dissenting, with whom Judge CHERTOFF joins.
I.
Ideas cannot be protected by copyright. Section 102(b) of Title 17 of the U.S.Code so provides. The expression of an idea may, however, be protected. This principle that copyright does not protect ideas, but only their expression, is notoriously *291difficult to apply.8 See Whelan Assoc., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1234 (3d Cir.1986); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir.1983). As Judge Learned Hand stated in the last of his many influential opinions on copyright law, “[ojbviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960).
In defining an idea, as distinguished from its expression, the distinction is governed — at least in part — by the two contradictory imperatives of copyright: protection and dissemination.
Precisely because the line between idea and expression is elusive, we must pay particular attention to the pragmatic considerations that underlie the distinction and copyright law generally. In this regard, we must remember that the purpose of the copyright law is to create the most efficient and productive balance between protection (incentive) and dissemination of information.
Whelan Assocs., 797 F.2d at 1235; see also id. at 1237 (stating that “the basic purpose underlying the idea/expression distinction [is] the ‘preservation of the balance between competition and protection reflected in the patent and copyright laws’ ”) (quoting Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971)); Apple Computer, 714 F.2d at 1253 (quoting Kalpakian).
The definition of the “idea” is often the most difficult aspect of the idea/expression dichotomy. As Judge Hand explained in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930), the difficulty is that “idea” vis a vis “expression” can be manipulated by viewing the interest protected by copyright at differing levels of abstraction. See Nash v. CBS, Inc., 899 F.2d 1537, 1540 (7th Cir.1990) (Easterbrook, J.) (discussing Nichols). At the “expression” end of the spectrum, if protection is limited to the words as they appear on the page — a strictly literal application of the term “expression” — the protection for original Writings envisioned by the Constitution would be severely weakened. An author could imitate the plot, exposition, and all other original elements of a novel so long as he changed the wording. Id.; Nichols, 45 F.2d at 121. At the “idea” end of the spectrum, an author could claim property rights to an entire genre. If this were possible, Wilkie Collins, by writing The Moonstone, would have captured the mystery story; the innovators of television’s Survivor reality series might have deprived the public of The Amazing Race, Fear Factor, or even Temptation Island. See Nash, 899 F.2d at 1540.
In the present case, the definition of Southco’s “idea” is at the heart of my disagreement with the majority. Is South-eo’s “idea” the use of a code to describe products or is it the use of predetermined numbers to portray given characteristics of a particular product? The majority has determined that it should be the latter. I believe that it is closer to the former — and that the numbering rules and the particu*292lar numbers that Southco chooses to portray what it determines to be the relevant characteristics of a particular product are the expression of its idea. Moreover, it is this choice of different numbers to express selected characteristics in a product description code that creates the originality in Southco’s system.
The majority, however, in misapplying the idea/expression dichotomy, has adopted an unduly restrictive understanding of the originality requirement. As in Southco I, the majority has adopted an overly broad definition of the “idea.” By deciding that the determination of the part number is inherent in the “idea,” the majority has pushed all of Southco’s creative work onto the unprotected “idea” side of the idea/expression dichotomy. This over broad definition of the “idea” leads inexorably to the majority’s conclusion — that Southco’s part numbers are undeserving of copyright protection because they lack originality. As stated by the majority, “the Southco product numbers are not ‘original’ because each number is rigidly dictated by the rules of the Southco system.” Majority at 282; see Southco I, 258 F.3d at 151-52.9
In so stating, the majority has failed to consider the ramifications of its choice, or even to recognize that a choice exists. By extending the “idea” through to point in the creation of the code at which the number is inevitable, the majority has concluded that the rules constitute an unprotecta-ble system or idea. Majority at 282. This “literal” approach is akin to limiting copyright protection in a novel to the words as they appear on the page. Nash, 899 F.2d at 1540.
I believe that a more sensible middle ground is available. If one adopts a slightly broader focus, Southco’s numbering rules (and the resulting numbers) will be seen as one of many possible expressions of the idea of using a code to convey product specifications.
Southco could, of course, go farther still, to the far end of the spectrum, and claim that the unprotectable idea is that of encoding information about product identity. Then, by virtue of its innovative scheme, Southco could prevent others from expressing any part numbers that contain coded product characteristics. This would be going too far — and would analogize to *293the “genre” claim discussed in Nash and Nichols. Id. Granting Southco the exclusive right to create encoded part numbers would stifle innovation. But is it not equally clear that the majority’s approach — which would limit expression to the literal elements of a work and then bar copyrightability for lack of originality — is too narrow?
The majority’s too broad definition of the “idea” risks under-rewarding Southco (or any other entity) for the creativity invested in creating coded descriptions of its products. On the other hand, adopting the middle approach would not impair Ka-nebridge’s ability to implement its own part numbering system, choosing which characteristics are to be conveyed for each product line and how to convey them.10
If there were only one sensible way to achieve the goal of encoding product specifications for captive fasteners (or any other product line), this case would be a different case — either or both the scenes a, faire or the merger doctrines would prohibit extending copyright protection to South-co’s numbers.11 However, there are myriad codes to choose and product characteristics to describe. The existence of these possibilities renders the scenes a faire and merger doctrines inapplicable.
Justification for my position can be seen in the fact that, while the selection of product specifications to be encoded in a given product line may be dictated largely by industry considerations, there would seem to be no limit to the number of ways those specifications could be encoded. For instance, Southco uses the first two digits of each nine-digit part number to indicate product line, but it could use three digits (perhaps to easily accommodate more than ninety-nine product lines), or letters instead of numbers, or a combination of letters and numbers, or even simple abbreviations in lieu of coded letters or numbers. All these possible variations apply to each set of digits in the part number, to the order of the sets, and to the identification of which product attributes should be grouped together in the same set. Of *294course, there is nothing predetermined about the length of a part number. For instance, Southco could choose to use more than nine digits to accommodate products with too many values to be easily expressed in only nine.12 These seem like relatively mundane choices, but, as the Supreme Court indicated in Feist, “the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, ‘no matter how crude, humble, or obvious’ it might be.” 499 U.S. at 345, 111 S.Ct. 1282 (quoting 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 1.08[C] (1990)). Further, these are precisely the types of prosaic choices deemed sufficiently creative to make numeric dental procedure codes copyrightable in American Dental Association v. Delta Dental Plans Association, 126 F.3d 977, 979 (7th Cir.1997).13
Moreover, placing Southco’s numbering system on the expression side of the idea/expression dichotomy would also be consistent with the reasoning of the Eighth Circuit Court of Appeals in Toro Co. v. R & R Products Co., 787 F.2d 1208 (8th Cir.1986). There, the court rejected the district court’s holding that the appellant’s numbering system for lawnmower replacement parts was an uncopyrightable “system” per § 102(b):
[T]he district court’s literal application of the section’s language — that appellant’s parts numbering system is not copyrightable because it is a “system”— cannot stand. All the idea/expression dichotomy embodied in § 102(b) means in the parts numbering system context is that appellant could not copyright the idea of using numbers to designate replacement parts. Section 102(b) does not answer the question of whether appellant’s particular expression of that idea is copyrightable.
Id. at 1212; see also Autoskill Inc. v. National Educational Support Systems, Inc. 994 F.2d 1476, 1493, 1495 n. 23 (10th Cir.1993) (citing Toro for the proposition *295that “more than literal application of § 102(b) is required”). The Toro court ultimately concluded that the parts numbering system in that case was not copyrightable because the appellant’s decision to arbitrarily assign a random part number to each new product “lack[ed] the requisite originality for copyright protection.” 787 F.2d at 1213; see also Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1373 (10th Cir.1997) (citing Toro in support of conclusion that the “arbitrary selection of a combination of three or four numbers” for use as command codes used to instruct a piece of computer hardware “required de minimis creative effort”). However, the Toro court stated that “[t]his is not to say that all parts numbering systems are not copyrightable. A system that uses symbols in some sort of meaningful pattern, something by which one could distinguish effort or content, would be an original work.” 787 F.2d at 1213.14 As discussed above and as verified by Robert Bisbing in his affidavit recounting the creation of the descriptive code for the captive screw,15 Southco made numerous creative choices in developing its coded product numbering system and later adapting that system to accommodate new product lines. Accordingly, both Southco’s numbering schemes and its numbers are entitled to copyright protection.
This result is consistent with our own precedent. In Whelan Associates, we were faced with the issue whether copyright law protects the non-literal structure of a computer program as well as its literal elements (its source and object code). 797 F.2d at 1234. Squarely addressing the line-drawing issue, we devised a rule for dividing ideas from expressions in utilitarian works:
[T]he purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea.... Where there are various means of achieving the desired purpose, then the particular means *296chosen is not necessary to the purpose; hence, there is expression, not idea.
Id. at 1236. We explained that this rule would further the purpose of balancing the imperatives of access and protection by creating an incentive commensurate with the value and importance of program structure while not giving programmers a “stranglehold” over the means to achieve a particular function. Id. at 1237. We held that the program structure in that case was not essential to its purpose — supporting the business operations of a dental laboratory — because other programs with different structures performed the same function.16 Id. at 1238. Thus, the court explicitly recognized that non-literal elements of a utilitarian work could be considered protectable expressions rather than unprotected ideas, see, e.g., id. at 1237, 1239, and devised a sensible means for deciding the issue. The Whelan Associates test strongly supports the position that Southco’s numbering of products should fall on the “expression” side of the line. The purpose of the scheme is to encode relevant product specifications in part numbers, but Southco’s particular scheme is not necessary to achieve this end — other schemes could provide the same information.
One difference between Southco’s numbers and the computer program in Whelan Associates warrants discussion. There is no doubt that the literal elements of the computer program at issue in Whelan Associates — the object and source code— were protected by copyright. 797 F.2d at 1233. Source code does not follow automatically from program structure, whereas Southco’s part numbers are dictated by the numbering schemes applicable to each product line. The issue in Whelan Associates was whether the original program structure should be protected in addition to the original source and object codes, id. at 1233-37, whereas in this case the issue is whether Southco’s encoded numbers should be protected because of the originality of its numbering rules. However, this distinction is immaterial to Whelan Associates’ s idea/expression test for non-literal elements of utilitarian works. Once Southco’s numbering rules are properly placed on the expression side of the line, the distinction between Southco’s rules and the resulting numbers is legally insignificant. The numbers are part of Southco’s original expression, even if they are dictated by another part of that expression - the numbering rules.
I further note that the majority’s decision to divide Southco’s numbering rules from the numbers themselves for purposes of evaluating Southco’s copyright claim may suggest and certainly creates an unjustified and unexplained bias against copyright protection for all rule-based expression. Systematic or rule-driven thought will usually “precede” expression, as it does here. That is, Southco’s original work had to be completed before its numbers were actually expressed, and the rules governing that expression may be readily conceptualized apart from the numbers themselves. In contrast, original artistic or literary thought is usually bound up inextricably in its expression. South-co’s numbering scheme is no less creative or original simply because it is governed by rules rather than the more “indeterminate ideas” typically associated with art or literature. See Majority at 286. However, *297if the majority’s division of Southco’s rules from their expression were applied generally, large swaths of rule-based original works would be denied protection.
For example, Weight Watcher’s point system for rating foods could be appropriated by Jenny Craig or any other competitor if it could be shown that Weight Watcher’s point allotments followed predetermined formulae (based on calories per ounce or other considerations). Also, many compilations that would seem to pass Feist’s low creativity threshold would be denied protection if they happen to be the product of predetermined rules. A list of restaurants broken down by price range, corking fees, handicapped accessibility, or any other rule-driven criteria would be excluded. On the other hand, a list of restaurants based on more “indeterminate” criteria, such as value or quality, would be protected. See CCC Info. Servs., 44 F.3d at 70 (implying that all of these restaurant lists should be protected). This discrepancy strikes me as both unprincipled and unprecedented.
In this regard, the notion that “expression” should be limited to the literal elements of a given work has long been rejected in the context of aesthetic literary works. E.g., Nichols, 45 F.2d at 121 (“It is of course essential to any protection of literary property, whether at common-law or under the statute, that the right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations.”). More recently, the Second Circuit concluded this restrictive view would unduly limit protection for certain utilitarian works as well. As the court explained in CCC Information Services v. Maclean Hunter Market Reports, Inc., 44 F.3d 61, 70-72 (2d Cir.1994), a broad rule limiting “expression” to the literal elements of a work would substantially deny protection to compilations, notwithstanding the express provision of the copyright statute conferring protecting such works. See 17 U.S.C. § 103(b). A compilation may be original in one of two ways (and often both): the author may contribute original written expression to the compiled facts, or the author may exercise creativity and originality in the selection and arrangement of the compiled facts. See Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 348-49, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). While facts may not be copyrighted, original selections and arrangements of facts are entitled to protection. Id. Thus, with respect to the selection and arrangement of non-copyrightable facts, “it is almost inevitable that the original contributions of the compilers will consist of ideas, ” CCC Info. Servs., 44 F.3d at 70 (emphasis in original), in the sense that the compilers’ original contributions are not literally expressed in the copyrighted work. A literal interpretation of the idea/expression dichotomy - one which limits protection to the literal elements of any given work - would deny protection to this type of original contribution.
II.
Finally, the majority’s flawed application of the idea/expression dichotomy is not saved by its reliance on the “short phrases” regulation. The regulation provides that “[wjords and short phrases such as names, titles, and slogans” are “examples of works not subject to copyright and applications for registration of such works cannot be entertained.” 37 C.F.R. § 201.1(a). According to the United States, which appeared as amicus cwnae in this case, the Register of Copyrights, relying on this regulation, “routinely” and categorically denies protection to all part numbers, no matter how creative. While the majority both agrees with and defers to the government’s position, I think this *298position is wrong and that deference is inappropriate.
Apart from its claim regarding the practice of the Register of Copyrights, the government provides no support for its position that Southco’s part numbers should be considered “short phrases” covered by § 202.1(a). In fact, the regulation does not appear to contemplate numerical symbols at all. As Southco persuasively argues, “the term ‘phrase’ ... is a grammatical term peculiarly adapted to copyrightable subject matter expressed in words.” Furthermore, no published case has held that numbers should be considered “short phrases.”
More important, even if Southco’s part numbers were properly considered “short phrases,” § 202.1(a) is best understood as a rough starting point for an originality analysis, not a shortcut for avoiding this analysis. Short phrases are typically un-protectable because they are either insufficiently independent or insufficiently creative or both, see 1 William F. Patry, Copyright Law and Practice 333 (1994), but it does not make sense to state categorically that no combination of numbers or words short enough to be deemed a “phrase” can possess “as least some minimal degree of creativity.” Feist, 499 U.S. at 345, 111 S.Ct. 1282. In fact, the plain language of the regulation does not lend itself to such a construction. Section 202.1(a) states that “short phrases such as names, titles, and slogans” are not copyrightable. Thus, other short expressions dissimilar to names, titles, or slogans are not covered by the regulation. See Applied Innovations, Inc. v. Regents of University of Minnesota, 876 F.2d 626, 636 (8th Cir.1989) (holding that test statements were not “short phrases” under § 202.1 because they were not titles, names, or slogans). Therefore, “it would seem (notwithstanding [37 C.F.R. § 202.1(a) ]) that even a short phrase may command copyright protection if it exhibits sufficient creativity.” 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 2.01 [B] (2000) (hereinafter Nimmer on Copyright).
In fact, it appears that no court has relied on § 201.1(a) to hold that an otherwise original expression was uncopyrightable just because it was brief enough to be deemed a short phrase.17 Rather, courts typically invoke § 201.1(a) in support of a determination that a particular work lacks any “creative spark,” Feist, 499 U.S. at 345, 111 S.Ct. 1282, not as a substitute for that analysis. E.g., Murray Hill Publ’ns, Inc. v. ABC Communications., Inc., 264 F.3d 622, 632-33 (6th Cir.2001) (citing § 201.1(a) in support of holding that radio DJ’s tag-line, “J.P. on JR in A.M.,” was “nothing more than a short phrase or slogan, dictated to some degree by the functional considerations inherent in conveying the desired information about McCarthy’s morning show, i.e., whose morning show, what radio station, and what time.”); CMM Cable Rep. v. Ocean Coast Properties, 97 F.3d 1504, 1519-20 (1st Cir.1996) (citing § 201.1(a) in support of holding two hackneyed phrases used in a radio show promotion were uncopyrightable because their “ordinary employment phraseology ... lacks the minimal level of originality”). Conversely, the Applied Innovations court refused to label short declarative statements “short phrases” where that court determined that the statements were suffi*299ciently original. See 876 F.2d at 634-36 (rejecting defendant’s argument that simple statements used in psychological test were “short phrases” under § 202.1 and holding that test statements met the minimal originality requirement for copyright protection).
I further conclude that deference to the Register of Copyright’s position is inappropriate. First, there is no plausible claim that Chevron deference applies here. Such deference may be appropriate where the Register of Copyrights is empowered to promulgate regulations, see Cablevision Systems Development Co. v. Motion Picture Ass’n of America, Inc., 836 F.2d 599, 608 (D.C.Cir.1988), and Satellite Broadcasting and Communications Ass’n of America v. Oman, 17 F.3d 344, 347 (11th Cir.1994), but here the government’s position rests largely on two letter decisions denying registration to works of unrelated third parties. Even if we were considering an infringement action involving one of the works at issue in either of those letters, we would still review the Register’s resolution of legal issues (such as copy-rightability) de novo.18 A fortiori, the Register’s opinion concerning the copy-rightability of these other works cannot limit our consideration of the issue in this case. Chevron deference is inapplicable where Congress has not delegated authority to the agency to make rules or decisions carrying the force of law. United States v. Mead, 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001).
Of course, agency interpretations of questions of law may still have the power to persuade even if they lack the power to control. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). The measure of Skidmore deference varies with the circumstances, including “the degree of the agency’s care, its consistency, formality, and relative expertness, and ... the persuasiveness of the agency’s position.” Mead Corp. 533 U.S. at 227-228, 121 S.Ct. 2164 (internal citations omitted). Without exhaustively discussing these factors, it seems clear to me that the level of deference due to the Register of Copyright’s position in this case is minimal at best.
Most importantly, I am far from convinced that the Register of Copyrights “routinely” rejects part numbers, no matter how creative, solely on ground that they constitute “short phrases.” The government’s claim in this regard is either overstated or under-supported. The government offers only two letter decisions from the Examining Division of the Copyright Office as evidence of this supposedly routine practice. While both concern part numbers, and both rely on § 202.1(a), there is no indication that the numbers at issue in those cases involved any creative expression at all. In fact, the more lengthy of the two letters cites Toro in support of its contention that the parts numbers in the applicant’s parts price list lacked originality. As discussed above, Toro made clear that sufficiently creative parts numbers were entitled to protection. These letter decisions are hardly models of clarity, making it difficult to discern the reasoning of the Examining Division in each case, much less to extrapolate from these letters to confidently state that the *300Copyright Office takes the categorical position advanced by the United States.19 It seems just as likely to me that in each case the Examining Division was not denying copyright protection solely because the numbers were “short phrases,” but because they lacked sufficient creativity to warrant copyright protection. Indeed, I suspect that the position advanced to us by the Register of Copyrights may have been adopted for the first time in this litigation. If so, it would of course be entitled to no deference whatsoever. Bowen v. Georgetown University Hosp., 488 U.S. 204, 212, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988).
The lack of formality and care involved in the agency’s determination also counsel against deference here. As the government candidly admits, the two letter decisions in question were written by a staff attorney for the Examining Division of the Register of Copyrights in response to the disappointed applicant’s appeal of an earlier denial of registration. A second appeal before an Appeals Board was available, but apparently not taken, in either case.20 Neither of the letter decisions explain why parts numbers should be considered “short phrases” covered by the regulation. Furthermore, the shorter of the two decisions consists largely of boilerplate — the phrase “part number” does even appear in the body of the decision' — while the longer decision misrepresents several relevant cases discussed earlier, including American Dental and CCC Information Services.
Finally, for the reasons discussed above, I find the Register’s position wholly unconvincing. It may well be that short expressions must hurdle a slightly higher creativity bar than longer works. See 1 Nimmer on Copyright § 2.01[B] at 2-17; Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 908 (3d Cir.1975) (citing Nimmer). This is sensible; otherwise relatively mundane phrases or slight variations on common expressions might be taken out of the public domain. However, the majority is incorrect insofar as it contends that South-co’s part numbers, even if quite creative, are unprotectable simply because they are short.
For the above reasons, I respectfully dissent and would reverse the District Court’s grant of summary judgment to the defendant.
. 17 U.S.C. § 102(b) provides that "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” See Whelan Assocs., Inc. v. Jaslow Dental Laboratory, Inc., 797 F.2d 1222, 1234 (3d Cir.1986) (noting that legislative history makes clear this section was intended to codify the idea/expression dichotomy).
. The Majority also states that Southco "does not assert any claim of copyright in its numbering system, but instead focuses on the part numbers themselves.” Majority at 282. Section 102(b) of course excludes copyright protection for a "system” as well as for an "idea.” That there is such an interchangeability of the concepts of "system” and "idea” may be seen in Southco's Southco I Answering Brief at page 24 where Southco states "Southco does not seek to copyright the idea of its parts numbering system but only its expression of it.” "System” is also, however, used at times by many of us to indicate not just an idea but the means by which an idea is implemented. Used in this manner, "system” for Southco would be the code which it has created to describe its products — the expression of its idea.
In its Southco II Opening Brief at page 34, Southco states that "the prior panel appeared to fully understand that Southco was not claiming infringement by the use of its system for creating part numbers but only in the part numbers themselves....” “System” appears again here to be used in the context of "idea.”
This language may, however, be the source of the Majority's statement that Southco does not assert any claim of copyright in its "numbering system.” To the extent that the Majority interprets this statement to indicate that Southco does not claim protection of its coding process, as opposed to protection of its idea to develop a coding system, I believe that the Majority’s interpretation reflects its mistaken location of the line between "idea” and "expression” and, moreover, that the Majority's interpretation does not reflect the originality and creativity arguments that Southco has been pressing throughout this litigation.
. Kanebridge might be impaired somewhat in its ability to compete with Southco in the marketplace for captive fasteners and other products, but this is not the type of competition copyright law is concerned with. Copyright law is concerned with Kanebridge's ability to compete with Southco’s part numbers, not with Southco's parts. See Apple Computer, 714 F.2d at 1253 (rejecting Franklin’s contention that granting copyright protection to Apple's operating system programs would frustrate Franklin's business goal of achieving total compatibility with application programs written for the Apple II, explaining that "that is a commercial and competitive objective which does not enter into the somewhat metaphysical issue of whether particular ideas and expressions have merged”).
. The merger doctrine is a variation or application of the idea/expression dichotomy. "When the idea and the expression of the idea coincide, then the expression will not be protected in order to prevent creation of a monopoly on the underlying 'art.' ” Educational Testing Services v. Katzman, 793 F.2d 533, 539 (3d Cir.1986). If, on the other hand, " 'the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result.’ ” Apple Computer, 714 F.2d at 1253 (quoting Dymow v. Bolton, 11 F.2d 690, 691 (2d Cir.1926)).
"Scenes a faire are 'incidents, characters or settings which are as a practical matter indispensable ... in the treatment of a given topic.' ” Whelan Assocs., 797 F.2d at 1236 (quoting Atari, Inc. v. North American Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir.1982)). When applied in the context of utilitarian works, this doctrine means that protection is denied to " 'those elements of a work that necessarily result[] from external factors inherent in the subject matter of the work.' ” Dun & Bradstreet Software Services, Inc. v. Grace Consulting, Inc., 307 F.3d 197, 214-15 (3d Cir.2002) (quoting Mitel, 124 F.3d at 1375). The rationale for the rule is that elements dictated by external constraints necessarily lack originality. Id.
. For example, Robert H. Bisbing explained that while the second two-digit group in each part number normally indicates whether a product is an assembled part or a component part, for at least one product line (an enclosed retractable captive screw), he decided to use only one digit to express this information because he determined he would need the remaining six digits (as opposed to only five) to express the remaining pertinent product values. Southco II, 324 F.3d at 193. If Southco used a ten-digit system, Bisbing would not have needed to alter the standard numbering format. This would make number formats more consistent across product lines, and therefore somewhat easier to use. Perhaps Southco did not anticipate ever needing more than nine digits, or perhaps some other technological or operational consideration was at work. The point is that Southco made creative choices regarding the coded expression of product specifications, both when it initially conceived of its system and as it adapted that system to accommodate new product lines over the years.
. The court in American Dental Association gave several examples of original choices made in the numbering format used in the Code on Dental Procedures and Nomenclature:
The number assigned to any one of these three descriptions could have had four or six digits rather than five; guided tissue regeneration could have been placed in the 2500 series rather than the 4200 series; again any of these choices is original to the author of a taxonomy, and another author could do things differently. Every number in the ADA's Code begins with zero, assuring a large supply of unused numbers for procedures to be devised or reclassified in the future; an author could have elected instead to leave wide gaps inside the sequence. A catalog that initially assigns 04266, 04267, 04268 to three procedures will over time depart substantively from one that initially assigns 42660, 42670, and 42680 to the same three procedures.
126 F.3d at 979.
. The Southco I panel seized on the word "effort” to distinguish Toro on the ground that it relied on the “sweat of the brow” or "industrious collection” doctrine later rejected by the Supreme Court in Feist, 499 U.S. at 360, 111 S.Ct. 1282. See Southco I, 258 F.3d at 153. Indeed, the Toro court seemed to rely in part on this discredited doctrine in concluding that the parts numbering system in that case lacked originality. Toro, 787 F.2d at 1213. However, the "sweat of the brow” doctrine has no bearing on Toro’s discussion of the idea/expression dichotomy, including its observation that the proper dividing line is between the general idea of a parts numbering system and an author's expression of that idea in a particular numbering system. Id. at 1212. Once the line has been properly drawn, the issue whether a particular numbering system is sufficiently original turns on whether the system was independently produced and possesses "at least some minimal degree of creativity.” Feist, 499 U.S. at 345, 111 S.Ct. 1282. As discussed in the text, Southco made numerous creative and independent choices in the development and adaptation of its numbering rules.
. See footnote 4 supra. In explaining how he assigned product numbers to a new class of captive screws that included 405 variations, Bisbing stated that the characteristics of the new class differed from those of previous classes. His task was to determine the characteristics which would be relevant to customers and to Southco employees. He then adapted the numbering system to apply to the new line. He elaborated in his Declaration:
These numbers were not dictated by any numbering system. Not only each number as a whole, but each group of digit and each digit in each number was created by me based upon the specific products which I had created and my determination of the values of those products to be represented and the digits to be used. The part number for each new part was created on the basis of my decision.
. It should be noted that the Whelan Associates test does not avoid the indeterminacy of the idea/expression dichotomy - it simply transposes it. Just as the idea/expression test may be manipulated by conceiving of the protected interest at different levels of abstraction, so too the Whelan Associates test may be manipulated by framing the "purpose” of a given work at differing levels of abstraction.
. The only case which approaches such an anomalous result is Matthew Bender & Co. v. West Publ'g Co., 158 F.3d 674, 683 (2d Cir.1998), which held that West’s decisions to shorten case names and capitalize certain letters in case titles were unoriginal and uncreative, and further cited § 202.1(a) for the proposition that even if these decisions were considered original, West's case titles would still not be copyrightable.
. A certificate of registration constitutes pri-ma facie evidence of the validity of the copyright and ownership of the registered work in a subsequent judicial proceeding commenced within five years of the copyright’s first publication. 17 U.S.C. § 410(c); Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290-91 (3d Cir.1991). However, the Register’s decision to deny registration has no legal force whatsoever. Further, the rebuttable presumption that attaches to registered works is an evidentiary rule - it has no apparent application to legal issues such as copyright-ability. Atari Games Corp. v. Oman, 888 F.2d 878, 887 (D.C.Cir.1989) (Silberman, J., concurring).
. In this regard I note that my own search of the LEXIS database of copyright registrations revealed numerous registrations seemingly indistinguishable from the subject matter denied in the two letter decisions offered in this case by the government as evidence of the Register’s "routine” practice. One letter denied registration to a "parts price list” (including, apparently, part numbers) while the other denied registration to six discrete part numbers. Yet my research revealed numerous registered price lists, such as the "Bureo, Inc. Parts numbers and price list” and the “Basco price list.” I also found numerous registrations of part number lists, such as "Computerland InfoSystems - part number configuration master list,” as well as many part number cross-reference, comparison, conversion, or update lists, such as "5046/5335 developer part number is changing,” "Piping products, comparative product part numbers: bull. 8227,” and "PEM- part number conversion table for PEM fastener assemblies with metric threads.” None of these registrations contain any indication that the registration is limited to the compilation of the included material.
I have not actually inspected the registered works listed above; my research has been limited to the information available for each registered work on the LEXIS database. Nonetheless, I think this sampling supports my suspicions that the Register of Copyright’s position is not nearly as longstanding or consistent as it claims.
. The government has offered no decision of this higher authority supporting its position here.