The Copyright Office Review Board affirmed the rejection of designs for Spindrift Spiked Sparkling Water cans. The designs lacked the minimal level of creativity, according to the Board, both in their individual elements and the combination of elements.

Interestingly, Spindrift argued that the Copyright Office had already registered its similar designs:

The Board distinguished these designs as having more elements. The first one above had more short phrases: “We squeezed 2/3 of a real cucumber into this 8-pack of sparkling water[;]” “Just sparkling water & real squeezed fruit. yup, that’s it[;]” and “Unsweetened. 5% juice. Serve chilled.” Likewise, the Board found the second design had more individual elements: “, only the specific combination of textual, pictorial, and graphic elements found on the 12-pack design is sufficiently creative. By contrast, the combination of elements in each of the Works includes fewer short phrases and colors.”

The Federal Circuit, sitting en banc, heard oral argument in LKQ v. GM. The case presents the question “Does KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), overrule or abrogate In re Rosen, 673 F.2d 388 (CCPA 1982), and Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100 (Fed. Cir. 1996)?”

Mark Lemley, representing LKQ v. GM, argued that the CAFC should overrule its prior case Rosen-Durling, which provides a fairly narrow test of obviousness for design patents based on references. That approach is at odds with the Supreme Court’s approach to obviousness (for utility patents) in KSR. GM argued for maintaining the Rosen-Durling test. The SG’s Office argued for something in between. You can find the briefs here.

Link to audio of oral argument.

https://www.youtube.com/live/FqMY7tcJtI8?si=WAv-VsoLP6gqUEuD