Inhale, Inc. v. Starbuzz Tobacco, Inc.

concurring in part:

I concur with the majority’s opinion, except for the part of Part II.C which discusses the level of deference owed to the Copyright Office’s interpretations of the Copyright Act. The text of 17 U.S.C. § 101 does not suggest that “distinctiveness” is an element of separability. Because the statute is not ambiguous in this respect, it is unnecessary to look to the Copyright Office for further guidance.

Once we start engrafting administrative interpretation to our opinions, there is a tendency to look elsewhere than the text of the enactments of Congress. This misplaces the power of enactment of laws from the legislative to the administrative branch and is contrary to my concept of the separation of powers.

Opinion by Judge O’SCANNLAIN; Concurrence by Judge BEA.

ORDER

The opinion filed January 9, 2014, and published at 739 F.3d 446 , is amended as follows:

On slip opinion page 8, after and before the beginning of Part III, add the following as a new paragraph:

§ 101 . Here, though, Inhale does not argue in its opening brief that the exterior shape of the drooping ring is conceptually separable because the interior shape of the hookah does not protrude into the ring. Instead, its theory is that the hookah’s “outer skin,” from top to bottom, can be peeled away and analyzed separately. Therefore, its argument in the petition for rehearing, that the exterior shape of the drooping ring is uniquely separable, is waived. See Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.1994). In addition, we emphasize that Inhale does not argue that the imagery on the…