Intellectual Property Insights

Analysis and practical guides on intellectual property.

265 articles, checklists, and guides on intellectual property law, written by the attorneys at MC Law. Every piece is general information, not legal advice — for a specific matter, contact the firm.

Intellectual PropertyTrade and Customs

ITC Section 337 Checklist: A Practical Checklist

Section 337 practice punishes omissions more than errors, because the Commission's schedule leaves no room to recover. This checklist is organized by role and phase: the complainant's pre-filing build, the complaint's mandatory contents, the respondent's first thirty days, discovery under ground rules, hearing preparation and the prehearing brief that waives anything left out of it, remedy and bond briefing, and the border enforcement work that follows an order. Items note where complainant and respondent tasks diverge, and each section closes with the failure it exists to prevent. Separate sections address the complainant's pre-filing work and the respondent's first sixty days. Every item is written so that a "no" tells you what to do next.

Casey Scott McKayJanuary 22, 20267 min read

Intellectual PropertyTrade and Customs

Litigating a Section 337 Investigation at the ITC: A Practical Guide

Section 337 practice compresses a full patent trial into roughly nine months and adds a domestic industry case that most complainants have never had to prove. This guide walks through the work in sequence for both complainants and respondents: pre-filing preparation and the financial data collection that must precede it, complaint drafting, the first thirty days after institution, discovery under ALJ ground rules, the evidentiary hearing, post-hearing briefing, Commission review, remedy and bond briefing, presidential review, and the border enforcement work that begins after the order issues. It includes a working calendar, a staffing model, budget guidance, and the errors that most reliably cost cases at the Commission. The compressed ITC schedule is treated as the organizing constraint, with a week-by-week working timeline. It also covers the district court companion case and when to stay it.

Casey Scott McKayJanuary 21, 202628 min read

Intellectual PropertyTrademark Registration

Common-Law Rights, the Supplemental Register, and the Principal Register: A Practical Guide

People often assume a trademark either is registered or it is not, but U.S. law actually offers three distinct tiers of protection: common-law rights that arise automatically from use, registration on the Supplemental Register, and registration on the Principal Register. Each tier protects a different kind of mark and confers a very different bundle of rights. This guide explains, for lawyers and business owners alike, how rights arise from use, what marks qualify for each tier, the geographic reach of each, and the presumptions and remedies they provide. It details the benefits the Principal Register offers that nothing else does—constructive notice under Section 22, nationwide constructive use under Section 7(c), prima facie validity under Section 7(b), and incontestability under Sections 15 and 33(b)—and explains exactly what the Supplemental Register withholds and what it still delivers. It traces how a descriptive mark climbs from common law to Supplemental to Principal as it acquires secondary meaning under Section 2(f), and it closes with worked examples, a strategy section, and a practical FAQ.

Casey Scott McKayJanuary 21, 202642 min read

Intellectual PropertyTrade and Customs

Section 337 Investigations at the ITC: Exclusion Orders, Domestic Industry, and Speed

The International Trade Commission is the fastest and in some ways the most powerful patent forum in the United States, and it is available only to those who can prove a domestic industry. This article explains what a Section 337 investigation is, how it differs from district court litigation in remedy, pace, and procedure, and why the domestic industry requirement is the gate that decides who may use it. It covers the phases of an investigation from complaint through Commission determination and presidential review, the difference between limited and general exclusion orders, and how Customs actually enforces them at the border. It also addresses the strategic reality that most Section 337 complainants also sue in district court, and how the two proceedings interact.

Casey Scott McKayJanuary 20, 202628 min read

Intellectual PropertyPatent Litigation

Patent Damages Toolkit: Royalty Models, Expert Reports, and Daubert Motions

This toolkit collects the working documents that a damages case actually runs on, from the pre-filing marking audit through the post-trial ongoing royalty briefing. Each template is annotated with its purpose, its owner, and the specific failure it prevents. The materials cover both sides — a marking audit worksheet serves the patentee proving compliance and the defendant attacking it, and the expert report outline doubles as a review protocol for the opposing report. They are structures rather than forms, intended to impose the discipline that keeps damages opinions admissible and damages verdicts affirmable.

Casey Scott McKayJanuary 19, 202612 min read

Intellectual PropertyPatent Litigation

Patent Damages Checklist: A Practical Checklist

Patent damages fails in predictable places, and nearly all of them are avoidable with a checklist run at the right time. This one is organized by phase: the pre-filing audit that fixes the damages period and tests marking compliance, the discovery that must be requested in the right format, the apportionment analysis that will be tested under Rule 702, the expert report review protocol, and the post-trial motions that determine enhancement, fees, interest, and ongoing royalties. Items are written so either side can use them, with notes where the patentee's and the accused infringer's tasks diverge. Each section closes with the failure it exists to prevent.

Casey Scott McKayJanuary 18, 20268 min read

Intellectual PropertyPatent Litigation

Proving and Attacking Patent Damages: A Practical Guide

Patent damages is built, not argued: the number a jury returns depends on data collected months earlier and on methodological choices that cannot be revisited after reports are served. This guide walks through the work in sequence for both sides — the pre-filing valuation, the discovery that must be requested and produced, the selection and management of a damages expert, the apportionment analysis that will be tested under Rule 702, and the deposition and motion practice that decides whether an opinion reaches the jury. It includes a working calendar, a division of labor, a list of the errors that most often produce exclusion, and a framework for valuing the case at each stage so settlement decisions rest on something better than instinct. Worked examples show how a royalty base is narrowed and how an expert survives or fails a Daubert challenge. Written for counsel on either side of the damages case and for in-house lawyers pricing the exposure.

Casey Scott McKayJanuary 17, 202628 min read

Intellectual PropertyTrademark Litigation

Trademark Consumer Survey Design: A Practical Checklist

A consumer survey is a scientific instrument, and in a trademark case it is only as good as its methodology. This checklist guides counsel and survey experts through designing a defensible confusion survey from the first decision to the final report: defining the correct universe for the theory of confusion, choosing the Eveready or Squirt format, drafting neutral screeners and questions, building a proper control to net out noise, administering double-blind under marketplace-realistic conditions, sizing the sample, coding objectively, and building the survey to survive a Daubert challenge under Rule 702. It also maps secondary-meaning, fame, and genericness (Teflon and Thermos) formats. WHY notes and traps accompany each phase. Survey design is fact-specific; consult a qualified survey expert and counsel.

Casey Scott McKayJanuary 16, 20268 min read

Intellectual PropertyPatent Litigation

Patent Damages: Reasonable Royalties, Lost Profits, Apportionment, and Enhancement

A patent is worth what a court will make an infringer pay for using it, which makes damages law the place where patent value is actually determined. This article explains the two paths to recovery under the damages statute — lost profits and reasonable royalty — and the doctrines that discipline each. It covers the Panduit framework for lost profits, the hypothetical negotiation and Georgia-Pacific factors that structure royalty analysis, and the apportionment rules that have reshaped royalty practice over the past fifteen years. It also addresses the limits that cut recovery independent of the merits: the marking requirement, the six-year damages window, and the gatekeeping courts apply to damages experts. It closes with enhancement for willfulness, exceptional-case fees, and the practical question of what a damages case is worth before it is filed.

Casey Scott McKayJanuary 16, 202628 min read

Intellectual PropertyPatent Litigation

Claim Construction Toolkit: Charts, Briefs, Expert Declarations, and Hearing Materials

This toolkit collects the working documents a team actually produces during a claim construction phase, from the first intrinsic evidence index through the stipulated judgment that sets up an appeal. Each template is annotated with what it is for, who should own it, and the mistakes it is designed to prevent. The materials are deliberately generic as to technology so they can be adapted to mechanical, electrical, chemical, and software cases alike. They assume a district with local patent rules but note where practice varies. Use them as starting structures rather than forms; the value is in the discipline they impose, not the words.

Casey Scott McKayJanuary 15, 202612 min read

Intellectual PropertyPatent Litigation

Claim Construction Checklist: A Practical Checklist

Claim construction rewards discipline more than brilliance, and most losses in the phase trace to a step that was skipped rather than an argument that was wrong. This checklist covers the full sequence: assembling the intrinsic evidence file, defining the person of ordinary skill, screening candidate terms for dispositive value, stress-testing every proposed construction against the prior art, preparing declarations and tutorials, and preserving the record for appeal. It is organized by phase so a team can work through it in order and use it as a status document. Each section ends with the specific failures that most often surface at the hearing.

Casey Scott McKayJanuary 14, 20268 min read

Intellectual PropertyPatent Litigation

Preparing for a Markman Hearing: A Practical Guide

A Markman hearing is the closest thing patent litigation has to a decisive battle, and it rewards preparation that begins months before the hearing date. This guide walks through the entire sequence in operational terms: building the intrinsic evidence file, defining the person of ordinary skill, selecting which terms to fight over, drafting constructions that survive contact with a judge, preparing expert declarations that add value rather than noise, building a technology tutorial, and arguing the hearing itself. It includes a working calendar, a division of labor for the team, and a set of mistakes that experienced practitioners see repeatedly. It ends with what to do in the first two weeks after the order issues, when the strategic options are widest and the clock is shortest.

Casey Scott McKayJanuary 13, 202628 min read