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appear to be dispositive of the issue presented in the case at
bar.” Id. at 1149.
In disposing of the Government's argument that the
“inextricable connection” between the intangible information and
the tangible tapes in Texas Instruments, Inc. v. United States,
supra, was not replicated in Comshare, Inc. v. United States,
supra, and that “sound waves reverberating through the earth's
crusts” are distinguishable from the “thought processes of the
people who developed the master source code”, the Sixth Circuit
stated:
We find neither of these arguments persuasive.
Sound waves and brain waves are about equally
incorporeal, it seems to us--and the connection between
the information and the medium embodying it is no less
inextricable in this case than it was in Texas
Instruments, or, for that matter, in the Disney cases.
[Id. at 1149.]
The court believed that “[w]hat matters, under Texas Instruments,
is that the value of the source code and the associated
intangible rights was entirely dependent upon the existence of
the tapes and discs.” Id. In addition, the Sixth Circuit was
not persuaded by the assertion in Bank of Vermont v. United
States, 61 AFTR 2d 88-788, 88-1 USTC par. 9169 (D. Vt. 1988),
that a computer program is not inextricably connected to the
medium on which it is stored.
The court in Bank of Vermont held that computer software
consisting of application programs stored on magnetic tapes was
intangible property and, therefore, ineligible for the ITC. Id.
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