Interactive Gift Express, Inc. v. Compuserve Inc.

A combined petition for panel rehearing and rehearing en banc was filed by Broderbund Software, Inc. ("Broderbund") and Intuit, Inc. ("Intuit"), and joined in by Waldenbooks, The Library Corporation, Internet Software, Inc. (now known as Internet Shopping Network, Inc.), Compuserve, Inc., and Telebase Systems, Inc. (now known as CDnow, Inc.). A response thereto was invited by the court and filed by Interactive Gift Express, Inc. (now known as E-Data, Inc.) ("IGE"). Leave to file a reply to IGE's response was requested by, and granted to, Broderbund and Intuit, and a reply was filed. Thereafter, these filings were referred to the merits panel that heard the appeal and then referred, along with the panel's new opinion, to the circuit judges who are in regular active service.

Upon consideration thereof,

(1) the petition for panel rehearing is granted for the limited purpose of addressing the issues of waiver and judicial estoppel, and

(2) the petition for rehearing en banc be, and the same hereby is, denied, and

(3) the previous opinion of the court in this appeal, issued on November 3, 2000 and reported at 231 F.3d 859, is withdrawn. The new opinion accompanies this order.

Before Schall, Circuit Judge, Plager, Senior Circuit Judge, and Linn, Circuit Judge.**

Interactive Gift Express, Inc. ("IGE"), now known as E-Data, Corp., seeks review of a judgment of noninfringement of U.S. Patent No. 4,528,643 ("Freeny patent") entered by the United States District Court for the Southern District of New York on March 12, 1999. Because the district court erred as a matter of law in the construction of each of the five claim terms giving rise to IGE's noninfringement stipulation, we vacate and remand.

The petition for panel rehearing was granted to address issues of waiver and judicial estoppel, and we have modified our original opinion accordingly. The changes take note of IGE's binding positions and acknowledge our doctrines of waiver and judicial estoppel, but do not alter our disposition of this case.

The Freeny patent is directed to a system for reproducing information in material objects at point of sale locations. Prior to the invention disclosed in the Freeny patent, information disseminated to consumers in material objects, such as tape recordings, books, and records, was recorded onto the material objects at a central manufacturing facility, and the material objects were then shipped to remote retail locations for sale. These systems required centralized manufacturing facilities for reproducing the information in the material objects and extended distribution networks for distributing the material objects, once made, to various point of sale locations for sale to consumers. The manufacturing facilities and distribution networks represented substantial costs ultimately borne by consumers.

In such prior art systems, manufacturers had to estimate consumer demand for each new information-specific product and had to manufacture and ship quantities of material objects sufficient to meet the estimated demand at each retail location. Retailers had to make similar estimates to determine how many material objects for each information-specific product to order and keep in inventory. A low estimate of consumer demand resulted in unsatisfied customers and lost sales. On the other hand, high estimates left some material objects unsold, resulting in unrecouped costs.

To overcome these and other related problems, the Freeny patent provides a system for the distributed manufacture and sale of material objects at multiple locations directly serving consumers. The system includes a central control station, referred to in the Freeny patent as an "information control machine" or "ICM," and a plurality of remotely located manufacturing stations referred to as "information manufacturing machines" or "IMMs." At each IMM, a consumer selects the desired information and initiates a communication from the IMM to

the ICM to gain authorization for copying of the selected information onto a desired type of material object. The consumer then waits for the IMM to receive the authorization, after which the selected information is copied by the IMM onto a blank material object. The invention can be used with a wide variety of information and material objects, such as music on cassettes and text on paper. Irrespective of the type of information and material object, the invention requires the purchase of the material object by the consumer, and the material object must contain

information that was copied onto it at the point of sale location.

According to the Freeny patent, the information can be copied onto a selected type of material object whenever a consumer requests it. Consumer demand thus can be met without having to rely on manufacturing estimates and without having to bear the costs associated with overproduction, inventory control, shipping, and warehousing. The Freeny system also provides "for reproducing or manufacturing material objects at point of sale locations only with the permission of the owner of the information, thereby assuring that the owner of the information will be compensated in connection with such reproduction." Freeny patent, col. 4, ll. 8-13. The Freeny patent, in the description of the background of the invention, states that the invention overcomes the problem of "how to manufacture and distribute material objects embodying . . . information in an economical and efficient manner and in a manner which virtually assures that the owners of [the] information will be compensated in connection with the sale of such material objects." Freeny patent, col. 3, ll. 28-33.

Claim 1 of the Freeny patent is representative of the method claims at issue and defines the invention as follows:

1. A method for reproducing information in material objects utilizing information manufacturing machines located at point of sale locations, comprising the steps of:

providing from a source remotely located with respect to the information manufacturing machine the information to be reproduced to the information manufacturing machine, each information being uniquely identified by a catalog code;

providing a request reproduction code including a catalog code uniquely identifying the information to be reproduced to the information manufacturing machine requesting to reproduce certain information identified by the catalog code in a material object;

providing an authorization code at the information manufacturing machine authorizing the reproduction of the information identified by the catalog code included in the request reproduction code; and

receiving the request reproduction code and the authorization code at the information manufacturing machine and reproducing in a material object the information identified by the catalog code included in the request reproduction code in response to the authorization code authorizing such reproduction.

Freeny patent, col. 28, ll. 22-47.

Exemplary of the apparatus claims is claim 37, which reads as follows:

37. An apparatus for reproducing information in material objects at point of sale locations, comprising:an information manufacturing machine located at a point of sale location for reproducing information in material objects, each information to be reproduced being uniquely identified by a catalog code and each information being received from a source remotely located with respect to the information manufacturing machine and each information being stored in the information manufacturing machine, the information manufacturing machine receiving a request reproduction code including a catalog code uniquely identifying the information to be reproduced and being adapted to provide an authorization code including the catalog code included in the request reproduction code, and the information manufacturing machine being adapted to reproduce the information identified by the catalog code in a material object in response to receiving the authorization code.

Freeny patent, col. 36, ll. 45-64.

The defendants are computer software and publishing companies and one retail bookstore. Plaintiff contends that the computer software and publishing companies infringe the Freeny patent by selling software or documents "online," that is, over the Internet and the World Wide Web. Plaintiff maintains that the retail bookstore infringes the Freeny patent by selling books that include a CD-ROM containing encrypted computer applications, access to which is not possible until the consumer retrieves a password. Plaintiff, through the construction it proffered in its Revised Claim Construction Report of November 12, 1996, has effectively conceded that none of the defendants are direct infringers.

With the one exception of the retail bookstore defendant, all of the accused systems distribute information directly to consumers' personal computers without using an intermediate retail location, the consumer instead dealing directly with a web-site over the Internet. Information is distributed and downloaded onto a consumer's own internal hard disk or other storage device without the purchase of any material object such as a floppy disk or CD-ROM.

In the case of the CD-ROMs sold to consumers by the retail bookstore defendant, if a consumer is interested in one or more of the encrypted programs contained on the CD-ROM, a password must first be requested. The password enables the consumer to decrypt the desired program and copy it for later use. As with the other accused systems, the CD-ROM product avoids the need for a consumer to purchase a material object, such as a floppy disk or a CD-ROM, because the decrypted data is copied directly onto the consumer's own storage device.

The district court limited discovery to claim construction matters and ordered IGE to file a binding claim construction report. There are five disputed claim limitations. IGE's binding report dealt with four of them: "point of sale location" (referred to in the report as "point of sale"); "material object"; "information manufacturing machine"; and "authorization code." The fifth is termed the "real-time transactions" limitation, arising out of an alleged requirement that certain steps of claim 1 be performed in order, and requiring that the information be provided to and stored at the IMM before the consumer requests it. Because there is no claim term directly associated with this "limitation" and IGE did not consider it to be a limitation, IGE did not provide an entry for it in its binding report. The report identified these four terms, and others not relevant to this appeal, as "technical terms . . . which are used differently from the normal usage in everyday language, but are defined in the patent as originally filed."

For each of these terms, the binding report provided what IGE termed a "simple definition" and also provided the location in the patent specification where these terms were defined. This information is as follows: (1) the simple definition of "point of sale" is "[t]he place at which the consumer or purchaser makes the purchase," and it is defined in the specification at "Col. 5, Lines 47-50"; (2) the simple definition of "material object" is "[a] paper with printed information, or a recording on a floppy disk, hard drive, or tape etc.," and it is defined in the specification at "Col. 4, Lines 36-59"; (3) the simple definition of "information manufacturing machine" is "[t]he computer system used by the consumer to make the point of sale purchase," and it is defined in the specification at "Col. 5, Lines 32-47, etc."; and (4) the simple definition of "authorization code" is "[t]his code is [sic] enables the information manufacturing machine (the consumers [sic consumer's] computer system) to reproduce the electronic data in a material object," and it is defined in the specification at "Col. 6, Lines 1-23."

After receiving IGE's report and the parties' claim construction briefs, the court, on May 15, 1998, rendered an opinion and order construing the claims of the Freeny patent. See Interactive Gift Express, Inc. v. Compuserve Inc., 47 USPQ2d 1797 (S.D.N.Y. 1998). The district court did not address invalidity. The district court's opinion contained a thorough and careful analysis of the Freeny patent and the relevant legal standards for claim construction. See id. The district court devoted most of its lengthy claim construction to the five disputed claim limitations. See id.

After the district court provided its claim construction of the five above-noted claim limitations, the parties entered into a Stipulated Order and Judgment ("Judgment"). See Interactive Gift Express, Inc. v. Compuserve Inc., No. 95-CV-6871 (S.D.N.Y. Mar. 12, 1999) (judgment and order) ("IGE Judgment"). The district court made no findings of fact regarding infringement. In the Judgment, IGE conceded that none of the defendants had in the past infringed, or was then infringing, any claim of the Freeny patent as construed by the court. See IGE Judgment, slip op. at 1. The Judgment stated specifically that "no method, system, or apparatus of any defendant includes any" of the five disputed claim limitations. Id.

In appealing the judgment, IGE challenges the district court's construction of each of the disputed claim limitations. Counsel for IGE acknowledged during the oral hearing before this court that in light of the stipulation entered into by the parties as part of the Judgment, and in view of the fact that the parties have stipulated not to what the accused methods or products are but only to what they are not, IGE must show that the district court was wrong in its construction of all five of the disputed claim limitations to prevail in this appeal.

A finding of noninfringement requires a two-step analytical approach. First, the claims of the patent must be construed to determine their scope. See Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576, 27 USPQ2d 1836, 1839 (Fed. Cir. 1993). Second, a determination must be made as to whether the properly construed claims read on the accused device. See id. In this case, IGE has conceded the second part of the infringement analysis, leaving only the question of the propriety of the district court's claim construction in issue. Claim construction is a matter of law and is reviewed de novo on appeal. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed. Cir. 1998) (en banc).

In this opinion, we focus on the construction of the five disputed claim limitations as provided in the conclusions of the district court's claim construction, and upon which IGE's stipulations in the Judgment are premised. In construing claims, the analytical focus must begin and remain centered on the language of the claims themselves, for it is that language that the patentee chose to use to "particularly point[ ] out and distinctly claim[ ] the subject matter which the patentee regards as his invention." 35 U.S.C. § 112, ¶ 2.

"It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language." Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed. Cir. 1996) (citation omitted). All intrinsic evidence is not equal however. See id. at 1582, 39 USPQ2d at 1576-77 (delineating a hierarchy among the intrinsic evidence).

First, we look to the claim language. See id.; Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999) ("The starting point for any claim construction must be the claims themselves."); Bell Communications Research, Inc. v. Vitalink Communications Corp., 55 F.3d 615, 620, 34 USPQ2d 1816, 1819 (Fed. Cir. 1995) (noting first the mandate to consult the claims). Then we look to the rest of the intrinsic evidence, beginning with the specification and concluding with the prosecution history, if in evidence. See Vitronics, 90 F.3d at 1582, 39 USPQ2d at 1576-77 (delineating this order); Markman v. Westview Instruments, Inc., 52 F.3d 967, 979, 34 USPQ2d 1321, 1329 (Fed. Cir. 1995) ("Claims must be read in view of the specification, of which they are a part."), aff'd, 517 U.S. 370 (1996); Bell Communications, 55 F.3d at 620, 34 USPQ2d at 1819 (noting first the mandate to consult the claims, followed by inspection of the rest of the specification).

If the claim language is clear on its face, then our consideration of the rest of the intrinsic evidence is restricted to determining if a deviation from the clear language of the claims is specified. A deviation may be necessary if "a patentee [has chosen] to be his own lexicographer and use terms in a manner other than their ordinary meaning." Vitronics, 90 F.3d at 1582, 39 USPQ2d at 1576. A deviation may also be necessary if a patentee has "relinquished [a] potential claim construction in an amendment to the claim or in an argument to overcome or distinguish a reference." Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979, 52 USPQ2d 1109, 1113 (Fed. Cir. 1999). If however the claim language is not clear on its face, then our consideration of the rest of the intrinsic evidence is directed to resolving, if possible, the lack of clarity.

Resort to the specification is particularly important in this case because IGE has conceded that the claim limitations in dispute include technical terms that are defined in the specification. However, in looking to the specification to construe claim terms, care must be taken to avoid reading "limitations appearing in the specification . . . into [the] claims." Intervet Am., Inc. v. Kee-Vet Lab., Inc., 887 F.2d 1050, 1053, 12 USPQ2d 1474, 1476 (Fed. Cir. 1989). "We recognize that there is sometimes a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification." Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186, 48 USPQ2d 1001, 1005 (Fed. Cir. 1998). In locating this "fine line" it is useful to remember that we look "to the specification to ascertain the meaning of the claim term as it is used by the inventor in the context of the entirety of his invention," and not merely to limit a claim term. Id. at 1187, 48 USPQ2d at 1005.

If the meaning of the claim limitations is apparent from the totality of the intrinsic evidence, then the claim has been construed. If however a claim limitation is still not clear, we may look to extrinsic evidence to help resolve the lack of clarity.1 Relying on extrinsic evidence to construe a claim is "proper only when the claim language remains genuinely ambiguous after consideration of the intrinsic evidence." Bell & Howell Document Mgmt. Prods. Co. v. Altek Sys., 132 F.3d 701, 706, 45 USPQ2d 1033, 1038 (Fed. Cir. 1997); see also Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1346, 54 USPQ2d 1299, 1303 (Fed. Cir. 2000); Key Pharms. v. Hercon Lab. Corp., 161 F.3d 709, 716, 48 USPQ2d 1911, 1917 (Fed. Cir. 1998); Vitronics, 90 F.3d at 1583-84, 39 USPQ2d at 1577-78. "Such instances will rarely, if ever, occur." Vitronics, 90 F.3d at 1585, 39 USPQ2d at 1579.

Extrinsic evidence may always be consulted, however, to assist in understanding the underlying technology. See Pitney Bowes, 182 F.3d at 1309, 51 USPQ2d at 1168 ("[C]onsultation of extrinsic evidence is particularly appropriate to ensure that [a judge's] understanding of the technical aspects of the patent is not entirely at variance with the understanding of one skilled in the art."); Mantech Envtl. Corp. v. Hudson Envtl. Servs., Inc., 152 F.3d 1368, 1373, 47 USPQ2d 1732, 1737 (Fed. Cir. 1998); Vitronics, 90 F.3d at 1585, 39 USPQ2d at 1579 ("Had the district court relied on the expert testimony and other extrinsic evidence solely to help it understand the underlying technology, we could not say the district court was in error."). But extrinsic evidence may never be used "for the purpose of varying or contradicting the terms in the claims." Markman, 52 F.3d at 981, 34 USPQ2d at 1331.

Throughout the construction process, it is important to bear in mind that the viewing glass through which the claims are construed is that of a person skilled in the art. See Intellicall, Inc. v. Phonometrics, Inc., 952 F.2d 1384, 1387, 21 USPQ2d 1383, 1386 (Fed. Cir. 1992); ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1579, 6 USPQ2d 1557, 1560 (Fed. Cir. 1988); see also Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1578, 38 USPQ2d 1126, 1129 (Fed. Cir. 1996) (stating that the court assigns a claim term the meaning that it would be given by persons experienced in the field of invention).

Additionally, a party's claim construction position on appeal may be subject to waiver or judicial estoppel. These doctrines are explained below in the section entitled "Waiver and Judicial Estoppel."

Although the district court provided a thorough and accurate description of the patent and of the relevant law, its claim construction impermissibly read limitations from the specification into each of the five disputed claim limitations. We treat each of these disputed claim limitations below, and then address the issues of waiver and judicial estoppel.

The district court made several findings with regard to the construction of the expression "point of sale location." We address these findings below, agreeing with some and disagreeing with others.

In response to the district court's request for binding definitions of the disputed terms, described earlier, IGE identified the passage at column 5, lines 47-50 as defining a point of sale location. That passage states that a point of sale location is "a location where a consumer goes to purchase material objects embodying predetermined or preselected information." Freeny patent, col. 5, ll. 47-50. The district court held this definition to be correct, and we agree. Clear support is provided for this definition in the Freeny patent specification at column 5, lines 47-50.

The district court further held that, although point of sale locations are not restricted to retail locations, a home is not a point of sale location. See Interactive Gift Express, 47 USPQ2d at 1810 & n.9. IGE contends that the district court was wrong. IGE urges that a point of sale location is simply the location at which the consumer makes or effects a purchase. IGE argues that the concept of a home being a point of sale location is not new, citing home shopping networks, pay-per-view cable television, and home Internet shopping. IGE further argues that the

specification defines a home as a point of sale location and discloses at least two embodiments in which the home is a point of sale location. IGE also argues that the prosecution history lists several transmission systems that could be adapted for use in the home. The appellees respond that IGE's asserted definition before the district court precludes a home from being a point of sale location, and that any references in the specification to homes as point of sale locations cannot overcome this definition. The appellees further respond that the rest of the intrinsic evidence, as well as the extrinsic evidence of standard dictionaries and references, supports the district court's construction.

We agree with IGE's position that a home is not precluded from being a point of sale location. Looking first, as we must, to the claim language itself, we find nothing precluding a home from being a point of sale location. See Vitronics, 90 F.3d at 1582, 39 USPQ2d at 1576. Except for requiring that an IMM be present, the independent claims are silent regarding the possible venues of a point of sale location.

Looking next to the specification, see id. at 1582, 39 USPQ2d at 1577, we acknowledge the great likelihood that a point of sale location will not be a home, given that: (1) IGE's asserted definition, with which we agree, requires that a consumer go to a point of sale location "to purchase material objects," Freeny patent, col. 5, ll. 48-49; and (2) the specification requires, and IGE does not dispute, that the IMM be located at the point of sale location, see, e.g., Freeny patent, col. 5, ll. 32-33, col. 12, ll. 66-67. However, IGE's asserted definition, premised on the specification at column 5, lines 48 and 49, does not preclude a home from serving as a point of sale location, and the specification further describes a vending machine embodiment that could be utilized in a home. See Freeny patent, cols. 26-27. This intrinsic evidence unambiguously allows a home to serve as a point of sale location. Therefore, it is unnecessary to address IGE's arguments alleging that the prosecution history additionally supports our conclusion.

Given the lack of ambiguity in the intrinsic evidence, it would be improper to address any of the parties' arguments relating to extrinsic evidence, such as other examples of point of sale locations and standard references. See Vitronics, 90 F.3d at 1583, 39 USPQ2d at 1577 ("In those cases where the public record unambiguously describes the scope of the patented invention, reliance on any extrinsic evidence is improper.").

The district court also held that a point of sale location "must have . . . at least two blank material objects." Interactive Gift Express, 47 USPQ2d at 1810. IGE argues that this limitation is not recited in the claims or required by the specification and has improperly been read into the claims from a particular embodiment. The appellees respond that the specification supports the requirement that there be two or more blank material objects. We agree with IGE that a point of sale location need not have two blank material objects.

We begin, as we must, with the language of the claims. See Vitronics, 90 F.3d at 1582, 39 USPQ2d at 1576 (stating that construction begins with the claim language). The claim language specifically recites "reproducing in a material object." Freeny patent, col. 28, l. 44 (claim 1; emphasis added); id. at col. 36, l. 63 (claim 37; emphasis added). Although the single element of claim 37 initially mentions material objects in the plural, it is later modified by a singular reference and does not require more than one material object. Compare id. at col. 36, l. 49 with id. at l. 63. The preambles of the independent claims similarly recite plural "material objects," but they do so in the context of multiple IMMs and/or multiple point of sale locations. See, e.g., id. at col. 28, ll. 22-24 (claim 1); id. at col. 36, ll. 45-46 (claim 37). The preambles do not require multiple material objects at each point of sale location. Given the preambles' generality, we need not consider whether they are more than statements of intended use.

We look next to the specification. See Vitronics, 90 F.3d at 1582, 39 USPQ2d at 1577. We note that the district court based the requirement of two blank material objects on a passage in the specification stating that "[e]ach point of sale location has . . . a plurality of blank material objects." See Interactive Gift Express, 47 USPQ2d at 1805 (citing to the Freeny patent, col. 12, ll. 66-68). From the passage itself, it is unclear whether this isolated statement in the specification is intended to be a general statement or to be limited to a particular embodiment. However, there is nothing in the rest of the specification supporting the position that a point of sale location is defined as having at least two blank material objects. To the contrary, it is clear that the IMM requires only a single material object to fully process a consumer's request. See, e.g., Freeny patent, col. 5, ll. 21-31 ("Each [IMM] 14 is constructed to . . . provide . . . information . . . to a reproduction unit 24 which is adapted to reproduce received information in a material object.") (underlining added). Further, the opening sentence of the background section of the Freeny patent states that "[t]he present invention relates generally to a system for reproducing information in a material object." Freeny patent, col. 1, ll. 7-8 (emphasis added).

Accordingly, we hold that the entirety of the specification dictates that the reference to a plurality be understood to refer to a "supply" of blank material objects, and that the supply can consist of one material object. See Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1345, 47 USPQ2d 1418, 1425 (Fed. Cir. 1998) (basing the claim construction on the entire written description, despite an isolated passage in apparent conflict).

The district court also held that a point of sale location must have blank material objects "available for sale to consumers." Interactive Gift Express, 47 USPQ2d at 1810. IGE argues that this limitation is not recited in the claim or required by the specification and has improperly been read into the claim from a particular embodiment. Notably, the appellees do not argue in defense of this limitation. We agree with IGE that a point of sale location need not have any blank material objects separately for sale.

Looking again to the claims, nothing in the claim language itself requires that blanks be for sale. The claims require only that information be reproduced in a material object. See, e.g., Freeny patent, col. 28, ll. 22-23 (preamble to claim 1) and 44-45 (step four of claim 1); id. at col. 36, ll. 45-46 (preamble to claim 37) and ll. 62-63 (single element of claim 37). Looking next to the specification, we note that nothing in IGE's asserted definition, derived from the Freeny patent at column 5, lines 47-50, requires that blanks be for sale. That definition refers exclusively to the purchase of non-blank material objects, that is, to "material objects embodying . . . information." Id.

The district court based its conclusion that blanks must be for sale on the passage at column 13, lines 25-44. See Interactive Gift Express, 47 USPQ2d at 1805. However, that passage does not state that the blanks are sold to the customers as blanks, but only that the retailer is reimbursed for the cost of blanks on which information is reproduced. See Freeny patent, col. 13, ll. 25-44. The district court, therefore, misconstrued the specific embodiment in that passage. Further, there is no support in the rest of the specification for this requirement; all of the embodiments are directed at providing material objects with information on them and not at selling blank material objects. See, e.g., id. at col. 13, ll. 1-13 (reproducing information on an 8-track or cassette tape);