Legal insights
Analysis from the front lines of IP & technology law.
Our attorneys write about the developments shaping intellectual property—from the PTAB and the Federal Circuit to the practical realities of protecting fast-moving technology.
Answering a Federal Complaint: Denials, Affirmative Defenses, Counterclaims, and Judgment on the Pleadings
The answer is the defendant's first pleading, and the admissions, denials, and defenses in it shape discovery, summary judgment, and trial. This article explains how a federal answer works: the response deadlines under Rules 12(a) and 81(c), the three responses Rule 8(b) permits, the line between a denial and an affirmative defense, and the waiver rules of Rules 8(c) and 12(h) that make omissions expensive. It analyzes the circuit split over whether Twombly and Iqbal govern affirmative defenses, how courts treat boilerplate defenses and Rule 12(f) motions to strike, and the defenses intellectual property defendants most often forfeit. It then covers counterclaims, including the compulsory counterclaim bar, supplemental jurisdiction, and declaratory judgment and trademark cancellation counterclaims, and explains when either side can win on the pleadings under Rule 12(c). It closes with strategy for both sides, two worked examples, an FAQ, and practical takeaways.
Jury Trial Toolkit: Voir Dire, Openings, Exhibits, and Instructions
A jury trial is a sequence of decisions made under time pressure, each of which either preserves an issue or waives it. This toolkit organizes the sequence: the pretrial order and in limine motions that determine what the jury will hear, the selection process that determines who hears it, the evidentiary foundations that get exhibits admitted, the objections and offers of proof that preserve error, the Rule 50 motions that must be made at specific moments to survive, the instructions and verdict form that frame deliberation, and the post-trial motions with their own short and jurisdictional deadlines. It is written for the lawyer preparing a case that will actually be tried. It ends with the verdict form, the instruction conference, and the post-trial motions where preserved issues either mature into relief or quietly expire.
Hiring and Onboarding Compliance Toolkit
Hiring is the densest compliance sequence in employment law, and nearly every step is governed by a rule that differs by state and by city. This toolkit runs the sequence in order—the posting and its pay range, the application and the questions that may not be asked, the interview and the automated tools that screen it, the conditional offer that triggers the background check, the FCRA and fair chance process, verification and payroll setup, and the documents signed on day one that determine whether inventions are assigned and disputes are arbitrated. It closes with the multistate architecture that lets a single process work everywhere, and the records that make each step defensible. It closes with the onboarding paperwork and the restrictive covenant questions that should be settled before the first day rather than after it.
Tortious Interference and Unfair Competition Claims Between Businesses
When a competitor hires away a sales team, a supplier stops shipping after a rival calls, or a customer walks away mid-contract, the claim businesses reach for is tortious interference. It is also the claim they most often lose, because competition is privileged and the line between aggressive selling and improper interference is drawn by a doctrine that varies by state. This article explains both interference torts element by element, the competition privilege and the independently wrongful conduct requirement that most states impose for prospective relations, and the justification defenses. It then covers the adjacent claims that usually travel with it: common law unfair competition, breach of fiduciary duty and aiding and abetting, civil conspiracy, and unjust enrichment, along with the preemption and economic loss doctrines that eliminate several of them. Later sections address proof and damages, injunctive relief, defenses including Noerr-Pennington and the litigation privilege, and how to plead and defend these cases.
NFT Marketplaces and Secondary Sale Royalties: Smart Contracts, Copyright, and Contractual Expectations
NFTs promised artists something the traditional art market never delivered: an automatic royalty on every resale, enforced forever by code. The promise collapsed when marketplaces made royalties optional in 2023, and this article explains why—and what creators can actually do now. It separates the token from the underlying copyright (17 U.S.C. § 202), traces why U.S. law supplies no resale-royalty right (the first-sale doctrine of § 109, the failed California Resale Royalties Act, VARA's narrow reach), and works through the contract theories that founder on privity. It analyzes the two landmark NFT decisions—Hermès International v. Rothschild (the MetaBirkins verdict) and Yuga Labs v. Ripps—to show how trademark, not royalty law, has done the real doctrinal work, and it weighs the Howey securities risk that aggressive royalty marketing invites. It closes with concrete, drafting-level guidance for creators and a detailed FAQ. The throughline: code can execute, but code is not law.
Copyright in Software Interfaces After Google v. Oracle: APIs, Compatibility, and Reverse Engineering
This article explains how United States law treats the copying of software interfaces, from function names and command languages to file formats and protocols, after the Supreme Court's 2021 decision in Google LLC v. Oracle America. It traces the doctrine from Baker v. Selden and the 1980 software amendments through Whelan, Altai, Lotus v. Borland, and the reverse-engineering fair use cases, then walks through each stage of the Oracle litigation and what the Supreme Court did and did not decide. It covers the developments since 2021, including SAS Institute v. World Programming and the Ninth Circuit's treatment of interoperable add-on code, and the walls outside copyright that now matter as much as copyright itself: license terms, the DMCA's anti-circumvention rules, the Computer Fraud and Abuse Act, trade secret law, and patents. It explains why clean-room development still works and where it does not, and how AI coding assistants complicate the picture. An extended worked example, a table of open questions, common mistakes, an FAQ, and practical takeaways for both implementers and interface owners close the article.
Obtaining or Setting Aside a Default Judgment: A Practical Guide
This guide takes both sides of a federal default through every step, from the day the answer deadline passes to the day the judgment is enforced or vacated. For plaintiffs it covers confirming service and the deadline, requesting entry of default, the Servicemembers Civil Relief Act check, choosing between a clerk's judgment and a court judgment, building the damages record, drafting the Rule 55(b)(2) motion and proposed judgment, and enforcing the result. For defendants it covers triage by procedural posture, stopping enforcement, building the declarations that explain the default and establish a meritorious defense, choosing among Rule 6(b), Rule 55(c), and the Rule 60(b) grounds, and negotiating a stipulation. Each step states what to do, why, the governing authority, common pitfalls, timing, and cost. A timeline and cost table, a worked example that runs through both sides of one case, common mistakes, an FAQ, and takeaways close the guide.
False Endorsement Under the Lanham Act: Celebrities, Models, Sound-Alikes, and the Right of Publicity's Federal Cousin
A strip club posts a model's photo, a car ad hires a sound-alike, a video game renders a retired star, an AI voice sells supplements, and each person reaches for the same federal statute. This article explains how Section 43(a)(1)(A) of the Lanham Act came to protect human identity, why the claim turns on consumer confusion and recognizability, and how it differs from the state right of publicity. It reads the leading cases closely, from Allen and Waits through Electra, Souza, Brown, and Hara, and explains what Jack Daniel's left of the Rogers defense. It covers Lexmark, Dastar, nominative fair use, remedies, and insurance. It then applies the doctrine to AI voices and digital replicas, including Lehrman v. Lovo, the FTC's endorsement and testimonial rules, and the unfinished NO FAKES Act. Worked hypotheticals show how the same facts come out differently depending on who is recognized, by whom, and in what kind of work.
Foreclosure and Mortgage Servicing: Default, Loss Mitigation, and the Sale
Foreclosure is a collection remedy dressed as a real estate transaction, and almost everything that decides its outcome happens before the sale date. This article explains the two foreclosure systems and why the difference between them matters more than any other fact, the servicing rules that give homeowners real procedural rights and servicers real liability, the loss mitigation options in the order they should be evaluated, and the defenses that actually work as opposed to the ones that circulate on the internet. It covers standing and chain of title, dual tracking, the bankruptcy alternatives, deficiency judgments and their limits, and what happens to a homeowner after the sale. It is written for homeowners in default, for lenders and servicers, and for counsel on either side.
UCC Sales and Supply Chain Toolkit
A supply relationship is governed by whichever document won a contest nobody was aware of, by default rules most parties have never read, and by a handful of provisions that decide who bears a loss that has not yet occurred. This toolkit works through the arc of a goods transaction: how the contract forms and whose terms survive, what warranties attach and how each is disclaimed, how remedies are limited and when the limitation fails, when risk of loss passes, what a buyer may reject and when it loses the right, what remedies each side has on breach, and how disruption is excused. It closes with the master agreement structure that avoids the form fight entirely and with the records that decide any dispute. It closes with insolvency and the reclamation, adequate assurance, and administrative priority rights that matter when a counterparty stops paying.
Rule 45 Subpoena Response Checklist: A Practical Checklist
A subpoena to a company that is not a party to the lawsuit is a deadline problem before it is a legal problem, and the most valuable action available—a timely written objection—takes an afternoon and shifts the entire burden of going forward to the party that issued it. This checklist runs the response in the order the clock requires: validate service and the compliance geography on day one, issue a preservation hold, identify whose privilege and confidentiality are implicated, serve a specific objection with a quantified burden showing and a narrowed proposal before day fourteen, then negotiate scope, cost, and format. It closes with production mechanics, testimony, and the motion practice that follows if negotiation fails. It closes with the privilege log, the cost-shifting request, and the protective order terms worth negotiating before anything is produced.
False Endorsement Clearance and Claim Checklist: A Practical Checklist
This checklist turns false endorsement risk into check-off tasks for two moments, before an identity goes into an ad or a work, and after someone complains. Early phases classify the use, identify every recognizable person, paper consent that actually runs to the user, and handle sound-alikes, AI voices, and FTC endorsement rules. Later phases cover launch records, the first week after a demand letter, evaluating the claim, and claimant intake. A final phase lists litigation tasks for both sides, including Rogers motions, survey challenges, and damages proof. Each item names its authority and is short enough to use at a desk.