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Part 2 of 2: Supreme Court and Inter Partes Review

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SAS Institute Inc. v. Iancu

As we recently noted in our companion piece Part 1 of 2: Supreme Court and Inter Partes Review, the Supreme Court issued decisions in two intellectual property appeals relating to inter partes review (“IPR”) before the U.S. Patent and Trademark Office. In Oil States Energy Services LLC v. Greene’s Energy Group LLC, No. 16-712, the Court decided 7–2 that the inter partes review process does not violate Article III of the Constitution or the Seventh Amendment. In SAS Institute Inc. v. IANCU, No. 16-969, the Court decided that the Patent Trial and Appeal Board (“PTAB”) must decide the patentability of all of the claims the petitioner has challenged rather than selectively picking and choosing which claims to review. In response to the Court’s decision in SAS, the PTAB has already issued new guidance regarding the institution of IPRs.

This blog addresses the SAS decision.

The Supreme Court Decision

Having finally put to rest the question of whether IPRs are constitutional (for now at least), the Court moved on to decide the extent of the PTAB’s authority in determining whether to institute such a proceeding. The question the court addressed is whether the PTAB “must resolve all of the claims in the case, or may it choose to limit its review to only some of them?” Slip Op. at 1 (italics in original). The Court, relying on a plain language interpretation of the statute, held that the statute has a “mandatory and comprehensive” requirement that if the PTAB decides to institute an IPR, the PTAB must decide the patentability of all the claims in the original petition. In other words, the PTAB has a “binary choice—either institute review [on all claims in the original petition] or don’t.” Id. at 8.

In reaching this conclusion, the Court made a series of arguments. First, the Court decided that the language of the statute was clear, “[t]he text says only that the Director can decide ‘whether’ to institute the requested review-not ‘whether and to what extent’ review should proceed.” Slip Op. at 8 (citing 35 U.S.C. § 314(b)). Second, the Court explained that the policy argument of allowing the PTAB to focus on the most promising challenges to avoid wasting time on others was a question for Congress and not one that the judiciary could decide. Third the Court explained that Chevron is not relevant because, according to the Majority, the “statutory provisions . . . deliver unmistakable commands” and there is “no room in this scheme for a wholly unmentioned ‘partial institution.’” Id. at 12. Finally, the Court disposed of the argument that the judiciary lacks power to review a PTAB’s institution decision under § 314(d), including whether that institution decision can restrict the claims under review.[1] The Court explained that § 314(d) pertains to the substantive analysis by the PTAB of whether there is a “reasonable likelihood” that claims are unpatentable while the question at issue pertains to whether the PTAB is acting outside of its statutory limits, a question which the Court may in fact review.

The Court highlighted that the Director (through his delegate, the PTAB) still has discretion in deciding whether to institute an IPR—the PTAB can decide not to institute even if there is at least one claim upon which the petitioner has a reasonable likelihood of prevailing.

The Court’s SAS decision upends years of common practice at the PTAB. While the Court has settled the question of partial institutions, it has opened up many questions that will likely lead to future litigation.

Looking Forward

More questions than answers remain after the SAS decision, and almost certainly more litigation. The PTAB has been quick to take action, issuing new guidance in response to SAS on April 26, 2018, two days after the decision. However, more than just the PTAB will be affected. The effects of SAS will be felt by the courts and will likely alter petitioner and patent owner practice.

PTAB Guidance

On April 26, 2018, the USPTO published Guidance on the impact of SAS on trial proceedings (the “Guidance”), in response the Supreme Court’s SAS decision. The guidance, like the SAS decision itself leaves many questions that will need to be answered.

The PTAB will review all challenges in a petition

The Guidance clearly states that the “PTAB will institute as to all claims or none,” thereby complying with the SAS decision. The Guidance goes further, however, and also states that it will institute on “all challenges raised in the petition” (italics added). This additional step as to “challenges” goes beyond the requirements in SAS, which only explicitly required the PTAB to institute as to all claims. This step by the PTAB to review all challenges, which was not always the practice at the PTAB, is likely anticipatory and a move to avoid future litigation on a similar matter. Patent holders will likely benefit as they will no longer have to worry about challenges that the PTAB decided not to review popping back up in district court.

The PTAB has discretion for already instituted IPRs

The Guidance provides that for pending trials with a partial institution, the PTAB may issue an order supplementing the petition. The Guidance does not require that all pending partially instituted IPRs be supplemented, instead leaving discretion to the panel for each IPR. It is likely that this issue will be litigated, however, due to the time requirements for IPRs proceedings, this will only remain an issue for a short period of time.

The PTAB has discretion to extend deadlines

The Guidance provides that the PTAB may extend deadlines and allow for additional briefing and other time extensions where it deems necessary. Under 35 U.S.C. § 316, once an IPR is instituted, the IPR proceeding should be completed and a final written decision issued within one (1) year, with a six (6) month extension possible for good cause. The change in practice required by the SAS decision will undoubtedly qualify as “good cause,” but there is a potential for litigation where a proceeding is extended beyond the six month extension period.

An additional issue raised is how discovery will be affected by the PTAB supplementing institution decisions. It is possible that depositions will need to be retaken, more production requested, and other similar issues that will delay the proceedings.

IPR parties will have to meet and confer

The Guidance provides that parties to an IPR shall meet and confer as to scheduling requirements. Although not mandatory, it is recommended that the parties take advantage of a meet and confer as the PTAB may not extend deadlines without a request.

Other effects at the PTAB

It is unclear at this time how the SAS decision will affect petitioner practice before the PTAB, but it clear that for the near future, the PTAB has a lot more work in front of it.

The PTAB has an increased workload

The PTAB has an increased workload in at least its final written decisions, which will surely be longer as the PTAB can no longer weed out claims it deems unmeritorious at the preliminary stage. For any instituted IPR, the PTAB must now include a written decision to all claims even where it initially believed some claims were without merit.

Conclusory Institution Decisions?

To balance the increased workload, it is entirely possible that the PTAB may drastically shorten its institution decisions, perhaps to a single word—instituted or denied. Another option for the PTAB is to explain the reasonable likelihood that the petitioner would prevail to the one (1) claim required by statute for institution. The panel for each PTAB proceeding will continue to have the prerogative to include as much or as little information in the institution decision, as permitted by the statute.

First, the statute merely requires that the Director (i.e., PTAB) notify the parties, in writing, of the institution determination. 35 U.S.C.  314(c). The statute does not require an explanation of its decision. Instead, the statute requires only a notification of the decision and the date on which the review shall commence.

Second, the PTAB’s determination on whether to institute an IPR is final and nonappealable—if, of course, the issue is substantive, i.e, the PTAB’s determination of a reasonable likelihood that the petitioner would prevail as to at least one claim. Again, the PTAB appears to have discretion to drastically shorten its institution decisions.

If the PTAB does take this route, petitioners and patent owners will lose early insight into the PTAB’s position early on in the proceeding.

Denial of more petitions; Telegraph which claims warrant reexamination (Ginsburg’s Dissent)

The Director/PTAB still has complete discretion in whether to institute an IPR. Thus, as Justice Ginsburg notes in her dissent, it is entirely possible that the PTAB can deny any petitions containing challenges that have no “reasonable likelihood” of success and explain or note in its decision what claims the PTAB feels warrant review. The petitioner would simply need to amend its petition (and likely pay a new filing fee) to include only those claims that the PTAB has telegraphed as warranting review.

The Majority noted Justice Ginsburg’s dissent in a footnote and acknowledged the PTAB’s ability to act in such a way. Slip Op. at 11. However, the Majority provides some indication that such a practice by the PTAB may constitute “shenanigans” which the Court might not deem allowable if it gets the chance to review such a question. It seems that if the PTAB does take this path, litigation will follow shortly thereafter.

One issue that would complicate this approach is the one year time bar that runs from the date that a civil complaint is served. 35 U.S.C. § 315(b). Where IPR petitions are filed in response to civil litigation, it is unlikely that the PTAB would be able to deny a petition quickly enough to telegraph what claims are worth pursuing without foreclosing the opportunity for a petitioner to refile.

Changes at the courts

This decision will not only affect the PTAB, but also the district courts and the Federal Circuit.

More stays at the district court

The removal of partial institutions at the PTAB may result in more district courts deciding to stay their case pending the outcome of an IPR. The statute does not require a district court to stay a proceeding once an IPR is instituted, however courts have been amenable to such an idea. Issues arise, however, where the claims included in a partial institution at the PTAB do not encompass all claims at issue at the district court. With the removal of partial institutions, it is possible that more IPRs will encompass all the claims at the district court, which may lead the district court to order stays more often.

The Federal Circuit has an increased workload

The Federal Circuit will have an increased workload in reviewing longer decisions by the PTAB that includes more claims than it has in the past. It is possible that the Federal Circuit will continue its current practice of summarily affirming close to half of the appeals that it receives. However, with the increased number of claims making their way through the PTAB, it is possible that the Federal Circuit will take a closer look at more cases and on more issues. In addition to reviewing more claims at the Federal Circuit, it is also likely that the Federal Circuit will have to deal with more procedural issues.

Petitioner Practice and estoppel

Petitioners, real party in interest, or those privy of petitioner are estopped from asserting in a civil action or an action before the ITC that a claim is invalid on any ground that the petitioner raised or could have raised during an IPR and that resulted in a final written decision. Estoppel will be more prevalent with the PTAB having to review all claims in a petition.

Therefore, Petitioners should spend more time analyzing their arguments and ensuring that they are choosing only those claims that they feel have a good chance of being invalidated at the PTAB, else they lose their chance to argue the same in another proceeding.

An alternative option for petitioners is to file more petitions. Where possible, a petitioner may want to split up what would normally be included in a single petition and file as entirely separate petitions.  In this way, the petitioner would have a greater chance of preserving arguments where the PTAB denies certain petitions and not others. This would, however, require additional filing fees.

Conclusion

The Supreme Court has shaken up the patent world once again with little guidance on how to move forward. This slight change in IPR practice will have large effects at the PTAB and the courts. Issues in response to this decision will undoubtedly show up in the courts in the future.

We will continue to monitor these development and will keep you informed of changes.


[1] 35 U.S.C. § 314(d) states that the “determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.”

Source: https://www.bioloquitur.com/part-2-2-supreme-court-inter-partes-review/

Blockchain

How NFTs, DeFi and Web 3.0 are intertwined

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While blockchain itself provides the technology constructs to facilitate exchange, ownership and trust in the network, it is in the digitization of value elements where asset tokenization is essential. Tokenization is the process of converting the assets and rights to a property into a digital representation, or token, on a blockchain network. 

Distinguishing between cryptocurrency and tokenized assets is important in understanding exchange vehicles, valuation models and fungibility across the various value networks that are emerging and posing interoperability challenges. These are not just technical challenges, but also business challenges around equitable swaps.

Asset tokenization can lead to the creation of a business model that fuels fractional ownership, the ability to own an instance of a large asset. While discussing asset tokenization in a previous article, I also mentioned the value of an instance economy in democratizing finance, commerce and global access, as well as in creating a broader global marketplace at a scale never before seen.

With digital assets and their fungibility in a blockchain ecosystem, there are various drivers of valuation. These include: 1) tokens based on crypto economic models that are driven by supply and demand, and the utility of the network; 2) nonfungible tokens, or NFTs, which have an intrinsic value such as identification, diplomas and healthcare records — essentially, tokens that are simple proof validations of the existence, authenticity and ownership of digital assets; and 3) fungible tokens that are valued on various bases, such as the sum total of economic activity in the network (cryptocurrency), its utility (smart contracts and transaction network processing), assigned values (stable coins and security tokens), and so on.

In this article, I address the complex issue of the hyperbolic and rapid rise of NFTs, after a similarly meteoric rise of decentralized finance, or DeFi, creating amazing innovations — with immense promise of democratization, new business models and global marketplaces with global access — all fueled by the basic premise of decentralization and fundamental constructs of tokenization and wallets. While NFTs may be characterized as one-of-a-kind cryptographic tokens with some intrinsic value to a holder or to a market (art, collectibles), the NFT movement is indicative of a larger token revolution that will not only fuel massive innovation and growth in Web 3.0 protocols but also test the resolve of the DeFi movement, along with its ability to intersect and provide platforms and an exchange vehicle for all token types.

Growth in Web 3.0 protocols

The first two generations of web protocols were largely about disseminating information and connecting people. They fueled a massive growth in information and collaboration, and did wonders for connecting the world. However, those web protocols were never designed to move things of value. Also, as the Web 2.0 era reached its fullest potential, vulnerabilities such as “fake news” and the “batched relay” of the movement of assets via a series of intermediaries emerged. Threats to the commerce and financial infrastructure of the system risk destabilizing it.

Web 3.0 promises to safeguard all things we value: information, truth and digital assets — both fungible and nonfungible. Whereas Web 2.0 was driven by the advent of social, mobile and the cloud, Web 3.0 is largely built on three new layers of technological innovation: edge computing, decentralized data networks and artificial intelligence.

The growth of NFTs has not only empowered the ability for artists, skilled professionals and entrepreneurs to encapsulate innovation in a tokenized form but has also fueled the democratization of the platform as one of the promises of blockchain technology. The underlying infrastructure includes decentralized storage technologies, efficient consensus protocols, off-chain computing, and oracle networks to provide connectivity and validation to existing systems.

Collectively, the Web 3.0 set of technologies envisions a connected, trustless, accountable network for efficiently delivering value, thus crafting an infrastructure for things of worth. NFTs represent both transferable entities and nontransferable tokens that we value. The latter include things such as our identification, healthcare records and passports, things that represent us and allow us to participate in the digital economy with our own unique, digital identities.

As we dare to envision a shift toward a world with decentralized control, governance based on distributed technology that challenges every business model, and governance structure built upon centralized business frameworks, we do have to ponder some things. Not only the shift itself, but the motivation, incentive and monetization elements that fuel and power the economic infrastructure to move things that have value — thereby keeping up with our changing perception and subsequent realization of that value.

Intersecting with finance — DeFi

DeFi is the movement in the blockchain applications space that leverages decentralized network technology to disrupt and force a transformation of old financial products into trustless, transparent protocols, facilitating digital value creation and dissemination with few to no intermediaries. It is widely understood and accepted that — due to new synergies and co-creation via new digital interactions and value-exchange mechanisms — blockchain technology lays the foundation for a trusted digital transactional network that, as a disintermediated platform, fuels the growth of marketplaces and secondary markets.

While DeFi aims to deliver the promise of finance democratization, NFTs test the resolve of DeFi by delivering a competitive yet inclusive asset class, plus avenues to provide a medium of exchange, fungibility by other fungible asset classes, and liquidity to a traditionally illiquid market.

Asset classes resulting from DeFi protocols and NFTs avail themselves of the advantages of fractional ownership of the assets, blurring the lines between asset classes and using constructs like digital wallets as a receptacle for them. This is all supported by underlying layers of Web 3.0 that provide security and availability via decentralization, as well as trust and immutability via consensus, extending these principles to basic computer infrastructure like storage and interconnect.

Commercialization of Web 3.0 protocols, which manifest as fungible utility tokens, further blurs the lines with diverse financial innovation products introduced by DeFi (such as base assets and derivatives), products that are also tokenized. So, while decentralization is the underlying theme — and the wallet and the token are fundamental constructs — these blurring lines are quite profound.

This article does not contain investment advice or recommendations. Every investment and trading move involves risk, and readers should conduct their own research when making a decision.

The views, thoughts and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

Nitin Gaur is the founder and director of IBM Digital Asset Labs, where he devises industry standards and use cases and works toward making blockchain for the enterprise a reality. He previously served as chief technology officer of IBM World Wire and of IBM Mobile Payments and Enterprise Mobile Solutions, and he founded IBM Blockchain Labs where he led the effort in establishing the blockchain practice for the enterprise. Nitin is also an IBM Distinguished Engineer and an IBM Master Inventor with a rich patent portfolio. Additionally, he serves as research and portfolio manager for Portal Asset Management, a multi-manager fund specializing in digital assets and DeFi investment strategies.

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Source: https://cointelegraph.com/news/how-nfts-defi-and-web-3-0-are-intertwined

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Has the rally ended for altcoins like LINK, ADA, and NPXS?

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With most altcoins rallying at the current point in the market cycle where Bitcoin is making a comeback, there are a few altcoins that may have ended their price rally. Among these, LINK ranks in the top 10 cryptocurrencies based on market capitalization.

LINK’s oracles may have filled the void left from the removal of XRP from Grayscale’s fund. However, that does not seem to have had an impact that would last long enough to boost the price on spot exchanges. The asset is currently trading at the $32 level, down from its ATH. Though there is anticipation that the price will rally to its ATH, the dropping trade volume across exchanges signals otherwise.

After being added to Grayscale’s fund, LINK’s price went up steadily, however, a boost from institutional demand may not be enough to boost the asset’s price. 93% HODLers are profitable before the asset takes a dip in the current cycle

The altcoin rally may have ended for LINK, ADA and NPXS

Grayscale LINK Holdings || Source: Bybt

LINK’s institutional demand has had only a partial impact on price, and the trend reversal depends on the HODLers profitability at the current price level and the rally of altcoins led by ETH. Historically, Bitcoin’s rally has had a negative impact on LINK’s price and that remains to be seen as Bitcoin traders above $60000 once again this weekend.

Another top altcoin, Cardano has offered HODLers an ROI of over 440% in 2020. This altcoin has been considered to be the one to HODL in the long term based on on-chain analysis and trader sentiments. In the current cycle, 65% HODLers are profitable at the price level of $1.23. This is one of the top altcoins in which the concentration by large holders is low, below 50%, currently at 24%.

Additionally, at this point in the rally, there is a significant drop in ADA’s trade volume across exchanges. This drop in liquidity may lead to a drop in price over the following week. Though large transactions in the past week have been above $30 Billion, the volume is dropping consistently.

The altcoin rally may have ended for LINK, ADA and NPXS

ADA price chart || Source: Messari

Unlike ADA and LINK, in the case of NPXS, the price is back to the same level as a month ago. The 24-hour trade volume has taken a plunge with a near 100% drop in 24 hours, and this is a unique position in NPXS’s price cycle. Moreover, the on-chain sentiment is bearish and this may be the ideal time to buy altcoins like these that are consolidating. The confidence is consistently high in top markets on spot exchanges, and the dropping trade volume is a sign of consolidation.


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Source: https://ambcrypto.com/has-the-rally-ended-for-altcoins-like-link-ada-and-npxs

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Blockchain

Kraken Daily Market Report for April 09 2021

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Overview


  • Total spot trading volume at $1.02 billion, down from the 30-day average of $1.34 billion.
  • Total futures notional at $417.0 million.
  • The top five traded coins were, respectively, Bitcoin, Tether, Ethereum, Ripple, and Polkadot.
  • Strong returns from Waves (+23%), Basic Attention Token (+17%), Keep (+13%), and Filecoin (+12%).

April 09, 2021 
 $1.02B traded across all markets today
 Crypto, EUR, USD, JPY, CAD, GBP, CHF, AUD 
XBT 
$57928. 
↓0.21% 
$379.8M
USDT 
$0.9996 
↓0.02% 
$197.7M
ETH 
$2060.0 
↓1.0% 
$115.3M
XRP 
$1.0285 
↓2.9% 
$70.9M
DOT 
$40.512 
↓2.1% 
$27.6M
ADA 
$1.2002 
↓1.6% 
$24.8M
WAVES 
$16.972 
↑23% 
$20.9M
USDC 
$1.0000 
↑0.02% 
$20.8M
FIL 
$173.42 
↑12% 
$20.7M
LTC 
$219.62 
↓3.0% 
$16.3M
XTZ 
$6.6226 
↑7.5% 
$13.4M
LINK 
$31.279 
↓4.6% 
$12.5M
BAT 
$1.5112 
↑17% 
$11.8M
TRX 
$0.1153 
↓6.5% 
$11.7M
SC 
$0.0296 
↑0.6% 
$10.9M
MANA 
$1.0222 
↑2.9% 
$10.6M
XMR 
$275.91 
↑2.1% 
$9.67M
BCH 
$630.11 
↓2.1% 
$7.69M
XDG 
$0.0611 
↓1.1% 
$7.48M
XLM 
$0.4833 
↓4.4% 
$7.44M
OMG 
$10.224 
↑0.04% 
$7.33M
KSM 
$448.87 
↓2.6% 
$7.11M
EOS 
$6.1909 
↓4.1% 
$6.45M
ALGO 
$1.3699 
↑1.3% 
$6.04M
STORJ 
$2.5171 
↓3.8% 
$5.37M
ATOM 
$20.952 
↑2.0% 
$4.96M
FLOW 
$35.168 
↓0.5% 
$4.69M
UNI 
$29.463 
↓2.5% 
$4.36M
NANO 
$5.6553 
↓0.07% 
$3.24M
QTUM 
$15.518 
↓7.3% 
$3.24M
KEEP 
$0.7752 
↑13% 
$3.09M
ZEC 
$192.44 
↑4.2% 
$2.58M
OCEAN 
$1.7433 
↓4.4% 
$2.54M
ICX 
$2.6261 
↑5.7% 
$2.36M
LSK 
$7.0662 
↑2.8% 
$2.36M
KAVA 
$6.9189 
↓4.9% 
$2.33M
OXT 
$0.8013 
↑1.0% 
$2.17M
DASH 
$264.69 
↓1.1% 
$2.14M
CRV 
$2.9409 
↓4.2% 
$1.96M
DAI 
$1.0001 
↓0.01% 
$1.95M
COMP 
$451.87 
↓0.8% 
$1.89M
YFI 
$45278. 
↓4.2% 
$1.66M
GRT 
$1.7240 
↓1.7% 
$1.64M
REP 
$55.361 
↑9.9% 
$1.56M
ANT 
$12.048 
↓0.6% 
$1.5M
AAVE 
$358.40 
↓3.3% 
$1.47M
REPV2 
$55.869 
↑9.2% 
$1.19M
KNC 
$3.3166 
↓0.15% 
$1.15M
SNX 
$19.258 
↓3.3% 
$1.1M
ETC 
$18.662 
↓4.8% 
$875K
EWT 
$17.223 
↓4.9% 
$867K
MLN 
$96.553 
↑5.3% 
$704K
PAXG 
$1747.8 
↓0.9% 
$655K
BAL 
$51.559 
↓4.0% 
$387K
GNO 
$169.66 
↑1.3% 
$134K
TBTC 
$60244. 
↑1.2% 
$26.7K



#####################. Trading Volume by Asset. ##########################################

Trading Volume by Asset


The figures below break down the trading volume of the largest, mid-size, and smallest assets. Cryptos are in purple, fiats are in blue. For each asset, the chart contains the daily trading volume in USD, and the percentage of the total trading volume. The percentages for fiats and cryptos are treated separately, so that they both add up to 100%.

Figure 1: Largest trading assets: trading volume (measured in USD) and its percentage of the total trading volume (April 10 2021)



Figure 2: Mid-size trading assets: (measured in USD) (April 10 2021)



Figure 3: Smallest trading assets: (measured in USD) (April 10 2021)



#####################. Spread %. ##########################################

Spread %


Spread percentage is the width of the bid/ask spread divided by the bid/ask midpoint. The values are generated by taking the median spread percentage over each minute, then the average of the medians over the day.

Figure 4: Average spread % by pair (April 10 2021)



.


#########. Returns and Volume ############################################

Returns and Volume


Figure 5: Returns of the four highest volume pairs (April 10 2021)


Figure 6: Volume of the major currencies and an average line that fits the data to a sinusoidal curve to show the daily volume highs and lows (April 10 2021)



###########. Daily Returns. #################################################

Daily Returns %


Figure 7: Returns over USD and XBT. Relative volume and return size is indicated by the size of the font. (April 10 2021)



###########. Disclaimer #################################################

The values generated in this report are from public market data distributed from Kraken WebSockets api. The total volumes and returns are calculated over the reporting day using UTC time.

Coinsmart. Beste Bitcoin-Börse in Europa
Source: https://blog.kraken.com/post/8593/kraken-daily-market-report-for-april-09-2021/

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