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exertion), can exist as source code on tapes, disks, computer
memory, or written out on paper. As the result of human
creativity and design, copyright or patent protection2 is
available for it. I would therefore conclude that there exists a
material difference between the sound recordings in Texas
Instruments and the computer software purchased by Sprint, and at
issue in Ronnen, and Norwest.
B. Majority's "Traditional Approach"
The Norwest result is based upon an interpretation of the
legislative history of the ITC that the term "tangible" should be
construed broadly and possibly in the absence of copyright
rights. I agree with Judge Jacobs and the other dissenters in
Norwest that the majority's reading of the legislative history is
inappropriate for the reasons stated therein. No purpose would
be served to repeat those arguments. There is, however, an
additional factor in Sprint not present in Norwest. Section 168
requires that property must be tangible to qualify for ACRS
treatment. The majority points out that the ITC and ACRS were
considered by Congress to be in pari materia, and therefore they
extend their expansive construction of "tangible" property to
ACRS. Because I disagree that the legislative history requires
2 Traditionally, software, which is fundamentally a written set
of instructions, was protected under copyright law, and
infringement actions first were brought under copyright law.
Later came a trend to allow patent protection for the design
portion of computer applications. Petry, Taxation of
Intellectual Property, secs. 1.08, 3.04 (1980).
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