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different under the Sixth Circuit's test if the Government could
prove that the information underlying the complex patent could be
transferred via electronic transmission over telephone lines and
that the purchaser could use the information in that form without
receiving a disk, tape, or document. We believe that the
characterization of property for purposes of the ITC should not
depend on the capacity or reliability of “affordable
communications technology” at the time of transfer. Cf.
Comshare, Inc. v. United States, supra at 1143-1144 (suggesting
the contrary conclusion).
In sum, it is reasonable to state that the Fifth Circuit's
test of tangibility set forth in Texas Instruments, Inc. v.
United States, supra, as interpreted either by this Court or the
Sixth Circuit, leads to questionable conclusions in some
instances. In addition, our conclusion in Ronnen v.
Commissioner, supra, and its progeny that computer software is
intangible property is inconsistent with the Sixth Circuit's
conclusion that a master source code embodied in magnetic tapes
and disks is tangible property. Those divergent applications of
the Fifth Circuit's test indicate that there does not exist one
universally applied intrinsic value test; indeed, the courts have
not even settled on a name for the Fifth Circuit's test. Instead
of attempting to refine or reformulate the Fifth Circuit's test,
we believe that resolution of the issue before the Court should
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