network connections
`using “existing network components.” Id. col. 5 ll. 14–20.
`Claim 1 is illustrative and recites:
`1. A method for providing bandwidth on demand
`receiving, by a controller positioned in a
`network, a request for a high quality of ser-
`vice connection supporting any one of a plu-
`rality of one-way and two-way traffic types
`between an originating end-point and a ter-
`minating end-point, wherein the request
`comes from the originating end-point and
`includes at least one of a requested amount
`of bandwidth and a codec;
`determining, by the controller, whether the
`originating end-point is authorized to use
`the requested amount of bandwidth or the
`codec and whether the terminating end-
`point can be reached by the controller;


`directing, by the controller, a portal that is
`positioned in the network and physically
`separate from the controller to allocate lo-
`cal port resources of the portal for the con-
`negotiating, by the controller, to reserve
`far-end resources for the terminating end-
`point; and
`providing, by the controller to the portal,
`routing instructions for traffic correspond-
`ing to the connection so that the traffic is
`directed by the portal based only on the
`routing instructions provided by the con-
`troller, wherein the portal does not perform
`any independent routing on the traffic, and
`wherein the connection extending from the
`originating end-point to the terminating
`end-point is provided by a dedicated bearer
`path that includes a required route sup-
`ported by the portal and dynamically pro-
`visioned by the controller, and wherein
`control paths for the connection are sup-
`ported only between each of the originating
`and terminating end-points and the con-
`troller and between the portal and the con-
`Id. col. 7 l. 43–col. 8 l. 7 (emphasis added).
`The application that led to the ’119 patent is a contin-
`uation of U.S. Application No. 11/743,470 (“the parent ap-
`plication”), which issued as U.S. Patent No. 7,639,612, also
`assigned to Iridescent. Both patents share a substantially
`identical specification.
`During prosecution of the parent application, the ex-
`aminer rejected several claims containing a similar limita-
`tion: “high quality and low latency bandwidth.” J.A. 271,


`369. The examiner explained that this limitation was re-
`jected as not enabled because the specification “d[id] not
`adequately describe how high quality and low latency are
`determined.” J.A. 368–69; see also J.A. 270–71. In re-
`sponse, the applicant amended the claims to replace the re-
`jected term with the “high quality of service connection”
`limitation at issue in this appeal. J.A. 140. The applicant
`argued that Figure 3 and its description supported this
`new claim language:
`As illustrated by the boxed set of applications on
`the left side of Fig. 3, high QoS (quality of service)
`may be viewed in the present application as having
`speeds varying from approximately 1–300 mega-
`bits per second, packet loss requirements that are
`typically about 10-5, and latency requirements that
`are typically less than one second. These are com-
`monly used parameters and, as illustrated in Fig.
`3, often vary somewhat based on the type of appli-
`cation. For example, video conferencing may be
`possible with the listed parameters, while HD
`video multicasting typically has more stringent re-
`quirements in order to be acceptable.
`. . . .
`Accordingly, Applicant submits that the term “high
`quality of service connection” is supported by the
`various connection parameters illustrated for high
`quality of service enabled bandwidth applications
`in Fig. 3.
`J.A. 141. After considering Iridescent’s arguments, the ex-
`aminer withdrew the rejection and allowed the amended
`claims containing the “high quality of service connection”
`limitation to issue.
`II. District Court Proceedings
`On July 11, 2016, Iridescent brought suit against
`AT&T Mobility, LLC and Ericsson Inc. (collectively,


`“AT&T”) for infringement of claims 1, 3–4, 7, and 11 of the
`’119 patent. Claim 1 was the only asserted independent
`claim. During claim construction proceedings, Iridescent
`proposed broadly construing the term “high quality of ser-
`vice connection” to mean “a connection in which one or
`more quality of service connection parameters, including
`bandwidth, latency, and/or packet loss, are assured from
`end-to-end based on the requirements of the application.”
`Iridescent Networks, Inc. v. AT&T Mobility, LLC, No. 6:16-
`CV-01003, 2017 WL 3033400, at *3 (E.D. Tex. July 18,
`2017) (“Claim Construction Order”). The magistrate judge,
`however, largely adopted AT&T’s proposed construction,
`construing the term to mean “a connection that assures
`connection speed of at least approximately one megabit per
`second and, where applicable based on the type of applica-
`tion, packet loss requirements that are about 10-5 and la-
`tency requirements that are less than one second.” Id. at
`*5. The magistrate judge determined that “high quality of
`service connection” is a term of degree that is “not a known
`term of art, but rather a term coined by the patentee.” Id.
`at *4. Relying on the ’119 patent’s intrinsic record, the
`magistrate judge explained that Figure 3 of the ’119 patent
`and Iridescent’s statements during prosecution of the par-
`ent application “serve to provide some standard for meas-
`uring this term of degree.” Id. at *5 (internal quotation
`marks omitted).
`Iridescent subsequently objected to the magistrate
`judge’s construction, raising the same arguments it renews
`on appeal. Iridescent Networks, Inc. v. AT&T Mobility,
`LLC, No. 6:16-CV-01003, 2017 WL 10185852, at *1–3 (E.D.
`Tex. Dec. 1, 2017) (“Order Adopting Constructions”). The
`district judge overruled Iridescent’s objections, determin-
`ing that the magistrate judge’s construction was not clearly
`erroneous or contrary to law. Id. at *3.
`The parties agreed that under the district court’s con-
`struction, AT&T’s accused network products and services
`excluded, and


`noninfringement. On December 18, 2017, the court en-
`tered a final judgment against Iridescent. Iridescent
`timely appealed. We have jurisdiction over this appeal un-
`der 28 U.S.C. § 1295(a)(1).
`Whether a district court’s construction of a claim is cor-
`rect presents a legal question that we review de novo. Info-
`Hold, Inc. v. Applied Media Techs. Corp., 783 F.3d 1262,
`1265 (Fed. Cir. 2015). We review underlying factual find-
`ings related to extrinsic evidence for clear error. E.I. du
`Pont De Nemours & Co. v. Unifrax I LLC, 921 F.3d 1060,
`1067 (Fed. Cir. 2019). When claim construction is based
`solely upon intrinsic evidence, as in this case, our review is
`de novo. Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
`831, 841 (2015).
`Claim construction seeks to ascribe the meaning to a
`claim term as understood by a person of ordinary skill in
`the art at the time of invention. Phillips v. AWH Corp., 415
`F.3d 1303, 1312–14 (Fed. Cir. 2005) (en banc). The mean-
`ing of a term “must be considered in the context of all the
`intrinsic evidence, including the claims, specification, and
`prosecution history.” Biogen Idec, Inc. v. GlaxoSmithKline
`LLC, 713 F.3d 1090, 1094 (Fed. Cir. 2013) (citing Phillips,
`415 F.3d at 1314). The prosecution history, like the speci-
`fication, provides evidence of how the U.S. Patent and
`Trademark Office and the inventor understood the patent.
`Edwards Lifesciences LLC v. Cook Inc., 582 F.3d 1322,
`1327 (Fed. Cir. 2009) (citing Phillips, 415 F.3d at 1317).
`Statements made during prosecution of a parent applica-
`tion are relevant to construing terms in a patent resulting
`from a continuation application if such statements relate
`to the subject matter of the claims being construed. Ormco
`Corp. v. Align Tech., Inc., 498 F.3d 1307, 1314 (Fed. Cir.
`2007); see also E.I. du Pont, 921 F.3d at 1070 (“When a par-
`ent application includes statements involving ‘common
`subject matter’ with the terms at issue, those statements


`are relevant to construction of the terms in the child pa-
`tent.”); Wang Labs., Inc. v. Am. Online, Inc., 197 F.3d 1377,
`1384 (Fed. Cir. 1999) (applying statements from prosecu-
`tion of a parent application where subject matter was com-
`mon to the continuation-in-part application).
`This appeal turns on whether the term “high quality of
`service connection” is a term of degree that is limited to the
`minimum connection parameter requirements disclosed in
`Figure 3 of the ’119 patent. We conclude that it is.
`We begin with the language of the claims. In re Power
`Integrations, Inc., 884 F.3d 1370, 1376 (Fed. Cir. 2018) (cit-
`ing Amgen Inc. v. Hoechst Marion Roussel, Inc., 457 F.3d
`1293, 1301 (Fed. Cir. 2006)). Here, the district court found
`that “high quality of service connection” is a coined term
`that has no ordinary meaning in the industry. Claim Con-
`struction Order, 2017 WL 3033400, at *4; Order Adopting
`Constructions, 2017 WL 10185852, at *3. We agree that
`the claim language is not sufficiently clear on its face to
`provide guidance to a person of ordinary skill in the art as
`to the meaning of the term “high quality of service connec-
`tion.” Although every network connection has some degree
`of quality of service, Reply Br. 2–3, the claims expressly
`require the connection to provide high quality of service.
`The claim language, however, is silent as to what amount
`of quality is sufficient to be “high.” We therefore look first
`to the specification, followed by the prosecution history, to
`determine the meaning of the term “high quality of service
`As noted above, the applicant of the ’119 patent relied
`on Figure 3 during prosecution to support an amendment
`that gave rise to the term “high quality of service connec-
`tion.” Figure 3 indicates minimum requirements for con-
`nection speed, packet loss, and latency. Figure 3 shows a
`box labeled “High QoS” (“Quality of Service”) that is drawn
`around some, but not all, listed applications. ’119 patent
`Fig. 3. The applications placed within this box have


`connection parameter requirements consistent with the
`district court’s construction for the disputed term. For ex-
`ample, the written description explains that “[t]hese real
`time critical applications are very sensitive to any de-
`lay[,] . . . any variance in the delay[,]. . . . [and] any packets
`(or frames) which may be lost in the transmission (0.0001%
`packet loss is the preferred quality for video transmis-
`sion).” Id. at col. 1 l. 66–col. 2 l. 5. One application (“Ojo
`Video Call”) and two network transmission line technolo-
`gies (“DSL” and “Dial-up”) are placed outside the “High
`QoS” box. Id. Fig. 3. The Ojo Video Call application is
`shown to have lower minimum connection requirements
`than the applications within the box. Id. Figure 3 and the
`written description, therefore, imply that a “high quality of
`service connection” involves minimum service parameters
`required by the applications within the “High QoS” box.
`This conclusion is consistent with the prosecution history
`of the ’119 patent.
`During prosecution of the parent application, the appli-
`cant argued that “the various connection parameters illus-
`trated for high quality of service enabled bandwidth
`applications in Fig. 3” supported the term “high quality of
`service connection.” J.A. 141. The applicant stated that
`the term “may be viewed in the present application as hav-
`ing speeds varying from approximately 1–300 megabits per
`second, packet loss requirements that are typically about
`10-5, and latency requirements that are typically less than
`one second,” which are the illustrated parameters for the
`applications within the “High QoS” box in Figure 3. Id.
`Thus, the applicant relied on the minimum connection pa-
`rameter requirements described in Figure 3 to overcome
`the examiner’s § 112 enablement rejection.
`Iridescent argues that the term “high quality of service
`connection” is a mere requirement that the connection as-
`sure the level of quality that meets the service parameter
`needs of a particular service or application. Appellant’s Br.


`14. Iridescent raises three primary arguments in support
`of its proposed construction. We address each in turn.
`First, Iridescent contends that the term serves to dis-
`tinguish a high quality of service connection from a prior
`art “best-effort” connection that does not guarantee any
`level of quality. Appellant’s Br. 13–15, 22. Iridescent
`points to the ’119 patent’s disclosure that different applica-
`tions have varying connection parameter requirements,
`and argues that “there are no hard-and-fast numerical re-
`quirements for the quality of service parameters.” Id. at
`15. This argument, however, contradicts the written de-
`scription and Figure 3 of the ’119 patent. If, as Iridescent
`contends, a “high quality of service connection” is one that
`provides only some assurance of required quality of connec-
`tion, then a connection that meets the requirements of all
`the applications listed in Figure 3 would fall within that
`definition. Yet Figure 3 excludes the Ojo Video Call appli-
`cation from the box identified as “High QoS,” even though
`that application also has specific connection parameter re-
`quirements of less than 1 megabit per second in bandwidth,
`packet loss of 10-5, and latency delay of less than 400 milli-
`seconds—parameters that would satisfy Iridescent’s pro-
`posed construction of “high quality of service connection.”
`’119 patent Fig. 3.
`Iridescent argues that Figure 3’s exclusion of the Ojo
`Video Call application from the “High QoS” box demon-
`strates only that a prior art best-effort connection is suffi-
`cient to meet that application’s connection requirements.
`Reply Br. 6. The ’119 patent, however, teaches that a best-
`effort connection provides no assurance of any amount of
`quality. See ’119 patent col. 1 ll. 23–60 (detailing the ad
`hoc nature of prior art network connections); id. col. 3 ll. 6–
`22, 46–48 (distinguishing “best-effort internet” from “guar-
`anteed high bandwidth” connections); see also Appellant’s
`Br. 7, 13. Thus, a best-effort connection may not always
`meet the connection requirements of the Ojo Video Call ap-
`plication. Rather, Figure 3 excludes that application from


`the “High QoS” box because its connection requirements
`are lower than what the patentee intended to be covered by
`the term “high quality of service connection.”
`The written description demonstrates that the inven-
`tor knew how to describe quality assurance. For example,
`the written description teaches that prior art Multi-Proto-
`col Label Switching technology provided “packet quality as-
`surance.” ’119 patent col. 2 ll. 6–8, 43–47. The written
`description also discloses that when the prior art “IEEE
`802.1p” standard is utilized, “[s]ervices are delivered with
`assurance.” Id. col. 3 ll. 16–19. By contrast, the claims
`here require a “high quality of service connection.” When
`read in the context of the written description, the inventor’s
`decision to claim a connection that provides high quality of
`service instead of a connection that provides assured qual-
`ity of service informs a person of ordinary skill in the art
`that the claims require something more than mere assur-
`ance of quality.
`Iridescent’s statements during prosecution of the par-
`ent application also belie Iridescent’s attempt to equate
`“high” quality of service with “assured” quality of service.
`In response to the examiner’s § 112 rejection, Iridescent ar-
`gued that “high QoS (quality of service) may be viewed in
`the present application as having speeds varying from ap-
`proximately 1–300 megabits per second, packet loss re-
`quirements that are typically about 10-5, and latency
`requirements that are typically less than one second.
`These are commonly used parameters . . . .” J.A. 141. This
`language focuses on the objective characteristics of the
`quality of the connection rather than on whether any
`amount of quality is assured. In view of the intrinsic rec-
`ord, we are not persuaded that the term “high quality of
`service connection” equates with assurance of quality.
`Second, Iridescent contends that the prosecution his-
`tory is irrelevant to the claim construction question be-
`cause there is no clear and unmistakable disavowal of


`claim scope. Appellant’s Br. 12. We disagree. We have
`explained that “[a]ny explanation, elaboration, or qualifi-
`cation presented by the inventor during patent examina-
`tion is relevant, for the role of claim construction is to
`‘capture the scope of the actual invention’ that is disclosed,
`described, and patented.” Fenner Invs., Ltd. v. Cellco
`P’ship, 778 F.3d 1320, 1323 (Fed. Cir. 2015) (quoting Re-
`tractable Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d
`1296, 1305 (Fed. Cir. 2011)); see also Aptalis Pharmatech,
`Inc. v. Apotex Inc., 718 F. App’x 965, 971 (Fed. Cir. 2018)
`(relying on the prosecution history to inform a claim con-
`struction analysis without finding a disavowal of claim
`scope). Although the prosecution history may not in some
`cases be as clear a guide as the specification, it nonetheless
`“can often inform the meaning of the claim language by
`demonstrating how the inventor understood the invention
`and whether the inventor limited the invention in the
`course of prosecution, making the claim scope narrower
`than it would otherwise be.” Phillips, 415 F.3d at 1317.
`Iridescent’s reliance on 3M Innovative Properties Co. v.
`Tredegar Corp., 725 F.3d 1315 (Fed. Cir. 2013), is mis-
`placed. In 3M, we held that where there is no clear disa-
`vowal, “the ordinary and customary meaning of the claim
`term will be given its full effect.” 725 F.3d at 1326. The
`question here, however, is not whether Iridescent nar-
`rowed the scope of the disputed term during prosecution
`from its full ordinary and customary meaning. Rather, be-
`cause the disputed term is a coined term, meaning it has
`no ordinary and customary meaning, the question is
`whether the intrinsic evidence provides objective bounda-
`ries to the scope of the term. Interval Licensing LLC v.
`AOL, Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014). In these
`circumstances, where there is no clear ordinary and cus-
`tomary meaning of a coined term of degree, we may look to
`the prosecution history for guidance without having to first
`find a clear and unmistakable disavowal.


`Third, Iridescent contends that even if its statements
`during prosecution may be considered, they are still irrele-
`vant to the construction of the disputed term because Iri-
`descent made those statements
`in response to an
`enablement rejection. Appellant’s Br. 27–29; Reply Br. 10–
`11. Iridescent argues that unlike an indefiniteness rejec-
`tion, an enablement rejection is not issued “to force the ap-
`plicant to define the metes and bounds of the claim.”
`Appellant’s Br. 27. This is not correct. It is long-settled
`that “[e]nablement serves the dual function in the patent
`system of ensuring adequate disclosure of the claimed in-
`vention and of preventing claims broader than the dis-
`closed invention. This important doctrine prevents both
`inadequate disclosure of an invention and overbroad claim-
`ing that might otherwise attempt to cover more than was
`actually invented.” MagSil Corp. v. Hitachi Glob. Storage
`Techs., Inc., 687 F.3d 1377, 1380–81 (Fed. Cir. 2012) (inter-
`nal citation omitted); see also Nat’l Recovery Techs., Inc. v.
`Magnetic Separation Sys., Inc., 166 F.3d 1190, 1195–96
`(Fed. Cir. 1999). Thus, Iridescent’s statements made to
`overcome the examiner’s enablement rejection inform the
`claim construction analysis by demonstrating how Irides-
`cent understood the scope of the disputed term.
`Iridescent raises other arguments that we find unper-
`suasive. For example, Iridescent argues that the district
`court’s determination that the disputed term is a term of
`degree rests on an erroneous finding that the ’119 patent
`discloses a third “quality of service” connection. Appel-
`lant’s Br. 19–24. Iridescent asserts that the ’119 patent
`discloses only two connection types—best-effort and high
`quality of service connections—and “[t]here is no question
`of degree between” the two. Id. at 22.
`We agree that “quality of service” is not a connection
`type, but a characteristic of any network connection, much
`like “height” is a characteristic of any human being. Iri-
`descent is mistaken, however, that the district court mis-
`read “quality of service” to be a third connection type, or


`that such a misreading is a necessary predicate to deter-
`mining that the term “high quality of service connection” is
`a term of degree. That “quality of service” is a characteris-
`tic of any network connection says nothing about the level
`of quality of service that connection provides. The district
`court was thus correct to look to the specification and the
`prosecution history for disclosure of what constitutes high
`quality of service. Because Figure 3 and the applicant’s
`prosecution history statements disclose the disputed term’s
`scope, the district court’s analysis was correct.
`Iridescent also argues that this court’s precedent fore-
`closes limiting the term “high” to numerical values. We
`disagree. In each case on which Iridescent relies, this court
`concluded that importing numerical limits into the inde-
`pendent claim at issue would have rendered a dependent
`claim meaningless. See Honeywell Int’l Inc. v. Universal
`Avionics Sys. Corp., 488 F.3d 982, 993–94 (Fed. Cir. 2007);
`In re Cruciferous Sprout Litig., 301 F.3d 1343, 1348–49
`(Fed. Cir. 2002); Am. Seating Co. v. USSC Grp., Inc., 91 F.
`App’x 669, 676 (Fed. Cir. 2004). That is not a concern here.
`Additionally, in American Seating, the claim language it-
`self defined the disputed term. 91 F. App’x at 675. By con-
`trast, the claims here provide no clear meaning or
`definition of “high quality of service connection.”
`We have considered Iridescent’s remaining arguments
`and find them unpersuasive. We hold that the correct con-
`struction of “high quality of service connection” means “a
`connection that assures connection speed of at least ap-
`proximately one megabit per second and, where applicable
`based on the type of application, packet loss requirements
`that are about 10-5 and latency requirements that are less
`than one second.” We therefore affirm the district court’s


`No costs.

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