Intellectual Property Insights
Analysis and practical guides on intellectual property.
446 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.
Generative AI Authorship Toolkit: Disclosure Statements, Contribution Logs, and Ownership Clauses
This toolkit collects the working documents a creator, business, or lawyer needs to claim copyright honestly in work made with generative AI and to allocate ownership of it by contract. It provides an AI-use intake questionnaire, a contribution log, model disclosure language for the Author Created, Material Excluded, and Note to Copyright Office fields, a response to examiner correspondence, an outline for a request for reconsideration, and a decision memo for correcting older registrations. It also supplies ownership and risk clauses for employee AI-use policies, contractor and agency agreements, publishing contracts, and collaborations, a protocol for protecting prompts and workflows as trade secrets, and litigation templates for auditing a registration under Section 411(b) and taking discovery on the creative process. Each template states its purpose, owner, and timing and is followed by drafting notes tied to the Copyright Act, the Copyright Office's 2023 guidance and 2025 Part 2 report, and the leading cases. The toolkit reflects the law as of January 2026, after the D.C. Circuit's affirmance in Thaler v. Perlmutter.
Preparing an Invention Disclosure: A Practical Checklist
An invention disclosure is the raw material from which a patent application is built, and its quality sets the ceiling on the protection an inventor can ever obtain. This checklist walks an inventor or R&D team, step by step, through gathering exactly what patent counsel needs: a precise problem statement, the mechanism (not just the result), alternative embodiments you did not build, the prior art you know of, the dates and records that anchor conception, and the contributor roles that determine inventorship. It flags the timing bars under 35 U.S.C. § 102 (including Helsinn's secret-sale rule), the duty of candor under 37 C.F.R. § 1.56, and the § 112 written-description and enablement demands that the disclosure must ultimately satisfy. Use it to produce a disclosure that lets counsel claim the full scope of the invention and survive both examination and later challenge.
Inequitable Conduct in Patent Prosecution: Navigating the Atomic Bomb of Patent Law
Inequitable conduct is the defense that can render an entire patent permanently unenforceable when an applicant breaches the duty of candor owed to the U.S. Patent and Trademark Office. This article explains the duty of candor under 37 C.F.R. 1.56, the watershed en banc decision in Therasense v. Becton, Dickinson and its demanding but-for materiality and specific-intent framework, and the narrow egregious-misconduct exception that survives it. It traces the doctrine from the Supreme Court unclean-hands cases through Kingsdown, Regeneron v. Merus, and the danger of infectious unenforceability across patent families. It explains the Information Disclosure Statement as the practical heart of compliance, supplemental examination under 35 U.S.C. 257 as a curative tool, and how Rule 9(b) pleading under Exergen gates these claims in litigation. It closes with a step-by-step compliance program. Throughout, plain-language explanations and worked hypotheticals make the doctrine accessible to inventors, business owners, and lawyers alike.
Copyright Registration of Websites and Website Content
A website is not a single copyrightable "thing" but a bundle of separate works—text, photographs, illustrations, video, sound, and code—each with its own author, owner, and registration path. This guide explains how the U.S. Copyright Office treats websites under Chapter 1000 of the Compendium, why there is no "website" registration class, and how to register the right components the right way. It covers the constant-updating problem and the hard ceilings on group registration, the slippery question of when online content counts as "published," and who actually owns text, images, and user-generated content. It connects registration strategy to real-world enforcement: DMCA Section 512 safe harbors and takedowns, the Copyright Claims Board small-claims route, terms-of-service licenses, and the law of data scraping. The goal is a practical, accurate roadmap that a judge, a lawyer, and a small-business owner can all follow.
Trademark Fair Use Analysis Checklist: A Practical Checklist
This checklist turns trademark fair use doctrine into a sequence of concrete tasks for brand owners, accused users, marketing teams, and litigators. It begins by framing the dispute and capturing every version of the accused use, then puts first the threshold question from Jack Daniel's Properties v. VIP Products: whether the accused party uses the term as a mark for its own goods. Separate parts work through classic descriptive fair use under 15 U.S.C. § 1115(b)(4), nominative fair use under each circuit's test, comparative advertising, expressive works under Rogers v. Grimaldi, parody, and the dilution exclusions in § 1125(c)(3). Later parts cover constitutional arguments, pleading and motion practice, evidence and surveys, pre-launch clearance of advertising and product copy, and the decisions each side makes around a cease-and-desist letter. Each item carries a short note on why it matters and the statute, case, or treatise section behind it, and the checklist closes with common mistakes and a table of key authorities.
Distinctiveness Toolkit: Secondary Meaning Declarations, Genericness Surveys, and Brand Usage Guidelines
This toolkit collects the working documents for proving acquired distinctiveness and for pursuing or resisting a genericness challenge, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing rules and cases. The prosecution and evidence templates include a client evidence request, an exclusivity audit for the five-year statement, a bank of Section 2(f) claim language for each route under 37 C.F.R. § 2.41, an office action response outline, a corporate secondary meaning declaration, and a purchaser declaration kit. The survey templates include an expert engagement letter, specifications for Teflon, Thermos, and secondary meaning surveys, and an audit chart for testing the other side's survey. The brand protection templates include usage guidelines built around a generic descriptor, a usage and cooperation clause for licenses and partner agreements, a policing log, and correction letters to publishers, dictionaries, competitors, and platforms. It closes with the challenger's tools, a genericness evidence chart with targeted discovery requests and an outline for a cancellation counterclaim or petition, followed by common drafting mistakes and related resources.
Design Patents vs. Trade Dress Protection for Product Configurations: A Comprehensive Analysis
Companies that want to protect the way a product looks face a choice between two very different intellectual property regimes: the design patent, a 15-year examined federal right, and trade dress, a use-based and potentially perpetual trademark right. This article compares the two head to head across every axis that matters in practice—subject matter, the functionality bar in each system, term, cost and timeline, the secondary-meaning requirement that burdens product-configuration trade dress, examination versus use-based rights, claiming and scope, infringement standards, remedies including the extraordinary total-profits award of 35 U.S.C. 289, and international protection. It explains how the two regimes interact, why an expired utility patent is "strong evidence" of functionality under TrafFix, and how a well-counseled company can layer both forms of protection over time. A decision framework rendered in prose and a worked hypothetical translate the doctrine into an actionable strategy. The article is written so that a judge, a practicing lawyer, and a non-lawyer business owner can each follow the analysis.
Maintaining Trademark Registrations
A federal trademark registration is not a trophy you win once and hang on the wall; it is a living asset that must be fed, watered, and defended on a schedule set by the Lanham Act. This guide walks through every maintenance milestone the United States Patent and Trademark Office imposes—the Section 8 declaration of continued use between the fifth and sixth years and at every renewal, the Section 9 renewal every ten years, the Section 71 path for Madrid Protocol registrations, and the optional but powerful Section 15 declaration of incontestability. It explains specimens, the USPTO's random proof-of-use audit program, grace periods, the steep 2025 fee increases, and what actually happens when you miss a deadline. Beyond the paperwork, it covers the substantive threats that can destroy a mark no matter how perfectly you file—genericide, abandonment through three years of nonuse, and naked licensing that strips a mark of meaning. It closes with practical docketing and recordkeeping habits, an FAQ, and links to related mclaw.io resources on trademark prosecution, licensing, and enforcement.
Artificial Intelligence Key Legal Issues: An Overview
Artificial intelligence has moved from research labs into contracts, hiring pipelines, courtrooms, and creative studios, and the law is scrambling to keep up. This overview maps the legal terrain a business or its counsel must cross before deploying AI: who owns what a machine creates, how copyright and patent law treat the absence of a human author, where biometric and data-privacy statutes like BIPA draw the lines, how anti-discrimination law reaches algorithmic bias, and how to allocate risk in AI contracts. It also covers the liability puzzle of autonomous systems, the obligations the EU AI Act imposes on anyone touching the European market, and the professional-responsibility rules that punished lawyers who trusted a chatbot's citations. The piece pairs primary authority with plain-English explanation and practical guidance for navigating a fast-moving field.
Filing or Responding to a Trademark Expungement or Reexamination Petition: A Practical Guide
This guide walks petitioners and registrants through a trademark expungement or reexamination proceeding under 15 U.S.C. §§ 1066a and 1066b and 37 C.F.R. §§ 2.91 to 2.94, step by step and in the order things actually happen. For petitioners, it covers computing the filing windows, choosing between expungement, reexamination, and a TTAB cancellation, planning and documenting a reasonable investigation, assembling the evidence index and verified statement, and filing through TEAS. For registrants, it covers reading the institution notice, calendaring the three-month deadline, gathering evidence of use that satisfies the statute rather than the specimen rules, deciding what to defend and what to delete, claiming excusable nonuse where available, and preserving the record for appeal. It explains the decisions that shape practice, including In re Locus Link and Common Sense Press v. Van Sciver, along with timelines, fees, special situations, and the rules on reconsideration, TTAB appeals, and Federal Circuit review. A worked example follows a coffee roaster that receives a reexamination notice for services it launched after its statement-of-use deadline, and the guide closes with common mistakes, an FAQ, and practical takeaways.
Open Source Compliance Checklists: The Complete Collection
Ready-to-use checklists for every stage of an open source compliance program, from pre-audit scoping to incident response. Open source compliance fails not because the law is mysterious but because nobody runs the checklist. Hundreds of components, dozens of license families, and a codebase that changes hourly turn a tractable legal obligation into an overwhelming one—until you break it into discrete, checkable steps. This collection is the operational backbone of an open source compliance program: ready-to-use checklists for every stage, from pre-audit scoping and component discovery through license classification, copyleft exposure analysis, gap assessment, remediation, ongoing program maintenance, M&A due diligence, SBOM generation, and incident response. Each checklist carries enough legal context—anchored in real cases like Jacobsen v. Katzer and SFC v. Vizio, and in concrete obligations under the MIT, BSD, Apache, GPL, LGPL, AGPL, and MPL licenses—to make clear why the step matters and what happens if you skip it. It is the operational companion to our narrative guide on open source licensing landmines, and the definitive working reference for engineers, in-house counsel, and deal teams who would rather check a box than receive a demand letter.
Trademark Function Toolkit: Specimen Audits, Secondary Source Evidence, and Office Action Response Outlines
This toolkit collects the working papers for responding to USPTO failure-to-function and ornamental refusals, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing statute, rules, and cases. The intake templates are a refusal triage memo, a specimen audit worksheet, a client fact and document request, and a chart for classifying the examining attorney's third-party evidence. The evidence templates are a substitute specimen and basis amendment package, a secondary-source declaration, and a bank of alternative-claim language for Section 2(f) and the Supplemental Register. Four office action response outlines address ornamental, informational, widely used message, and hashtag refusals, and a further template covers the request for reconsideration and notice of appeal. A client-facing merchandise labeling guide, a letter-of-protest and opposition evidence outline for third parties, and a deadline tracker complete the set, all illustrated by one running example.