purchasing a printer and toner cartridge could read the Toner Loading Program from the printer; so SCC did not circumvent an access control on the Toner Loading Program either. The court also rejected the district court's conclusion that the interoperability defense did not apply. Since SCC had offered testimony that its chips did indeed contain independently-created programs in addition to Lexmark's Toner Loading Program, the Toner Loading Program could be seen as necessary to allow interoperation between SCC's own programs and the Lexmark printer. Concurring opinion In a concurring opinion, Judge Merritt agreed with Judge Sutton on the outcome of this particular case, but also indicated that he would go farther: He opined that even if the programs involved were more complex (and thus more deserving of copyright protection), the key question would be the purpose of the circumvention technology. Under his proposed framework, if a third party manufacturer's use of a circumvention technology was intended only to allow its products to interoperate with another manufacturer's—and not to gain any independent benefit from the functionality of the code being copied—then that circumvention would be permissible. Concurring/dissenting opinion Judge Feikens also wrote an opinion, agreeing with many of the majority opinion's results (though sometimes for different reasons), but disagreeing with its conclusion on the Toner Loading Program. Concerning the copyrightability of the Toner Loading Program, he found that the record supported Lexmark's claim that the program could have been implemented in any number of ways, and therefore Lexmark's implementation was creative and copyrightable. Agreeing that the record was inadequate for the district court to conclude that the Toner Loading Program was a "lock-out code", he noted that Lexmark's expert had testified that the entire Toner Loading Program process could be turned off by flipping a single bit in the chip's code, and that it should have been possible for SCC to discover this; so copying the program may not have been practically necessary too. On the DMCA counts, Feikens agreed that Lexmark had not established a violation with regards to the Toner Loading Program, but for a very different reason than that found by the majority opinion. He noted that SCC had testified that it had not even been aware that the Toner Loading Program existed; it had copied the data on the Lexmark printer chip (including the Toner Loading Program) purely in an attempt to bypass the protection on the