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right to transfer the software load in conjunction with a
transfer of the digital switch without NTI's consent. Respondent
attempts to characterize that right as a “right without
substance” because any new owner of the digital switch would have
to acquire a new software load, unless the switch was used in the
same location. That condition, however, appears relatively
unrestrictive in light of Sprint's trade of approximately 30
similar digital switches with ConTel Co., in the late 1980s,
which resulted in none of the switches actually changing
location. Lastly, the Sprint/NTI agreement provided that the
risk of loss with respect to the digital switch, including the
NTI software load, would pass to petitioner upon delivery.
Respondent points to certain provisions in the Sprint/NTI
agreement as evidence that the benefits and burdens of ownership
did not pass from NTI to petitioner. In particular, respondent
focuses on certain provisions in the Sprint/NTI agreement that
provide that the software transferred with the digital switch
manufactured by NTI was to be treated as the exclusive property
and trade secret of NTI and that petitioner was under certain
obligations to protect NTI’s interest in the software. The
provisions of the Sprint/NTI agreement cited by respondent all
relate to NTI’s interest in the intellectual property underlying
the NTI software load. Those provisions protect, reinforce, and
extend NTI’s intellectual property rights in that software.
NTI’s retention of those rights is consistent with the conclusion
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