Norwest Corporation and Subsidiaries - Page 124

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          Commissioner, 109 T.C. 133, 171-172 (1997); Phi Delta Theta                 
          Fraternity v. Commissioner, 90 T.C. 1033, 1041 (1988), affd. 887            
          F.2d 1302 (6th Cir. 1989).  Thus, while we will rely on the                 
          experts' technical findings, we will generally discount their               
          conclusions with respect to the seven tests.                                
               A.  Strategic Banking System                                           
               Petitioner's expert, Dr. McDermott, contended that at the time         
          SBS, the integrated banking system, was developed, no existing              
          product could have accomplished the increase in data processing             
          capability Norwest required.  He insisted that SBS was subject to           
          several uncertainties, particularly those relating to time and              
          space complexity, software engineering, and user-friendliness.  He          
          concluded that "The painful complexities and ultimate failure of            
          SBS ought to be evidence that there was significant risk due to             


               61(...continued)                                                       
               Dr. Davis' definitions were too academic and did not conform           
          to the language used by Congress.  For example, he stated that              
          "discovery" is the result of an experimental or laboratory                  
          effort, which he defined as "the creation of an isolated                    
          situation intended to mimic the real world in some respects, but            
          tightly controlled in all other respects."  We recognize that Dr.           
          Davis was attempting to explain his understanding of research and           
          experimentation as understood in the computer science community--           
          but in reaching judicial decisions the definitions used by                  
          Congress are controlling.                                                   
               Mr. Teixeira and the Tower Group, as well as Dr. Davis, also           
          assumed that the ultimate goal in research is information rather            
          than a product.  This is inconsistent with the language of sec.             
          41, which clearly permits the ultimate goal to be a product.                
          Also, both of respondent's experts used definitions of                      
          innovativeness that, although more familiar to us, are not                  
          consistent with the language used by Congress in the conference             
          report accompanying the TRA 1986 on the innovativeness test.                



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