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.
Employee Benefits Compliance Toolkit: ERISA, COBRA, and the Affordable Care Act
A group benefits program is a set of ERISA plans, each requiring a written document, a summary plan description, a fiduciary process, and a filing calendar—and most small and mid-sized employers have insurance certificates instead of plan documents, an insurance broker instead of a fiduciary process, and no idea which obligations run to the plan rather than to the carrier. This toolkit builds the program from the plan documents outward: the fiduciary structure and the fee analysis the Consolidated Appropriations Act now requires, the health plan overlay of COBRA, the ACA mandate and reporting, HIPAA, parity, and the newer transparency obligations, the retirement plan operational requirements, and the correction programs that exist because these failures are common. It sorts the plan documents, the fiduciary process, the notice calendar, and the reporting obligations into the order they actually come due. It also identifies where the carrier's obligations end and the employer's begin, which is the single most common source of unrecognized liability.
Cybersecurity Program Toolkit
Nearly every legal regime that touches data now requires the same handful of controls, described in slightly different words, and the organizations that fail examinations and lose claims are rarely the ones that lacked a framework. They are the ones whose risk assessment covered part of the environment, whose backups had never been restored, whose vendor agreements had a thirty-day breach clock, and whose incident response plan had never been exercised. This toolkit builds a program that satisfies the overlapping requirements at once: the data and asset inventory that scopes everything, the risk assessment the regulations actually require, the technical and administrative controls in priority order, vendor oversight, incident response and the notification clocks, insurance, and the governance and testing that make it durable. It closes with the notification clocks that run simultaneously under different regimes, the insurance that responds, and the testing cadence that keeps the program honest.
Trademark Registration Toolkit: A Roadmap from Brand Idea to Federal Registration and Maintenance
This toolkit is a high-level roadmap and curated library guide for taking a brand from an idea all the way to a federal trademark registration and through the maintenance that keeps it alive. It walks every stage in order—mark selection, clearance, choosing a filing basis, preparing and filing the application, examination and office actions, publication and opposition, registration, post-registration maintenance, and enforcement—and at each stage points to mclaw.io's articles and step-by-step checklists plus the controlling statutes, rules, and USPTO resources. It reflects the post-January 2025 USPTO fee and filing changes, including the single base application fee with surcharges, the cloud-based Trademark Search, and Trademark Center filing. Use it to orient yourself in the field and to find the right detailed resource for the task in front of you. Fees and deadlines change, so verify current amounts at the official USPTO site before relying on any number here.
HIPAA Business Associates and Cloud Computing
Almost every cloud service that touches electronic protected health information is a HIPAA business associate, and the 2016 HHS cloud guidance closed the door on the comfortable myth that a vendor who only stores encrypted data—or never looks at it—escapes the rules. This guide explains who counts as a covered entity, a business associate, and a subcontractor; why the "conduit exception" almost never saves a cloud provider; and exactly what a compliant business associate agreement must contain under 45 C.F.R. 164.504(e). It walks through the Privacy, Security, and Breach Notification Rules as they apply to the cloud, the encryption-based breach safe harbor, and the shared-responsibility model that determines who is on the hook when something goes wrong. It covers OCR enforcement and the steep tiered penalties, the sweeping 2024–2025 Security Rule overhaul proposal that would make encryption and multifactor authentication mandatory, and the special problems of pushing PHI into AI and analytics pipelines. The aim is a single, readable map a hospital administrator, a SaaS founder, a privacy lawyer, and a curious patient can all follow.
Data Breach Class Actions: Article III Standing, Negligence Claims, and Forensic Report Privilege
This article explains how a data breach becomes a class action, usually within days of the notice letter, and what decides those cases. It reads the Supreme Court's standing trilogy and every circuit's response closely, including the widening split between the Fourth Circuit's Holmes decision and the Second, First, and Third Circuits. It covers the merits theories (negligence and the economic loss rule, implied contract, CCPA section 1798.150, and consumer statutes), then the forensic report cases from Target through Capital One, Clark Hill, Rutter's, and the 2025 Morrill order. It closes with MDL practice, the Marriott class certification saga, what settlements contain, and how regulators overlap. Plaintiffs' lawyers, defense counsel, general counsel, and curious judges will each find the doctrine and the practical consequences side by side.
Copyright Infringement Claims Against Generative AI: The New York Times, Getty, and What Comes Next
Generative AI has triggered what may become the most consequential copyright litigation in decades, as publishers, photographers, authors, music rightsholders, and film studios sue the companies whose models were trained on their works. This article delivers the definitive, current-as-of-mid-2026 account of that fight: the first wave of merits rulings in Thomson Reuters v. ROSS, Bartz v. Anthropic, and Kadrey v. Meta; the record $1.5 billion Bartz settlement; the Getty UK judgment; and Germany's landmark GEMA v. OpenAI decision. It explains every legal theory in play—direct and secondary infringement, the four-factor fair use test as courts are actually applying it after Warhol v. Goldsmith, the intermediate-copying line that runs from Sega to Google Books, derivative-works and DMCA Section 1202 claims, and substantial similarity on the output side. It distinguishes the input (training) question from the output (memorization) question, surveys the emerging licensing market and the EU's divergent opt-out regime, and maps the realistic end-states. Written for content owners, AI developers, and the counsel advising both.
Negotiating a Series A Term Sheet: Economics, Control, and the Terms That Matter
A Series A term sheet is two pages of economics and four pages of control, and founders reliably negotiate the wrong ones. Valuation absorbs the attention while the option pool placement, the liquidation preference structure, the protective provisions, and the board composition quietly determine both what the founders keep in an exit and who decides whether the exit happens at all. This guide works through the term sheet in the order it is usually written: the economic terms including the option pool shuffle and how preferences actually distribute proceeds, the control terms including board seats and the veto list, the shareholder terms that govern transfers and future rounds, and the founder-specific provisions that get inserted without discussion. It explains which terms are genuinely market, which are negotiable, and what each is worth.
Federal Appellate Practice: Preserving Error, Standards of Review, and Briefs That Win
An appeal is not a second trial. It is a review of what the trial court did with what it was given, which means the appeal was largely won or lost in the district court by lawyers who may never have thought about it. This article explains federal appellate practice from that perspective. It covers appellate jurisdiction, including the final judgment rule, the narrow exceptions of section 1292, Rule 54(b) certification, and the collateral order doctrine; the jurisdictional deadline for the notice of appeal and the motions that toll it; and the standards of review that determine what an appellate court is actually permitted to do, with practical guidance on characterizing issues to obtain the most favorable standard. A long section addresses preservation, including the objection requirements at trial, the interaction between denied summary judgment motions and Rule 50 after Ortiz v. Jordan and Dupree v. Younger, and the plain error and harmless error doctrines. It then turns to craft: assembling the record, selecting issues, structuring the statement of the case, writing an argument that respects the standard of review, oral argument preparation, and post-decision options including panel rehearing, rehearing en banc, and certiorari. It closes with checklists, a worked example, an FAQ, and related reading.
Auditing a Trademark Filing for Fraud Risk and Defending a Fraud Claim: A Practical Guide
This guide walks through what to do before a trademark declaration is signed, what to do when an audit turns up a problem, and how to plead or defend a fraud claim if a dispute arrives. It gives a step-by-step use audit that works good by good, with special attention to software, licensed use, discontinued lines, and specimens. It compares the correction tools (application amendments, division, Section 7 deletions, Section 15 withdrawal, surrender, and refiling) by timing, cost, and evidentiary effect, including the traps that can turn a late deletion into a judgment. For challengers, it covers the decision whether to plead fraud at all, the Rule 9(b) and Bose pleading standard, sample language, and forum choice. For defendants, it covers the first thirty days, motions, signer preparation, privilege, and fallback positions on the remedy. Fees reflect the USPTO schedule last revised 1 November 2026, and the law is stated as of 6 November 2026.
AI-Assisted Work Copyright Registration Checklist: A Practical Checklist
This checklist turns the Copyright Office's rules for works containing AI-generated material into a sequence of concrete tasks for creators, in-house teams, and outside counsel. It covers confirming that a human authored something registrable, building a contribution record, sorting claimable material from material that must be excluded, settling authorship and ownership, choosing the right application and filing date, completing each field of the Standard Application, preparing the deposit, and answering examiner questions. Later parts address refusals and reconsideration, correcting earlier registrations that did not disclose AI material, protecting and enforcing the work once the certificate issues, and auditing an opponent's AI-assisted registration in litigation. Each item carries a short note on why it matters and the governing statute, regulation, case, or Copyright Office guidance. The checklist reflects the law and Office practice as of October 2024, including the March 2023 registration guidance and the 2023 district court decision in Thaler v. Perlmutter.
Website Accessibility Defense Toolkit: Demand Responses, Privileged Audit Engagements, and Remediation Records
This toolkit collects the working papers a business and its counsel need to defend a website accessibility demand or Title III lawsuit and to keep the next one from succeeding. It includes four demand response letters for different postures, a three-party privileged audit engagement letter, a remediation plan and log, a litigation hold notice, an insurer tender letter, an accessibility statement, settlement agreement key terms, vendor contract clauses, an exposure and strategy memo outline, and a mootness declaration outline. Each template states its purpose, owner, and timing, and is followed by drafting commentary tied to the governing authority. A running example follows a regional outdoor retailer through a demand from a Florida firm. An index table at the top maps each template to the step it supports.
Patent Ownership, Assignments, and Standing: Chain-of-Title Problems That Sink Cases
A patent is only as enforceable as its chain of title, and the most expensive discovery in patent litigation is that the plaintiff does not own what it is asserting. This article explains who owns an invention at the moment of conception, why inventorship and ownership are different questions with different consequences, and how the Supreme Court's decision in Stanford v. Roche confirmed that even federally funded inventions vest first in the inventor. It works through assignment drafting, including the decisive difference between a present assignment and a mere promise to assign that the Federal Circuit drew in FilmTec, the treatment of future inventions, and state statutes that limit what an employer may claim. It then addresses standing: who may sue, what a patentee must hold to bring an action alone, when an exclusive licensee may sue in its own name, and why the Federal Circuit reframed much of this as a statutory rather than jurisdictional question in Lone Star Silicon. Sections on correction of inventorship, recordation and bona fide purchasers, security interests, government rights under Bayh-Dole, and shop rights follow, with a diligence checklist, a worked example, an FAQ, and related reading.