Can You Copyright Coffee Pods?

Cory Doctorow explains why Keurig is planning to fight off-brand coffee pods:

The reason they’re adding “DRM” to their coffee pods is that they don’t think that they make the obviously best product at the best price, but want to be able to force their  customers to buy from them anyway. So when, inevitably, their system is cracked by a competitor who puts better coffee at a K-Cups & Podslower price into the pods, Keurig strikes me as the kind of company that might just sue. And not only sue, but keep on suing, even after they get their asseshanded to them by successive courts. With any luck, they’ll make some new appellate-level caselaw in a circuit where there’s a lot of startups — maybe by bringing a case against some spunky Research Triangle types in the Fourth Circuit.

Now, this is risky. Hard cases made bad law. A judge in a circuit where copyright claims are rarely heard might just buy the idea of copyright covering pods of coffee. The rebel forces that Keurig sues might be idiots (remember Aimster?). But of all the DRM Death Stars to be unveiled, Keurig’s is a pretty good candidate for Battle Station Most Likely to Have a Convenient Thermal Exhaust Port.

McArdle compares Keurig’s move to that of printer companies:

That’s why printer manufacturers have been waging a long war against knockoff toner cartridges. Most people think that this is a case of companies trying to “gouge” you on the ink, but from the firms’ point of view, if they can’t make it on the consumables, they have to charge more for the printer, which consumers hate. However, the reason that printer manufacturers have been waging such a long war against knockoffs is that it’s hard to win. “Educate” the consumer all you want about the benefits of genuine Hewlett-Packard Co. ink; a lot of them still want to save a few bucks.

Olivia Solon notes that coffee makers are “quite the litigious bunch”:

This may be because the global coffee capsule market is estimated to be worth $6.6 billion (£3.9 billion). In April 2013, Nespresso (well, parent company Nestec) took Dualit to court in the UK for infringing a European Patent for supplying coffee capsules that worked with the former’s machines. In August 2012, Nestec took the Ethical Coffee Company to court in Germany for making coffee capsules under the brands “Espresso” and “Esprimo” that could fit into Nespresso machines. In both cases, judges ruled that there had been no infringement.

In October 2013, Nestec took its case to the European Patent Office, taking on several companies making pods for Nespresso machines. These included DEMB Holding, Distribution Casino France, the Ethical Coffee Company and Casa del Caffe Vergano. While the case in the US is an antitrust one, the European cases all focus on patent law, particularly on whether if you make replaceable coffee capsules you are “making” the patented technology as a whole or not. The courts seem to think not.