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 PropertyCopyright

Renewal of Copyright

For most of the twentieth century, U.S. copyright ran on a two-term system: a first term of protection followed by a renewal term that an owner had to affirmatively claim, and the vast majority of works fell into the public domain when nobody filed in time. This guide untangles the renewal regime created by the 1909 Copyright Act, the wholesale changes made by the 1976 Act, the 1992 amendment that made renewal automatic for 1964–1977 works, and the term extensions of 1976 and 1998 (the Sonny Bono Copyright Term Extension Act). It explains the renewal-expectancy cases that still control who owns these copyrights — Fred Fisher Music, Miller Music, De Sylva v. Ballentine, and Stewart v. Abend — and the Supreme Court's blessing of term extension and foreign restoration in Eldred v. Ashcroft and Golan v. Holder. It walks through who can claim a renewal copyright, how to file Form RE today, and how renewal differs from the separate right to terminate transfers. Finally, it gives a practical, step-by-step method for answering the question everyone actually wants answered in 2026: is this old work in the public domain? The short headline: everything published in the United States before 1929 is now free for anyone to use.

Casey Scott McKayMarch 1, 202450 min read

Intellectual PropertyTrademark

How to Conduct a Comprehensive Trademark Clearance Search

A comprehensive, practitioner-grade guide to trademark clearance—the discipline of confirming a proposed mark is available for use and registration before a brand is built on it. The article moves from the quick knockout search through the full search of state registrations, common-law uses, domains, and social handles, then through likelihood-of-confusion analysis under the DuPont, Sleekcraft, and Polaroid factors, clearing across the 45 international classes, risk categorization, and the proceed/modify/abandon decision. It explains how a documented clearance opinion from counsel functions as a shield against willful-infringement findings, how to address conflicts through consent and coexistence agreements, and how foreign clearance and the Madrid Protocol fit into an expansion strategy. It reflects the USPTO's retirement of TESS in favor of the cloud-based Trademark Search tool and is written for founders, in-house counsel, and trademark practitioners.

Casey Scott McKayFebruary 2, 202445 min read

Intellectual PropertyCopyright

Registering a Copyright in a Website: A Practical Checklist

A website is not a single copyrightable thing but a bundle of separate works, text, images, video, sound, and code, each with its own author, owner, and registration path. This checklist explains how to register the right components the right way: auditing ownership, classifying content as published or unpublished, registering crown-jewel content individually, batching the rest through the group options (GRTX, GRUW, group photographs), registering the software separately, and capturing the site arrangement as a compilation or collective work where you fully own everything. It covers the constant-updating problem and the derivative-version rule, deposit format, and the timing that drives statutory damages. Verify current group caps and fees at copyright.gov before filing.

Casey Scott McKayFebruary 1, 20246 min read

Intellectual PropertyTrademark Litigation

Daubert Challenges to Consumer Survey Experts in Trademark Litigation: A Practical Guide

Consumer surveys are among the most powerful--and most attacked--forms of evidence in trademark litigation, and the motion that decides their fate is the Daubert challenge. This guide explains, in plain language for both lawyers and business owners, how the gatekeeping framework of Daubert, Joiner, Kumho Tire, and Federal Rule of Evidence 702 (as amended in 2023) governs the admissibility of survey, damages, and technical experts. It covers what a valid trademark survey requires, the recurring battle over whether methodological flaws go to weight or admissibility, the most common grounds for excluding or discounting survey testimony, the difference between the Eveready and Squirt survey formats, how courts in the Second Circuit and the Eastern District of New York actually treat these challenges, whether a damages expert can be excluded for failing to apportion, and how Kumho extends the analysis to non-scientific experts. It closes with two worked hypotheticals, a litigation checklist, and an FAQ for both the challenger and the proponent.

Casey Scott McKayJanuary 29, 202441 min read

Intellectual PropertyPatent

General Information Concerning Patents

This is the broad, plain-English overview of the U.S. patent system — what a patent is, the constitutional bargain behind it, and how it differs from copyrights and trademarks. It walks through the three kinds of patents (utility, design, and plant), the four statutory gates every invention must pass (eligibility and usefulness under 35 U.S.C. 101, novelty under 102, non-obviousness under 103, and adequate disclosure under 112), and what can and cannot be patented after Alice and Mayo. It maps the journey of an application from invention disclosure through provisional and nonprovisional filing, examination, allowance, issuance, maintenance fees, and international protection via the Patent Cooperation Treaty. It explains the AIA's first-inventor-to-file rule, patent term and term adjustment, and the post-grant procedures (inter partes and post-grant review) that let the public challenge issued patents. Finally, it explains the rights a patent actually grants, how marking and "patent pending" work, and the basics of enforcement. Think of it as the trailhead: a single map of the whole territory, with links to deeper guides on each leg of the trip.

Casey Scott McKayJanuary 28, 202457 min read

Intellectual PropertyCopyright

Copyright Registration of Games

Games occupy one of the strangest crossroads in intellectual property law: the single most valuable thing about a game—its rules, its mechanics, the clever way it makes players think—is the one thing copyright flatly refuses to protect. This guide explains the classic and unyielding rule that game ideas, systems, and methods of play are not copyrightable, traces it from Baker v. Selden through Section 102(b), and walks through what copyright actually does protect: the artwork, the text, the audiovisual displays, the code, and the particular expression an author pours into a game. It covers how to register the many separate components of a board game or video game with the U.S. Copyright Office, including the deposit and identifying-material rules that trip up tabletop publishers, the choice among application types, and the litigation tools—substantial similarity, the abstraction-filtration-comparison test, scènes à faire—that decide cloning disputes. Anchored by the leading "look and feel" decisions in Tetris Holding, LLC v. Xio Interactive, Inc. and Atari v. North American Philips, the guide uses vivid examples from Pac-Man to Tetris to Monopoly to make a notoriously slippery area of law concrete. It explains why developers must reach for trademark, patent, and trade dress to fill the gaps copyright leaves wide open. It is written for game designers, developers, founders, and the lawyers who advise them.

Casey Scott McKayJanuary 26, 202451 min read

Intellectual PropertyTrademark

Federal Trademark Application Checklists: From Preparation to Registration

A definitive, authority-rich checklist collection covering every phase of federal trademark registration—pre-filing clearance and distinctiveness assessment, filing-basis selection (Sections 1(a), 1(b), 44, and 66), goods-and-services identification and Nice classification, specimen preparation, application filing through the USPTO Trademark Center, office-action response, publication and opposition, intent-to-use prosecution, and post-registration maintenance under Sections 8, 9, and 15. It reflects the USPTO's January 18, 2025 fee overhaul (one base application plus surcharges, filed through Trademark Center; cloud-based Trademark Search replacing TESS) and the Trademark Modernization Act of 2020 (expungement and reexamination, flexible three-month response periods). Each checklist is paired with the legal reasoning and primary authority behind it, with worked examples that follow a hypothetical brand from idea to incontestability. Fees change—verify current amounts at USPTO.gov before filing.

Casey Scott McKayJanuary 18, 202450 min read

Intellectual PropertyPatent

Patent Subject-Matter Eligibility After Alice: A Practical Checklist

More than a decade after Alice Corp. v. CLS Bank, software and business-method patents still face a brutal invalidity rate under 35 U.S.C. § 101—yet meaningful protection remains achievable for those who understand the rules. This checklist walks a drafter or prosecutor through the Alice/Mayo two-step framework as the USPTO applies it (Step 2A Prong One and Prong Two, then Step 2B), through the Federal Circuit guideposts that mark the narrow path to eligibility (Enfish, DDR Holdings, McRO, BASCOM, Finjan), and through the recurring patterns of ineligibility to avoid (the collect/analyze/display trap, the specification-claim disconnect, "do it on a computer"). It translates each into concrete claim-drafting, specification, and prosecution moves, including the Berkheimer factual showing and the 2024 AI guidance examples, and it flags the unsettled state of § 101 reform (PERA). The goal is to draft and prosecute claims that live on the right side of the line.

Casey Scott McKayJanuary 17, 20248 min read

Intellectual PropertyTrademark

Trademark Licensing and Quality Control: How Naked Licensing Kills a Brand

A trademark license is not like a patent or copyright license. Because a trademark exists to tell consumers who stands behind a product, a licensor who lets someone else use the mark without controlling the quality of what the mark appears on is not just being careless. It may be forfeiting the mark entirely, a doctrine courts call naked licensing. This article explains why quality control is a legal requirement rather than a business preference, what the leading cases in the Ninth, Seventh, and Second Circuits actually demand, and how much control is enough, including the reasonable-reliance line of authority that saves some licensors who never inspected anything. It then works through the anatomy of a trademark license clause by clause: grant and scope, quality standards and approval mechanics, audit rights, marking, goodwill and assignment, sublicensing, term and termination, post-termination sell-off, and what happens in bankruptcy after Mission Product v. Tempnology. A long section covers the accidental franchise problem under the FTC Franchise Rule and state franchise statutes, which turns many ordinary licenses into regulated offerings without anyone noticing. It closes with drafting checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayJanuary 15, 202426 min read

Intellectual PropertyPatent

Patent Basics: A Plain-English Guide

A warm, beginner-friendly introduction to patents for inventors, founders, and the merely curious--but with real legal teeth. It explains what a patent actually is (a bargain: you disclose your invention to the public, and in exchange you get a time-limited right to exclude others) and walks through the four statutes that govern patentability--35 U.S.C. 101, 102, 103, and 112. It covers the three types of patents, the claims that form the heart of every patent, the term of protection, and the first-inventor-to-file system created by the America Invents Act. It explains step by step how you actually get a patent, what it costs, and how long it takes, and it explains what happens after a patent issues, including how third parties can challenge it. It debunks the two most persistent and dangerous myths in this field--the "poor man's patent" and the idea that "patent pending" gives you enforceable rights--and closes with guidance on hiring a registered patent attorney, an FAQ, and links to deeper resources.

Casey Scott McKayJanuary 15, 202453 min read

Intellectual PropertyTrademark

Federal Registration and Constructive Use Under 15 U.S.C. § 1057(c): A Practical Guide

The single most valuable date in a trademark owner's life is often its application filing date, and the reason is a doctrine called constructive use. Under 15 U.S.C. § 1057(c), filing a federal application that later matures into a registration is treated as use of the mark everywhere in the country as of the filing date—conferring a nationwide right of priority against almost everyone who comes later. This guide explains, in plain language for lawyers and business owners alike, exactly what constructive use does and does not accomplish. It distinguishes constructive use from the older concept of constructive notice, explains why the priority is "contingent" on registration and relates back to the filing date, walks through the crucial "except for" carve-outs that protect prior users, prior applicants, and foreign-priority claimants, and analyzes how the doctrine interacts with the Tea Rose-Rectanus common-law framework. It covers Zirco, WarnerVision, Allard, and Sengoku, the burden of proof, the Madrid Protocol's earlier-still constructive-use date, and closes with worked examples, a litigator's playbook, and an FAQ.

Casey Scott McKayJanuary 10, 202438 min read

Intellectual PropertyTrademark

Trademark Clearance Search Checklist: A Practical Checklist

A step-by-step clearance checklist that takes a proposed mark from a short list of candidates through a knockout pass, a full search across federal, state, common-law, domain, and social sources, a likelihood-of-confusion analysis, risk triage, documentation, and the proceed/modify/abandon decision. It reflects the USPTO's retirement of TESS in favor of the cloud-based Trademark Search tool. It explains why each step matters, the traps that breed false confidence, and how a documented clearance file builds the good-faith record that blunts a later willful-infringement charge. Use it alongside our full clearance article and the application checklists. Educational, not legal advice; for a high-stakes launch, obtain a clearance opinion from qualified counsel.

Casey Scott McKayJanuary 1, 202410 min read