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.
The Intersection of Design and Utility Patents: Navigating Concurrent Protection and Double Patenting Challenges
A single product can often be protected by both a utility patent (covering how it works) and a design patent (covering how it looks), and pursuing both is frequently the smartest intellectual property strategy a company can adopt. This article explains the foundational differences between the two regimes, the functionality bar that separates a protectable ornamental design from an unprotectable functional one, and the precise circumstances in which concurrent protection is available. It then works through the double patenting doctrine as it applies across patent types, including obviousness-type double patenting, the Carman Industries cross-reading rule and the patentee-favorable two-way analysis, the Section 121 divisional safe harbor, the common-ownership requirement, and the role and risks of terminal disclaimers (including the USPTO's withdrawn 2024 rulemaking). The article also surveys the very different infringement tests and damages rules that apply to each regime, including the design-patent total-profit rule of 35 U.S.C. Section 289 after Samsung v. Apple and the article-of-manufacture question, and the seismic change to design-patent obviousness wrought by LKQ Corp. v. GM. A detailed worked example ties the doctrines together for a single hypothetical product, and a practitioner FAQ closes the piece.
Trade Secret Litigation Toolkit: Identification Statements, Two-Tier Protective Orders, and Forensic Protocols
This toolkit collects the working documents of trade secret litigation, each introduced by its purpose, the person who should prepare it, and when to use it, and each followed by drafting commentary tied to the governing statutes, rules, and cases. It opens with a model identification statement that meets the reasonable particularity standard, an internal secret-by-secret evidence matrix, a defendant's deficiency letter, and case management provisions that fix the timing, form, and amendment of the identification. The middle templates cover the key provisions of a two-tier protective order with a Rule 502(d) clause, a source code review protocol, a preservation demand letter, a stipulated neutral forensic examination protocol, and a forensic artifact chart with a chain-of-custody log. The final templates address requests for personal email and cloud data that respect the Stored Communications Act, Rule 30(b)(6) topic lists for each side, and a trial confidentiality plan with a secret-by-secret verdict form. The templates reflect the law as of January 2025 and are written for use by trade secret owners and by the employees and competitors they accuse.
Union Organizing and the NLRA: What Employers May and May Not Do
Most employers first encounter labor law after a petition is filed, when the rules that were broken were broken months earlier by managers who had never heard of them. This article explains what the National Labor Relations Act actually protects and what it forbids. It starts with Section 7 rights, which apply to nearly all private-sector employees whether or not a union is involved, and the protected concerted activity doctrine that reaches ordinary conversations about pay and working conditions. It then walks an organizing campaign from card signing through election, covering what supervisors may say and what they may not, the solicitation and distribution rules that must exist before a campaign begins, and the bargaining orders that can follow serious violations. Later sections address bargaining unit determinations, supervisor status, the duty to bargain in good faith, strikes and lockouts, Weingarten rights, decertification, and the work rules and handbook provisions that generate unfair labor practice findings at non-union employers, with a worked example, a supervisor briefing script, and an FAQ.
Polaroid Factors on Summary Judgment in the Second Circuit: A Practical Guide
In the Second Circuit, whether one trademark is likely to be confused with another is governed by the eight-factor test announced in Polaroid Corp. v. Polarad Electronics Corp. Likelihood of confusion is a fact-laden inquiry, which makes summary judgment the exception rather than the rule—but it is far from unavailable, and certain factors lend themselves to resolution as a matter of law much more readily than others. This guide explains, in plain language for lawyers and business owners alike, how courts in the Second Circuit (including the busy Eastern District of New York) apply each Polaroid factor on summary judgment, which factors most often drive a no-confusion ruling, and how Rule 56's "no genuine dispute" standard plays out factor by factor. It pays particular attention to the dissimilarity of marks, competitive proximity, the absence-of-actual-confusion inference from long coexistence, and the demanding evidentiary showing required to prove bad faith. It closes with a worked hypothetical, a frequently asked questions section, and concrete takeaways for both movants and non-movants.
Stone Creek v. Omnia: Knowledge Destroys Good Faith Under the Tea Rose-Rectanus Doctrine
In Stone Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426 (9th Cir. 2017), the Ninth Circuit held that a junior user's mere knowledge of a senior user's mark destroys the "good faith" required for the century-old Tea Rose-Rectanus defense—and that internet commerce makes geographic "remoteness" far harder to prove. The case is a cautionary tale: the infringer was Stone Creek's own manufacturing partner, which recreated the STONE CREEK logo from Stone Creek's marketing materials and sold identical furniture to a Midwestern department-store chain for five years. This article traces the doctrine from its 1916-1918 Supreme Court origins through Stone Creek and the deeper circuit split it sharpened; explains how the Lanham Act's "Swiss cheese" registration system, its constructive-notice rule (15 U.S.C. § 1072), and its constructive-use rule (§ 1057(c)) interact with common-law territorial rights; and unpacks the remedies twist—the willfulness-for-disgorgement holding that the Supreme Court later abrogated in Romag Fasteners v. Fossil (2020). It closes with worked hypotheticals, practical guidance for brand owners, licensees, and litigators, an FAQ, and cross-links to related trademark resources. Written for judges, practitioners, and business owners alike.
Federal Subject-Matter Jurisdiction: Arising Under, Diversity, Supplemental Claims, and the Defect That Never Waives
This article explains why a federal judgment can be erased years after trial because of a defect nobody noticed, and why the party who picked the court can be the one to raise it. It reads the leading cases on federal question jurisdiction closely, from Mottley through Grable and Gunn, including how arising-under doctrine works in patent, copyright, and declaratory judgment cases. It then covers diversity: complete diversity, the citizenship of people who work anywhere, corporations under Hertz, LLCs and trusts traced through every layer, and the amount in controversy. Supplemental jurisdiction, removal, remand, snap removal, and the voluntary-involuntary rule follow. The law is stated through the Supreme Court's 2026 decisions in Hain Celestial v. Palmquist, Enbridge v. Nessel, and Jules v. Andre Balazs Properties, along with Royal Canin v. Wullschleger from 2025. A table sorts which defects can be cured and which cannot.
Trade Secret Damages and Remedies: Unjust Enrichment, Reasonable Royalties, Injunctions, and Exemplary Awards
Trade secret cases are often won on liability and then shrunk, reversed, or retried on remedies, so the remedy theory deserves as much care as the proof of misappropriation. This article explains every remedy the Defend Trade Secrets Act and the Uniform Trade Secrets Act make available: injunctions, damages for actual loss, unjust enrichment including avoided development costs, reasonable royalties, exemplary damages of up to twice the compensatory award, attorney's fees, and interest. It walks through the leading decisions, including Syntel v. TriZetto, Epic Systems v. Tata Consultancy, Motorola Solutions v. Hytera, Texas Advanced Optoelectronic Solutions v. Renesas, the Virginia Appian v. Pegasystems reversal, and the classic head start cases, and it flags the real splits on avoided costs, burden of proof, judge versus jury, and the meaning of malice. It also covers injunction limits on employee mobility, apportionment and double counting, expert proof, criminal restitution, preemption, and the defenses that cut awards down. It closes with strategy for both sides, costs, common mistakes, two worked examples with real numbers, an FAQ, and practical takeaways.
Social Security Disability: SSDI, SSI, and the Five-Step Sequential Evaluation
Social Security disability is a two program system with one definition of disability, a five step decision process, and an appeals structure that most claimants abandon before reaching the stage where they were most likely to win. This article explains both programs and the eligibility rules that separate them, walks the sequential evaluation step by step with the evidence that matters at each, covers residual functional capacity and the vocational grid rules that decide the majority of cases, and takes the appeal from reconsideration through the ALJ hearing, the Appeals Council, and federal district court review. It also covers work incentives, overpayments, representative fees, and the interaction with workers compensation and other benefits.
Hiring With Background Checks: FCRA Compliance, Ban-the-Box, and Adverse Action
Running a background check is a regulated act, and the regulation comes from three directions at once. The Fair Credit Reporting Act governs the mechanics—what you disclose, what you authorize, what you send before and after a decision, and in what form. Title VII and the EEOC's guidance govern whether the criteria you apply have a discriminatory effect. And a growing body of state and local fair chance laws governs when you may ask, what you may consider, and what individualized assessment you must perform before rejecting someone. This guide walks the process end to end, from the job posting through the adverse action letter, identifies the specific defects that generate class actions, and covers the related screening practices that carry their own rules.
Negotiating a Commercial Loan Term Sheet
A term sheet looks like a page of numbers and is actually the entire loan agreement in outline, negotiated at the only moment when the borrower has leverage. Once it is signed, the definitive documents are drafted from it, and every provision the borrower did not address becomes the lender's form. This guide covers what to negotiate and in what order of priority: the structure and size of the facility, the borrowing base if there is one, pricing and fees including the ones that appear only at prepayment, the financial covenants and the definition of EBITDA that determines whether they are ever breached, the affirmative and negative covenants that constrain ordinary business decisions, the events of default and their cure periods, collateral and guaranties, and the conditions precedent that determine whether the loan actually funds. It closes with what a borrower should do before approaching any lender, and with the syndication and flex provisions that appear once a facility grows past the bilateral stage.
Pleading and Proving Induced and Contributory Patent Infringement: A Practical Guide
This guide walks patentees and accused infringers through an induced or contributory patent infringement case in the order the work actually happens, from the pre-suit investigation and notice letter through pleading, infringement contentions, discovery, expert reports, summary judgment, jury instructions, and post-trial motions. Each step explains what must be proved under 35 U.S.C. § 271(b) and (c), what evidence carries the burden, which motions decide the issue, and what each side should file, say, or avoid. It covers the pleading standard after Twombly and Iqbal, the split over whether the complaint itself can supply knowledge, divided-infringement allegations after Akamai, the opinion-of-counsel election under 35 U.S.C. § 298, usage evidence and surveys on noninfringing uses, and the model jury instructions. A worked example follows a smart-thermostat dispute from the first letter to the verdict, with dates, decisions, and rough costs. Decision tables, common mistakes, and an FAQ close the guide.
Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants
A motion to dismiss is the first real fight in most federal cases, and it is decided on a record consisting of exactly one document. This guide explains how Rule 12 actually works: the seven enumerated defenses, the strict consolidation and waiver rules of Rule 12(g) and 12(h) that destroy more defenses than any judge ever does, and the sequencing questions courts face when jurisdiction, venue, and merits arguments arrive together. It covers the plausibility standard of Twombly and Iqbal in operational terms, including the two-step method courts actually use, the limits the Supreme Court reaffirmed in Erickson and Johnson v. City of Shelby, and the heightened pleading regimes of Rule 9(b) and the securities laws. It explains what a court may consider without converting the motion to summary judgment, the doctrines of incorporation by reference and judicial notice and how they are abused, and the standards for facial and factual attacks under Rule 12(b)(1). It then turns to strategy: when a motion is worth filing, when it merely educates the plaintiff, how to use Rule 12(e) and 12(f), how leave to amend works under Foman v. Davis, and how to write an opposition that survives. It closes with drafting checklists, a worked example, an FAQ, and related reading.