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any other programming language. Thus, operating and applications
software, which is the product of converting a source code by
means of a compiler into configurations of machine-readable
computer language known as executable code, is analogous to the
output tapes that were produced from the field tapes using a
digital computer. See Texas Instruments, Inc. v. United States,
551 F.2d at 608 (“the impulses recorded on the field tapes were
taken to a processing center where background noise or signals
were eliminated. With the retained or primary signals sharpened
by the editing process, a ‘final’ or ‘output’ tape was
produced.”). Essentially, for the purposes of applying the
intrinsic value test as interpreted by this Court, the seismic
data were as inextricably bound to the field and output tapes in
Texas Instruments, Inc. v. United States, 551 F.2d 599 (5th Cir.
1977), as the master source codes were to the tapes and disks in
Comshare, Inc. v. United States, 27 F.3d 1142 (6th Cir. 1994),
and the configurations of executable code are to the tapes and
disks in the present case.
D. Weakness of the Intrinsic Value Test
Application of this Court's interpretation of the intrinsic
value test to the facts in Texas Instruments, Comshare, and the
present case does not produce meaningful distinctions that
justify differential treatment for purposes of the ITC. Indeed,
our interpretation of the intrinsic value test calls into
question the Fifth Circuit's application of the very test it
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