Apple to Samsung: There’s More Than One Way to Design a Tablet

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A court document shows that one of Apple’s main arguments in its accusations that Samsung is infringing on Apple’s design patents is that there is more than one way to design a smartphone or tablet, and that Samsung simply failed to do so. An expert design patent witness testifying on behalf of Apple argued that Samsung is wrong in claiming that the forms used by Apple for the iPad and iPhone are a product of their function, and he went so far as to describe several ways that Samsung could have avoided infringing on said patents.

The witness is Cooper C. Woodring, an “independent industrial designer and inventor” who has testified as en expert witness in more than 60 design patent lawsuits. Expert witnesses are usually hired by the side for whom they are testifying, and there are a variety of established procedures and protocols for who can be admitted as an expert witness.

Cooper Woodring

Cooper Woodring

In Mr. Woodring’s case, his resumé includes a two year stint as President of the Industrial Designers Society of America (from 1985-1986), and he earned a Bachelor’s in Industrial Design from the University of Kansas and a Master’s in Design from Cranbrook Academy of Art.

In a court document uncovered by The Verge, Mr. Woodring’s job was to dismantle the testimony of one Itay Sherman, the expert witness testifying on behalf of Samsung.

His arguments are best wrapped up with his succinct introductory argument, where he said, “Apple’s iconic designs were not dictated by their function. There is more than one way to design a working smartphone or tablet computer. Therefore, Apple’s designs are protectable under the design patent laws.”

Of course, he had to back up that assertion with his own facts and arguments. The main thrust of his arguments was to position Samsung’s own arguments as essentially (and massively paraphrased) coming down to the idea that they had no choice but copy Apple’s designs because, well, duh, that’s the only way to do it.

At the center of these two points of view is the way design patents work. The point of a design patent is protect ornamental design. If an aspect of a design is necessary for its function—the example cited as court precedent in the testimony is the flat side of a hammer head—it can not be protected by a design patent.

According to Mr. Woodring (we haven’t seen Samsung’s expert witness testimony), Samsung is trying to argue that the black face surrounding the screen is a product of function, and not an ornamental design, and that rounded corners, slots for speakers, and the other design aspects that Apple has protested are all examples of the only way things can be.

To squash this viewpoint, Mr. Woodring testified as follows:

For the iPhone design, alternative smartphone designs include: front surfaces that are not black or clear; front surfaces that are not rectangular, not flat, and without rounded corners; display screens that are more square than rectangular or not rectangular at all; display screens that are not centered on the front surface of the phone and that have substantial lateral borders; speaker openings that are not horizontal slots with rounded ends and that are not centered above the display screen; front surfaces that contain substantial adornment; and phones without bezels at all or very different looking bezels that are not thin, uniform, and with an inwardly sloping profile

For the D’889 [design patent for the iPad owned by Apple] tablet design, alternate tablet computer designs include: overall shapes that are not rectangular with four flat sides or that do not have four rounded corners; front surfaces that are not completely flat or clear and that have substantial adornment; thick frames rather than a thin rim around the front surface; and profiles that are not thin relative to the D’889 or that have a cluttered appearance.

He added, “The availability of so many different design choices confirms my opinion that any alleged function assigned to the individual Apple design elements called out by Mr. Sherman is not essential to the use of a tablet computer or smartphone and could not have dictated the particular design of these elements of the Apple iPhone and D’889 tablet design.”

One of the most salient examples he used was for the black edge surrounding the display, as seen on the iPad. Mr. Woodring argued, “Mr. Sherman states that a black surface provides a number of functions, such as hiding the electronic components underneath. As indicated above, a number of white phones have been sold commercially, including by Samsung itself.”

The images below are of Apple’s iPad 2 (top), and Samsung’s Galaxy Tab 10.1 (bottom) and Galaxy Tab 10.1N. The 10.1N was a modified version of the Galaxy Tab introduced by Samsung in November (after this testimony was filed in the U.S.) for the German market as an effort to overcome an import ban Apple won, and it includes some of the very changes suggested by Mr. Woodring.

Note that the images we chose are not presented to scale.

iPad 2 

iPad 2

Galaxy Tabs

Samsung Galaxy Tab 10.1N (top) and Samsung Galaxy Tab 10.1 (bottom)

The testimony was filed on October 13th, 2011, and were just recently released. Apple and Samsung have both worked hard to keep as much of the testimony and evidence as has been possible filed under seal and kept secret. Even this one document that was released includes substantial passages that have been redacted.

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Imagine if you will a classic artists palette. Round with a notch and a hole for your thumb. Easier to hold for an extended period of time and less likely to slip.  Plus going with the palette theme make the exterior wood or a faux wood nonskid surface. There you have a design both different from the iPad and in some ways superior.

Or you can slavishly copy someone else’s product, warts and all.

Bosco (Brad Hutchings)

Reuters: US DIstrict Judge Hands Apple’s Arse to it on a Platter.

Apple needs to compete in the marketplace. End of story.


Yes, but Apple has already patented the palette design made of wood or a faux wood with nonskid surface, well known by a notch and a hole for your thumb.

Bryan Chaffin

Brad, you consistently amaze me at your willful denial of patent protection on innovation and the role it plays in “competing in the marketplace.”

Apple is competing in the marketplace and it is the company that is innovating (ironically to me, the same thing can be said for Microsoft’s Windows Phone). In this particular instance, it’s Apple (and its innovations) that took smartphones from a niche market to the biggest piece of the mobile pie.

It’s Apple (and its innovation) that created the media tablet market out of whole cloth.

Your position lacks all rational merit to me, and it would be more fairly stated as, “Apple needs to innovate and understand that every other company is entitled to benefit from that innovation and quit whining.”

I expect that kind of crap from whiny children who feel like they are entitled to anything and everything they want for free because they’ve never created a frakking thing of their own, but that’s not you. 

You have been living off your own creative energies and efforts for at least 15 years (that I know of), and it just mystifies me how someone who does make things, who does create, can so willfully deny Apple’s right to protect its innovations.

Bosco (Brad Hutchings)

Software (aka “business process”) patents are purely and simply what the 19th century French economist and philosopher Bastiat called “plunder”, i.e. using the power of government to rape your fellow citizens on your behalf. Design patents are damned close.

Bryan, if this were the FashionObserver website, the suit and dress designs we discuss would have zero patent protection. They survive on trademark protection, and brands thrive in an environment where the knock-offs are ready to produce within hours of a dress or suit or pattern hitting the runway. In the search for pharmaceutical compounds, we have a patent regime that is better in line with the effort required to find new drugs and prove them safe and effective. IP surrounding look and feel in computing products is just completely out of control, and works against innovation. Everyone is a gross infringer, even your beloved Apple. The system pretty much ensures that only very large companies can bring big innovations in software or hardware to market, not because they are the only ones capable of such innovation, but because they are the only ones capable of defending their right to bring it to market under a screwed up IP regime.

So my position may be against the status quo in the industry, but it’s quite consistent with how other industries operate under the same kinds of laws. Funny dat.

By the way, I’m most definitely not anti-patent. I’d like to see a system where applicants bid some percentage of the protection they wish to buy. So, for $1M, you might get $100M of protection. Once you’ve made your $100M from that patent, it expires. If someone comes along and wants to use the invention, they can simply pay the remaining bounty for the rest of the community and use as they like. But if you’re too cheap or poor to put up $1M, you get less protection. Accountants get rich instead of lawyers, which would be a marginal improvement. And we’ll quickly get an idea of what innovation protection is worth to innovators. I doubt it’s anywhere near as much as the current system, which rewards dirt cheap speculation, suggests.

Bosco (Brad Hutchings)

I’ll add a little more here… Having been involved in a few patent applications as the innovator, I can attest that the process driven by a patent attorney is guaranteed to make sausage out of what was actually done and often by whom in order to evade an examiner’s supposedly critical eye. Often, instead of finding innovation, it finds infringement, then doubles back and tries to find other patentable “innovations” that would saddle products with future cruft. There is no better example of what a joke the application process has become than the USPTO’s recent display of all of Steve Jobs’ “inventions”, i.e. those things he was listed on the patent applications for. If he was truly responsible enough for all of those things to be listed as an inventor, Apple is teh screwed.

Back to design patents. Apple uses them to ensure that it has a monopoly on replacement power cords and even innovative power cord solutions compatible with its products. I don’t know how anyone can keep a straight face saying that isn’t screwed up. Especially as a Apple fan, all that situation does is cost you money over the useful life of your Apple products and convenience. And you’d cry like babies if a printer company were using design patents or the DMCA to define and protect an ink monopoly.

Bryan Chaffin

Brad, I’ll readily acknowledge that you’ve been consistent in your stance on software patents. I also have major reservations on that front and I believe our patent system is in need of an overhaul.

I’ll have to ponder the rest some more?I still can’t fully grasp your stance on the whole issue.


The current state of the patent system was not created by Apple. Neither can they be faulted for using what is in place. What else can they use? Why shouldn’t Apple reap the benefit of their inventions whether they be power cords or cell phones? You think their solutions are obvious and should be open. That is wrong. Most of their successes from the first iMacs to the iPad were scoffed at when introduced.

The idea of buying patent protection for a fee would give companies like Apple a huge advantage. They have a lot of cash on hand. Worse, is what such a system would do to an idea someone comes up with in their “garage.”

What would have happened to those who invented such simple things as the nerf football or workmate? Could they come up with the fee to buy patent protection? Before their idea hits the market, how would they know how big that market would become? Most of these folks have trouble just scrapping enough together to get an idea off the ground.

There is a woman in this area who has invented, designed and brought to market a plate for eating lobster. How much is that worth? How big is that market? Is the market greater than just those who eat lobster? Her solution is obvious and like many other times I wonder why I or no one else ever thought of that.

Perhaps she could come up with enough cash to buy 100K worth of protection. Some mega dinnerware company comes along and pays her the 100K and then proceeds to crush her business. This kind of system favors the wealthy and would discourage the home inventor.

Lee Dronick

Imagine if you will a classic artists palette. Round with a notch and a hole for your thumb. Easier to hold for an extended period of time and less likely to slip.?

Or a least a case for a rectangular iPad.

You think their solutions are obvious and should be open. That is wrong.

If it was obvious why didn’t someone do it before. Because “we” are stuck in ruts. Maybe someone did think of it and had a working device before someone else, but if you don’t file for a patent you don’t have much protection of your idea. My hometown was a part of the most expensive patent fight ever, then and now (after inflation). Daniel Drawbaugh was a local tinkerer and inventor. He supposedly had a telephone 10 years before Bell, but lost the case by one vote before the Supreme Court when he had a “senior moment” on the stand. When he died in 1911 he was working on a wireless burglar alarm.

Bosco (Brad Hutchings)

@skipaq: Small garage inventor is looking at $15K - $20K minimum to obtain a patent. With the implied multiplier in my example, they would get $1.5M to $2M if someone wanted to legally pilfer (i.e. “license”) their patent to expiration.

But there are other ways to encourage innovation, such as the X-Prize. You may dislike Newt Gingrich and his previous near obsession for Alvin Toffler, but they did have a pretty good idea in this space about Congress posting bounties to encourage innovation in specific areas and the winner sharing that knowledge obtained.

But ultimately, I liken Apple’s use of the current system to pollution. If your local MLB franchise were dumping crap from the bathrooms into your groundwater, you would be up in arms, even if they had a permit. Apple Legal has been dumping crap in the IP groundwater for almost a decade.


@Brad: That still doesn’t deal with the issue of those who have the most money being able to buy up IP rights. Some of these rather simple ideas people have had were ultimately worth a lot more than $2M. What would prevent Apple, Microsoft, Google or others from buying up the IP rights of others and crushing the dreams of others? What would stop them from putting such a high IP value on something and thus lock everyone else out? In such a case the copying would go on and your back in court.

Venture capitalists could ruin many dreams with this type of system. To me it is just another the rich get richer at the expense of others tool. I have no problem with the X-Prize idea; but that wouldn’t replace IP rights.

As for your analogy of Apple dumping waste; I don’t accept it. Apple spends more time filtering the crap out of products and providing cleaner “groundwater.” I have no problem with their using the system to protect what they do and to make a good profit from it. They put a lot of work and time into their products. It is flat out wrong for someone to come along and copy it.

Bosco (Brad Hutchings)

@skipaq: I think it’s insane that we give a multi-billion dollar court-enforced monopoly to any company where we have only its word about the value it invested in the invention. But at the same time, if Apple is willing to cut a check for $1B to Uncle Sam, I’m all for them getting $100B of said protection.

Unfortunately for you, copying is not wrong. It’s part of the innovation process, and if you stand there and yell “copying is wrong”, you’re missing the plot. And actions that might later be legally determined to be misappropriation of property aren’t wrong either, until that determination has been made, and damages determined. Should those damages be negligible of offsetting, the original actions aren’t wrong enough to have not done. It’s called competition to meet customers’ needs skipaq, and it puzzles me why Apple and its fans are so afraid of it.


So because Bosco thinks that patent law is outdated and unfair we have to “listen” to him whine constantly about it?  Oh, please don’t get him started on speed limits!!

The law is the law.  Until the law is changed, deal with it and stop whining like a baby.

Bosco (Brad Hutchings)

You’re free to leave, Ron. And you don’t have to listen to me. I generally don’t listen to you.


I know.  Free country and all.  And, I have not bothered you for some time now.  But I just had to point out what is going on with your comments.

Why would I want to leave?  I love the drama!!  Humors me how when Apple wins an injunction against Samsung you call Florian an idiot for anything he says, or you simply hide, yet when Apple doesn’t win on something you exaggerate that the judge hands Apple’s arse to them.  Funny stuff.  Yet Apple is still winning, and is suing in order to win more, and is totally in its right to do so.  This bothers you tremendously.  The judge acknowledges that Apple can probably prove that Samsung has infringed on its design patents.  Hardly handing Apple’s arse to them.  I do agree with you that the patent system needs a complete overhaul though.  It is drastically outdated.  But until that is done, it is still the law.

I’ll be quiet now.  I wish you well.  Happy holidays.


I suppose we should just go out and copy whatever it is we want. Then we can mass produce it and sell it for less (didn’t cost much for us to develop it) and this is all right and good in your world. People do pay fines and go to jail for things like that; but it isn’t wrong. But they shouldn’t because copying is part of the innovation process. Got it wink Quickest way to innovate is to copy. Sure beats the heck out of developing something yourself. How stupid of me; could of used this wisdom in school.

Bosco (Brad Hutchings)

@skipaq: The copying (community design infringement) that Apple alleges in the European court is of non-protectable IP in the United States. Does that sway your moral assessment? Or is it wrong in the EU, but OK here? Or is it just wrong everywhere regardless of IP regime?

The copying that is alleged in Apple’s various US suits and actions has often boiled down to obscure patents from 15 years ago, which are arguably obvious at the time, and like many such software patents from the time, are probably in just about any computing product with an operating system today. The patents were obtained at a time when there was mostly detente among the large IP holders in the space, and had been mostly benign until Apple decided it was time to sue everyone.

The most objectionable part of what Apple is doing is that it’s trying to protect the explicitly unprotectable in the United States via a death by 1000 cuts of minor, unavoidable and common infringements, the likes of which Apple itself does because they’re common and unavoidable in this space. Apple v. Microsoft was resoundingly clear that look and feel was not protectable. Yet, that’s what Apple is after again. Few here or discussing this stuff in public have any idea about the specifics or merits of the individual alleged infringements, yet have no problem saying, for example, that Samsung (illegally) “copied” Apple. What complete horseshit.


Sucking up to an idiot does not a case make. Another time of having to read with a bucket between my legs.


@Brad: I’ve stated many times before; I am not a lawyer nor do I have any expertise in the field of patent law. I am content to leave the judgement as to what is legally acceptable up to the courts. I am no more a judge in this matter than you and it wouldn’t matter if everyone, including Apple, does it.

There was a licensing deal between Apple and Microsoft remember. The court came down on Microsoft’s side. I have no problem with that and would have no problem if the courts kick Apple’s butt out the door. Personally, I try to do what is right as imperfect as I am.

Just because the law says that I can legally do a thing does not mean that I think it is right. I have consulted with publishers about reproducing their material in classes that I teach. I don’t just go ahead and copy it because everyone else does or I think the statute doesn’t apply.


Bosco said:

copying is not wrong. It?s part of the innovation process, and if you stand there and yell ?copying is wrong?, you?re missing the plot. And actions that might later be legally determined to be misappropriation of property aren?t wrong either, until that determination has been made, and damages determined. Should those damages be negligible of offsetting, the original actions aren?t wrong enough to have not done.

Aren’t you essentially saying that it’s not stealing if you don’t get caught? Or get adequately punished?

And doesn’t that lead to conclusions like…
“It’s not wrong if the molested children don’t go to the authorities? Or if the authorities do nothing? Or if the molester just gets his hand slapped?”

Bosco (Brad Hutchings)

Aren?t you essentially saying that it?s not stealing if you don?t get caught? Or get adequately punished?

No. I’m reminding you that IP rights are subtle, not absolute. I’m recognizing the dynamic nature of products in the market place, where the state of the art is actually advanced by selected copying and innovation. I’m recognizing that IP rights actually vary by jurisdiction. And finally, I am recognizing that we are not necessarily well served by restraining trade and granting enforceable monopolies to inventors and creators.

I guess if you feel all indignant about Samsung “copying” Apple phones and tablets, I hope for consistency’s sake that you are just as indignant about Apple infringing on LodeSys’ patents. I have a hunch that that consistent guy doesn’t actually exist, so I’m showing y’all where this “copying” meme breaks down.


Dear Bosco,

1. I’m by no means a legal expert, and don’t know what the outcome of Lodsys’ claims against iOS developers inasmuch as Apple licensed Lodsys’ patents. And according to your argument, there’s no harm done to Lodsys unless a court determines there is substantial and very costly harm to Lodsys. In which case it would be the outside developers, not Apple, who would be accountable, and possibly driven out of business. To me this argument is a red herring.

2. Is it “subtle” if someone copies the glass, border, bezel, shape of the device and its speaker openings, GUI, application icons, etc to the point where one cannot easily tell the difference between the original and copied products?

3. If I am indignant, it would be because of the way that Google and Samsung ingratiated themselves with Apple and then helped themselves to their technology. If you hired someone to help with your business, and they similarly helped themselves?to your detriment, wouldn’t you want them to cease using your IP and want restitution? (Not to mention feeling betrayed?)


The name “Apple” itself can be challenged if Apple trying to halt people from using rectangular rounded design for tablet. In my opinion, if we patented a design that is really close to common things like design primitives, then we are like a dictator in the legally-bounded-by-patents design kingdom. Design appeal comes from many elements, from colour, materials, structure, usability, functionality, etc. Apple has risen from the genius of Steve Jobs who knew what elements to combine and what should comes first. In design perspectives, if I were Steve, I’d rather fight for these virtues rather than patent wars in court. But for the sake of business survival, Apple and Samsung moves on this issue are legitimate and necessary. Still, I’ll go with Brad Hutchings’ views.


God, this is hilarious.  Everyone, please keep one thing in mind.  Regardless of all the dancing around, cursing, and arm-waving going on here, the fact remains that Apple is pursuing legal action based on the laws as they are today.  Oh no, I feel a humorous comparison coming on…

Judge:  Mr. Youknowwho, it says here that you were ticketed for speeding.  80 MPH in a 55.  Is that true?

Youknowwho:  Yes, Sir, it is true.  However, speeding laws are purely and simply what the 19th century French economist and philosopher Bastiat called ?plunder?, i.e. using the power of government to rape your fellow citizens on your behalf. Speeding laws are damned close.  Also, other modes of transportation do not have speeding laws.  If I were, say, on the ocean in a ship I could go however fast I want to.  By the way, I?m most definitely not anti-speeding laws.  But, a $300 fine for only going 80 MPH in a 55?!?!?  That is horseshit.  I?d like to see a system where the better one can argue against speeding laws the lower amount in fines I would pay.  I should only have to pay $100 and not $300.  And let me remind you that speeding laws are subtle, not absolute. I?m recognizing the dynamic nature of driving in the market place, where the state of the art car is actually advanced by selected copying and innovation of engines.  I’m not even convinced that we should have speed limits anymore.  Speeding is OK because I say so.  DId I mention horseshit?  I think I did.  I rest my case.

Judge:  Let the record show that Mr. Youknowwho admitted to speeding.  $300 fine and a psychiatric evaluation.

Disclaimer:  The preceding was a humorous anecdote and was not intended to be insulting or mean in any way.


Jochen Wolters

It is debatable whether patents are the right way to protect functional or aesthetic designs, and whether the current US patent system is fundamentally broken (FTR: I do think so).

Assuming that creative ideas don’t come cheap and have real value, though, whoever creates “stuff” should somehow be able to effectively protect their creative output against blatant copying.

Regarding this specific case, I find it astonishing that an expert witness is required to point how just how closely the Samsung Galaxy S line of phones resemble the look of Apple’s iPhones. Especially, the Galaxy S 4G is extremely close to the iPhone 3G(S) in terms of case design.

To get a feel for just how unimaginative Samsung’s designs are, take a look at phones like Nokia’s Lumia 710 and their N8-00.

While they’re similar in essence—there are only so many ways to package a rectangular touch screen, after all—there is no chance you’d confuse these for an iPhone.


Maybe the company clown serves his purpose. It does elicit responses which is sad since there are enough thoughtful members who should be able to raise discussion amongst themselves. 

It?s like the mad prater on the psychiatric ward where the descent in credible thinking fails to keep the wardens on their toes but leaves the incredulous observers in stitches.


In certain categories when a products evolution is resolved to an ideal form, competing products look the same. Televisions come to mind (and they happen to look like giant tablets). Its unlikely that the average person can discern one tv brand from another based on aesthetics. So brands compete on other features. Now I know NOTHING about patent law, so I’m only indirectly commenting on Apple/Samsung. More so I’m trying to direct the conversation toward a discussion of hypothesis that (some?) products naturally evolve toward a common form. And if so, what ramifications does it have for intellectual property.


Copying “is” good. Every innovation is an improved copy of some previous innovation. We stand on the shoulders of giants.

That’s why we have a patent system in the first place. Patents give the inventor a limited time monopoly on their idea. This monopoly allows them to get value for their invention, but after the time expires, then the invention’s value is free to be used in the next innovation.

Patents explain an invention. Sure, you could try to keep it a trade secret and if no one figures out your innovation, you can have a monopoly for life, but if you describe in detail, what you did and how you did it, then you can get a monopoly on that invention for a limited time.

As others have stated, the system is far from perfect, but it is the law. It is the current system.

Capitalism is about reaping value from works.

Laws are the rules of the game.

How can you blame Apple (or any other corporation) for playing the game and playing it to win. Sure, you *think* it’s no fair, and perhaps it isn’t, but they are playing the game by the rules. And if the rules are different in a different country, then play by those rules. There’s no moral dilemma here, you’d be foolish not to.

Just because you *think* they shouldn’t be able to do something doesn’t mean that it’s wrong when they do. (e.g. suing a local “Apple” restaurant for trademark violation because c’mon, who is going to confuse a restaurant with an electronics company?)

If a court hears the case it means they think there is something to be adjudicated.

Bosco (Brad Hutchings)

@ctopher: A couple minor things… Patents do not give monopolies on *ideas*. They grant a monopoly on a particular implementation. In patent litigation, especially over business process patents, there is significant chance of patent claims being invalidated, so (practically speaking) just because you have a patent doesn’t mean you have an enforceable right. Also, there is legal code, and then there is “law”, which is an emergent phenomenon. It’s why you can and should go 70 on a freeway in safe conditions when the speed limit says 65 and the flow of traffic is at 70.

Those aside… Here’s how I can blame Apple for the legal adventures… In phones, Apple doesn’t make a product that addresses an audience outside its niche of users, yet is suing companies that do. I have plenty of anecdotal evidence that Apple doesn’t even make a product that addresses its own audience. People that I’ve converted from iPhone to Android end up agreeing with me that it works more like they think that iPhone and appreciate killer features like voice dictation that works for most people, transcribed voicemail with Google voice, and navigation that reroutes automatically as you improvise your route. Apple did not lose the phone market because of actual or alleged infringement. It lost it because everything is Apple’s way or the highway, and Apple does not work well with others. Apple just doesn’t have a system that can incorporate the best ideas from all sources. Android does a lot better on that front.

Also, as I have explained before, I see Apple trying to protect “IP” that is unprotectable with a death by a thousand cuts approach. Ultimately, I don’t see that approach as successful, so what I end up seeing the approach for is just delaying and adding costs to their competition rather than competing and meeting the needs of customers who don’t like the Apple approach or implementation and do like those of Apple’s competition. For me, it really comes down to… Fine Apple, be crappy to your own fans, but don’t use your patents to force your way into being crappy for the rest of us. It’s just a waste of all our time.

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