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.
What Constitutes Patent Infringement: Claims and Defenses: A Practical Guide
A patent infringement claim is a federal lawsuit asserting that another party is practicing a patented invention without authority. This guide explains, in plain language for accused businesses, patent owners, and the lawyers who advise them, what actually constitutes patent infringement and how infringement claims and defenses work in U.S. federal court. It begins where every infringement analysis begins—the patent's claims and the all-elements rule—and then explains the types of infringement (direct under 35 U.S.C. 271(a); induced and contributory under 271(b)-(c); divided infringement after Akamai; and the special categories in 271(e), (f), and (g)), the pivotal role of claim construction under Markman and Phillips, and literal infringement and the doctrine of equivalents under Warner-Jenkinson and Festo. It surveys the full bench of defenses—non-infringement, invalidity (Sections 102, 103, 112, and 101), inequitable conduct, license and exhaustion, and equitable estoppel—and the remedies, from a Georgia-Pacific reasonable royalty and Panduit lost profits to enhanced damages for willfulness under Halo, attorney's fees under Octane, and injunctions under eBay. A running hypothetical—an encryption-key startup that receives a cease-and-desist letter—anchors the analysis, and the guide closes with an FAQ, a reference table of leading authorities, and practical takeaways.
Responding to an Image Copyright Infringement Demand: A Practical Guide
This guide takes the recipient of an image copyright demand, from a single automated email to a lawyer's letter with a draft complaint, through each step of a response. It begins with the decisions to make before writing anything, including which document actually arrived, what deadline it carries, and whether insurance or a vendor indemnity applies. The numbered steps cover preserving evidence and deciding whether to remove the image, verifying the claimant's ownership and standing, checking the registration date against the date of first use under Section 412, searching license records, testing the defenses, assessing any copyright management information claim, calculating exposure, and choosing between a request for proof, a no-liability response, and a counteroffer. Later steps address negotiation, the 60-day Copyright Claims Board opt-out decision, early litigation moves such as a Rule 68 offer, and the terms a settlement and release must contain. A short section addresses rights holders who send demands, and a timeline and cost table, an extended worked example involving a physical therapy clinic, common mistakes, an FAQ, and takeaways close the guide.
AI Confidentiality Toolkit: Acceptable Use Policies, Vendor Term Reviews, and Incident Playbooks
This toolkit supplies ready-to-adapt templates for protecting trade secrets and other confidential information when employees and contractors use generative AI tools. It includes an AI acceptable use policy, a data classification matrix that maps information tiers to approved tools, an approved-tools register, a vendor term review worksheet, confidentiality clauses for employee, contractor, and counterparty agreements, a prompt-leakage incident playbook with an incident report form, onboarding and annual employee certifications, an exit interview script, a legal hold addendum for AI logs, and a protective order provision on AI tool use. Each template states its purpose, owner, and timing and is followed by drafting commentary tied to the Defend Trade Secrets Act, the reasonable-measures case law, the NLRA, and the rules of civil procedure. A running example follows a flavor formulation company through each form. Bracketed placeholders mark every choice the drafter must make.
Trade Secrets and Generative AI: Reasonable Measures, Prompt Leakage, and Vendor Terms
This article explains how generative AI tools change the three questions every trade secret case turns on: whether information is still secret, whether its owner took reasonable measures to keep it that way, and whether someone acquired it by improper means. It traces the doctrine from Kewanee Oil and Ruckelshaus v. Monsanto through the Defend Trade Secrets Act and the reasonable-measures cases, including Rockwell Graphic Systems, Learning Curve Toys, and Yellowfin Yachts, and applies it to employees pasting confidential material into chatbots. It reads AI vendor terms closely, comparing consumer, business, API, and zero-retention tiers on training use, retention, human review, and subprocessors. It maps the newer leakage paths, including prompt leakage, retrieval systems that ignore permissions, agentic connectors, and prompt injection, and the use of AI to extract or reverse engineer a competitor's information. It also covers prompts, system prompts, outputs, and model weights as trade secrets, the labor-law and privilege overlays, an extended worked example, common mistakes, and an FAQ.
Privacy Notice Toolkit: Policy Templates, Consent Flows, and Change Management Records
This toolkit collects the working documents behind a truthful privacy program: model policy language, notices, consent flows, and the records that prove later what users were told and what they agreed to. It begins with an annotated master policy skeleton, a summary layer, and a category disclosure matrix, then supplies a notice at collection, just-in-time and permission-prompt copy, cookie banner and preference-center language with a consent-state matrix, and an opt-out page that explains how Global Privacy Control is honored. Separate templates cover consumer health data and biometric consents, text-message marketing consent, and a California notice of financial incentive for a loyalty program. The change-management set includes a prospective change notice, a retroactive consent request with a data segregation record, a materiality assessment form, a version log and archive manifest, a consent record schema, and an accuracy audit worksheet. The litigation and diligence set adds a custodian declaration for prior policy versions and consent logs and an inconsistency chart that plaintiffs, regulators, defendants, and acquirers can all use. Each template states its purpose, owner, and timing and is followed by drafting commentary tied to the governing authority.
Biometric Privacy Litigation: BIPA, Rosenbach, Cothron, the 2024 Amendment, and the Laws Following Illinois
This article explains how a 2008 Illinois statute written for finger-scan payment kiosks became the most consequential privacy litigation engine in the United States, and what the law looks like after the 2024 amendment. It walks through the Biometric Information Privacy Act section by section, then tells the stories of the cases that shaped it: Rosenbach on standing to sue without actual harm, Bryant, Fox, and Thornley on federal jurisdiction, Patel and the $650 million Facebook settlement, Tims on the five-year limitations period, Cothron on per-scan accrual, and the BNSF jury verdict that was vacated. It covers the defenses that work (labor preemption, the health care and financial institution exemptions, extraterritoriality) and those that failed (workers' compensation exclusivity), along with the insurance coverage cases. It then maps the laws that followed Illinois, from Texas and Washington to California, Colorado, New York City, Portland, and the Federal Trade Commission. A worked example, common mistakes, an FAQ, and takeaways for companies, plaintiffs, and insurers close the article.
TTAB Discovery: A Practical Checklist
Discovery is the engine of every contested opposition or cancellation before the Trademark Trial and Appeal Board, but it runs on its own rules—an administrative timetable, hard numerical caps, mandatory cooperation, and a paper trial in which the discovery you obtain becomes much of the evidence. This checklist walks counsel and self-represented parties through the discovery conference and initial disclosures, the 180-day discovery period, sequencing interrogatories, requests for production, and requests for admission within the uniform 75-request caps, expert disclosure, the standard protective order, motions to compel, and building the DuPont likelihood-of-confusion record. WHY notes and traps accompany each phase. Stated as amended through the 2017 rules; verify current 37 C.F.R. Part 2 and TBMP guidance before relying on any limit or deadline.
Register Clearing Toolkit: Nonuse Investigations, Petition Templates, and Post-Registration Audit Responses
This toolkit collects the working documents for clearing unused registrations from the federal trademark register and for defending a registration when someone tries. For petitioners, it provides a registration fact sheet and window calculator, a tool-selection memo, an investigation plan, a contemporaneous search log, a web-capture protocol, a test-purchase record, a specimen comparison sheet, an evidence index, a verified-statement skeleton, a filing sheet, suspension language, and an optional pre-petition letter, all built around 15 U.S.C. §§ 1066a and 1066b and 37 C.F.R. § 2.91. For registrants, it provides an institution intake and triage matrix, a declaration of use, a response cover statement with deletion language, an excusable-nonuse declaration, and a kit for answering a post-registration audit under 37 C.F.R. § 2.161(b). Each template states its purpose, its owner, and when to use it, and is followed by drafting notes citing the governing statutes, rules, manual sections, and decisions. A pre-filing Section 8 verification worksheet and a letter-of-protest evidence index round out the set for owners and challengers who would rather solve the problem before it becomes a proceeding.
Fair Use After Warhol: A Practical Guide to the Four Factors in the Age of AI
Fair use is the most important and least predictable doctrine in American copyright law, and the Supreme Court's 2023 decision in Andy Warhol Foundation v. Goldsmith changed how the first factor works without changing a word of the statute. This guide explains the four statutory factors of 17 U.S.C. section 107 one at a time, in plain English, and shows how Warhol narrowed "transformative use" by refocusing courts on the specific use challenged rather than the new work as a whole. It traces the doctrine from Justice Story's 1841 opinion in Folsom v. Marsh through Campbell, Harper and Row, Sony, Google v. Oracle, and the appropriation-art cases, then applies the framework to software, search, news, education, and parody. A long section addresses the question every technology company is now asking: whether training a generative AI model on copyrighted works is fair use, and what the 2025 district court decisions in Bartz v. Anthropic, Kadrey v. Meta, and Thomson Reuters v. Ross actually held. The guide closes with a step-by-step method for running a fair use analysis before you copy, a worked example, litigation-posture advice on burdens and summary judgment, an FAQ, and related reading.
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.
Privacy Policies, Notices, and Consent: Drafting Disclosures That Are True and Survive the FTC
A privacy policy is a set of factual representations about what a business does with personal information, and the FTC, state attorneys general, and class action plaintiffs read it that way. This article explains the legal sources of the obligation to have one and to tell the truth in it: Section 5 of the FTC Act and the Deception and Unfairness Policy Statements, the enforcement record from Gateway Learning and Google Buzz through GoodRx, BetterHelp, Avast, and the location-data cases, CalOPPA and the CCPA/CPRA notice regulations, the other state comprehensive laws, and the sector rules under COPPA, GLBA, HIPAA, FERPA, the FCRA, the TCPA, CAN-SPAM, and the VPPA. It then covers GDPR transparency for US companies, app store privacy labels, BIPA, and wiretap consent for session replay. It explains how courts treat a policy as a contract, as the measure of consent, and as the source of privacy expectations, including the circuit differences on standing. The drafting half covers the standard architecture, layered and just-in-time notices, consent flows and the dark-pattern rules, accuracy audits, the retroactive-change rule, version control, and how policies are proved in litigation. It closes with strategy for the company, the plaintiff, and the acquirer, three worked examples, an FAQ, and practical takeaways.
Copyright Preemption Analysis Checklist: A Practical Checklist
This checklist turns copyright preemption under 17 U.S.C. § 301 into a phased review that a lawyer can run against any complaint or draft complaint. It begins by collecting the work, the relationship, and the forum, then tests the subject matter and equivalence prongs. A claim-by-claim phase covers contract, idea submission, hot news, misappropriation, enrichment, conversion, computer crime statutes, trade secrets, fiduciary duty, interference, publicity, and scraping. Later phases cover complete preemption, removal, remand, post-removal amendments, and the limitations, registration, and fee consequences of a preemption ruling. Each task names its authority and flags the traps most likely to change the result.