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

Copyright Termination Notice Checklist: A Practical Checklist

A working checklist for copyright termination from both sides. It opens with document reconstruction and the copyright facts, then the two threshold questions — work made for hire and whether the author executed the grant — followed by the window computation under each regime. Later sections cover building the family tree and confirming a majority interest, drafting the notice to the content requirements, service and the recordation condition, modeling what actually reverts, and the negotiation the regrant window creates. Separate sections give the grantee a defensive checklist and a catalog exposure audit, and address what to do when a window has closed. Every item is written so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202611 min read

Intellectual PropertyCopyright

Copyright Termination and Reversion: Sections 203 and 304 and Taking Back a Grant

Congress gave authors an inalienable right to take back copyright grants after decades, and then buried it under a set of deadlines and exceptions that defeat most attempts to exercise it. This article explains how termination works: the two regimes of Sections 203 and 304, how to compute the windows, who owns the right when the author has died, what the notice must contain, and why recordation is a condition of effectiveness. It covers the work-made-for-hire exclusion that ends most claims before they start, the derivative works exception that lets a terminated licensee keep exploiting what it already made, and what Mills Music and Stewart v. Abend actually decided. It closes with what each side should do and when.

Casey Scott McKaySeptember 5, 202629 min read

Intellectual PropertyTechnology Transactions

Co-Development Toolkit: Background IP Schedules, Ownership Allocations, and License Grants

This toolkit provides the operative provisions of a joint development agreement in drafting-ready form, annotated with the consequence each carries. It supplies a background IP schedule, a field-of-use definition with the exclusions that prevent later argument, and three alternative ownership allocation clauses. It provides the exploitation licence that determines whether either party can practise the result, a full co-ownership agreement for parties who genuinely want one, and an invention disclosure form built to establish inventorship years later. A joint IP committee charter, an expert determination clause for characterization disputes, present-assignment language for employees and secondees, and a survival and change-of-control provision complete the set.

Casey Scott McKaySeptember 5, 202619 min read

Intellectual PropertyPatents

Building and Managing a Global Patent Portfolio: A Practical Guide

This guide walks through building and running a patent portfolio that spans several countries, from inventory to pruning, in the order the work actually happens. It starts with the asset register almost nobody has, moves to the jurisdiction strategy that should govern every later decision, and then covers invention capture, filing policy and decision gates, the priority year, the PCT phase, and national phase entry. Later steps address managing foreign associates, budgeting annuities that arrive years after anyone remembers approving them, running an annual portfolio review with real pruning authority, and using the portfolio for licensing, diligence, and enforcement. A final step covers integrating an acquired portfolio and surviving a firm transition, which is where most established portfolios lose cases. Each step names who does the work, what it costs, and the specific failure it prevents.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyTrademarks

Brand Licensing Toolkit: License Terms, Quality Programs, and Audit Rights

This toolkit supplies the working documents of a brand licensing program, from the term sheet to the termination notice. It includes an annotated term sheet, model quality control and approval clauses with the drafting reasoning behind each, a product specification schedule outline, a submission and approval form, and a royalty report template designed so the numbers can actually be checked. It also provides an audit demand letter, a licensee scorecard, a franchise law screening memo, a notice of non-conformity and a termination and sell-off notice, a control file index, and a rider for international licenses. Each item is annotated with the failure it prevents, because most licensing failures are operational rather than legal. Adapt the language; keep the architecture.

Casey Scott McKaySeptember 5, 202618 min read

Intellectual PropertyPatents

BPCIA Patent Exchange Checklist: A Practical Checklist

A working checklist for the BPCIA information exchange and the litigation that follows, organized by the statutory day counts. It covers the applicant's pre-filing estate mapping, process design-around, and exclusivity computation, then the dance decision and each step of the exchange with its deadline and its consequence. Later sections address the immediate action, the 180-day notice, the preliminary injunction that replaces the automatic stay, the confidentiality regime and its gaps, the interchangeability decision, at-risk launch analysis, and settlement structuring. A closing section covers the parallel regulatory, PTAB, manufacturing, and commercial tracks. Every item is written so that a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 20269 min read

Intellectual PropertyPatents

Biosimilar Litigation Toolkit: Disclosure Lists and Preliminary Injunction Briefing

Working templates for BPCIA practice on both sides. It includes a patent estate mapping worksheet, a process design-around record, a dance decision memorandum, a manufacturing process disclosure scope guide, a supplemental confidentiality agreement, a sponsor patent list format, detailed statement outlines for both sides, a list exchange worksheet, a 180-day notice, preliminary injunction and opposition outlines with an irreparable harm evidence plan, an at-risk launch memorandum, a settlement term sheet, and a day-count calendar. Each carries drafting notes on what the document does, what the other side will do with it, and where each side most often fails. A closing day-count calendar ties the statutory deadlines to the parallel regulatory, PTAB, and commercial tracks. Adapt every template to the product, the patent estate, and the regulatory posture.

Casey Scott McKaySeptember 5, 202618 min read

Intellectual PropertyPatents

Biologics and the BPCIA: The Patent Dance, Biosimilar Approval, and Exclusivity

Congress gave biologics their own version of Hatch-Waxman and made almost every part of it different. This article explains the Biologics Price Competition and Innovation Act: the abbreviated 351(k) pathway, the twelve-year reference product exclusivity, the interchangeability designation, and the elaborate private information exchange known as the patent dance. It covers what the Supreme Court held in Sandoz v. Amgen about whether the dance is enforceable and when the 180-day notice of commercial marketing may be given, why biosimilar makers face patent thickets rather than a short Orange Book list, and how preliminary injunction practice replaced the automatic stay. It closes with the strategic decisions each side makes and why so few of these cases reach judgment.

Casey Scott McKaySeptember 5, 202629 min read

Intellectual PropertyTrademark Litigation

Damages Apportionment in Trademark Cases: A Practical Guide

When a defendant infringes a trademark on one product but runs a much larger business, how much can the plaintiff actually recover? The answer lies in the doctrine of apportionment, which limits recovery to the profits and damages actually attributable to the infringement rather than the defendant's entire revenue. This guide explains, in plain language for lawyers and business owners alike, how apportionment works under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a). It maps the unusual burden-shifting structure—where the plaintiff proves the defendant's infringement-related sales, the defendant proves its costs and the share of profit not caused by the infringing mark, and sales are treated as profit until the defendant proves otherwise. It covers the two layers of apportionment, the proximate-cause requirement, the Supreme Court's 2025 narrowing of recoverable profits to the named defendant in Dewberry, the equitable factors the Second Circuit weighs, the role of willfulness after Romag, the alternative measures of actual damages (lost profits, reasonable royalty, and corrective advertising), and when courts exclude damages testimony as speculative. It closes with a worked example and practical takeaways for both sides.

Casey Scott McKayAugust 17, 202640 min read

Intellectual PropertyCopyright

Copyright Registration of Books, Manuscripts, and Speeches

Books, manuscripts, and speeches are "literary works" under U.S. copyright law, and registering them with the U.S. Copyright Office unlocks the right to sue, statutory damages, attorney's fees, and a public record of ownership. This guide explains how registration works for written and spoken expression, including the all-important fixation requirement that decides whether an extemporaneous speech is protected at all. It walks through published versus unpublished status, the deposit and best-edition rules, single versus standard versus group registration (including the GRTX option for short online literary works), preregistration for at-risk manuscripts, and the special wrinkles of ghostwriting, pen names, and anonymous authorship. A running worked example follows a debut novelist from first draft to certificate. The article closes with an FAQ, key takeaways, and a reminder that an ISBN is not a copyright.

Casey Scott McKayAugust 17, 202654 min read

Intellectual PropertyTrademark Litigation

Filing a TTAB Notice of Opposition: A Practical Checklist

An opposition is a challenge to a pending trademark application before it registers, filed with the Trademark Trial and Appeal Board within thirty days of publication in the Official Gazette. This checklist walks an opposer and its counsel through monitoring publication, securing extensions of time, confirming entitlement to a statutory cause of action, selecting and pleading the grounds, filing through ESTTA, and preparing for the institution order, the mandatory discovery conference, and the proceeding that follows. It explains the Board's narrow jurisdiction over registrability, the 15 U.S.C. Section 1063 deadline structure, and the strategic stakes of a Board proceeding after B&B Hardware. WHY notes and traps accompany each phase. Verify current TBMP guidance, 37 C.F.R. Part 2 rules, and fees before filing.

Casey Scott McKayAugust 15, 20267 min read

Intellectual PropertyTrademark

Trademark Overview: Infringement and Related Rights Under Trademark Law

This is Part 4 of a four-part overview of United States trademark law, covering what happens when a mark is misused and how owners enforce their rights. It explains the core test for infringement--likelihood of confusion--and the multifactor analyses the federal circuits apply, then walks through the related federal causes of action: dilution of famous marks under the TDRA, cybersquatting under the ACPA, false designation of origin and false advertising under Section 43(a), counterfeiting, gray-market imports, and contributory liability. It maps the major defenses, including descriptive and nominative fair use, the expressive-use limits the Supreme Court reset in Jack Daniel's Properties v. VIP Products (2023), and equitable defenses such as laches. It closes with the full remedial toolkit--injunctions, profits, damages, enhanced and statutory awards, attorney's fees, seizure, and customs recordation--plus a practical enforcement framework and FAQ. Read it alongside Parts 1 through 3 of the series on subject matter, substantive standards, and obtaining and licensing rights.

Casey Scott McKayAugust 14, 202646 min read