Norwest Corporation and Subsidiaries - Page 116

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          not controlling as to whether it is necessarily research because of         
          the different environments in which the tasks are attempted.                
          Further, Dr. Davis contended that technical risk49 cannot entirely          
          be eliminated from any project, even up to and through the time of          
          production.                                                                 
               Dr. Davis explained that routine software development is               
          characterized by the use of commercially available tools or known           
          methodologies, both applied within their expected limits, and               
          skilled practice.50  He stated that routine tasks often include the         
          moving of an existing application to a new operating system or to           
          a new machine, translating code from one programming language to            
          another, or putting a new interface on an existing code.  Dr. Davis         
          asserted that these projects, although difficult and challenging            
          and requiring considerable time, effort, and skill, are not                 
          research but merely the typical part of any development effort.             
               Further, Dr. Davis maintained that although routine software           
          development often involves uncertainty, trial and error, and                
          experimentation, such factors do not convert the projects into              

               49   Dr. Davis defined technical risk in his initial report            
          as arising "when we don't know whether it's possible to                     
          accomplish the task in the current state of the art."  However,             
          at trial, Dr. Davis amended his definition by stating that                  
          technical risk can arise due to constraints in, for example, the            
          type of hardware used or the resources available.  In this                  
          regard, once again Dr. Davis suggested that technical risk, like            
          his definition of research, was a matter of degree.                         
               50   As an analogy, Dr. Davis referred to the building of a            
          skyscraper which, although a large and difficult task, involves             
          the application of known methodologies and skilled practice.                



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