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.
Expressive Work Right of Publicity Risk Checklist: A Practical Checklist
This checklist turns the case law on the right of publicity and the First Amendment into a use-by-use risk review for anyone who puts a real person into a film, series, documentary, book, podcast, song, game, artwork, or campaign, and for the people depicted and their lawyers. It starts with triage (who appears, how each use is classified, and which forum and test apply) and then works through the statutory exemptions, the competing First Amendment tests, newsworthiness, commercial speech, fictionalization and defamation, and the federal overlays of false endorsement, copyright preemption, and Section 230. Separate parts cover medium-specific red flags, digital replicas, disclaimers and marketing copy, the clearance file and insurance, and readiness for an anti-SLAPP motion or other early dismissal. A parallel part for the person depicted covers preservation, claim selection, fee exposure, limitations periods, and pre-release demands. Each item is phrased as an action with a short note and the authority behind it, and the checklist closes with a risk scoring table, an FAQ, and practical takeaways.
Failure to Function and Ornamental Refusals: Why Slogans, Hashtags, and Merchandise Designs Get Rejected
This article explains why the USPTO refuses to register slogans, hashtags, catchphrases, and designs printed on merchandise, even when nobody else owns them, and why the refusal turns on how consumers perceive the matter rather than on whether it is original. It traces the failure-to-function doctrine from the statutory definition of a trademark in Section 45 through the TMEP categories for ornamental matter, informational matter, widely used messages, and hashtags, and it tells the stories of the leading decisions, from the polka dots of In re Swift and the BLACKER THE COLLEGE slogan to I ♥ DC, EVERYBODY VS RACISM, .SUCKS, and the Federal Circuit's 2025 remand in In re Brunetti. It covers the constitutional backdrop after Matal v. Tam, Iancu v. Brunetti, and Vidal v. Elster, and the role the same question plays in oppositions, cancellations, and infringement suits. Open questions are identified, including the missing standard for widely used words, the weight of print-on-demand evidence, and the limits of the Supplemental Register and Section 2(f) for messages. Practical implications for brand owners, merchandise sellers, and challengers, an extended worked example involving a small apparel brand, common mistakes, an FAQ, and takeaways close the article.
USPTO Trademark Application Checklists: From Filing to Registration
This is the operational, filing-desk checklist for federal trademark prosecution—the tick-list you run from the moment you open the application form through to a registered, maintained mark. It walks the mechanical arc step by step: completing and submitting the base application, reading the filing receipt, monitoring status in TSDR, triaging and answering office actions on the post-2022 three-month clock, surviving publication and opposition, perfecting an intent-to-use application with a Statement of Use or extensions after a Notice of Allowance, and keeping the registration alive with Section 8, 9, and 15 filings. Every box is grounded in primary authority (the Lanham Act, 37 C.F.R., the TMEP, and the Trademark Modernization Act) and updated for the USPTO's January 18, 2025 fee overhaul, which retired the TEAS Plus and TEAS Standard tiers in favor of one base application plus surcharges, filed through the new Trademark Center. Fees change—verify current amounts at USPTO.gov before filing.
Patent Eligibility After Alice: Strategies for Protecting Software and Business Method Innovations
More than a decade after the Supreme Court's decision in Alice Corp. v. CLS Bank, software and business method patents still face a brutal invalidity rate under 35 U.S.C. Section 101. Yet meaningful patent protection for software, fintech, cybersecurity, and AI innovations remains achievable for those who understand the rules. This guide walks through the Alice/Mayo two-step framework and its statutory and historical roots (Chakrabarty, Diehr, Bilski, Mayo), the Federal Circuit guideposts that mark the narrow path to eligibility (Enfish, DDR Holdings, McRO, BASCOM, Finjan, and the factual twist of Berkheimer), and the USPTO's evolving examination guidance, including the 2019 Patent Eligibility Guidance, the 2024 AI update, and the precedential Desjardins decision. It then turns practical: claim-drafting and prosecution strategies grounded in labeled hypotheticals, a layered-protection portfolio plan that pairs patents with trade secrets, copyright, and design patents, the status of Section 101 reform through PERA, and a working checklist. The goal is to give judges, practitioners, and inventors alike a clear, usable map of where claims live and where they die.
Defending a Deposition Checklist: A Practical Checklist
Defending a deposition is one of the most consequential and least understood skills in civil litigation, because harmful testimony can decide a case on summary judgment or in settlement long before trial. This checklist walks defending counsel through the arc from the witness preparation session to the errata sheet: preparing the witness within the ethical line that separates legitimate preparation from improper coaching, controlling the record, making proper concise objections under Rule 30(c)(2) and the distinction between form and substance, knowing the three narrow grounds for instructing a witness not to answer, navigating the rules on conferring with the witness, defending the Rule 30(b)(6) corporate designee and the expert, terminating an abusive deposition under Rule 30(d)(3), and handling transcript review and the errata sheet. Each phase is paired with the reason it matters and the case law—anchored by Hall v. Clifton Precision—that punishes obstruction.
Website Terms of Service Review Checklist: A Practical Checklist
The enforceability of a terms of service document is decided almost entirely by the screen that presents it, not by the words inside it. This checklist reviews both. It starts with formation, walking the interface features courts actually examine, and with the evidentiary record that lets a company prove what a particular user saw on a particular day. It then reviews the substantive provisions in the order they generate disputes: dispute resolution and the mass arbitration problem, unilateral modification, acceptable use and automated access, the user content license, limitations of liability, and auto-renewal and cancellation. Later phases cover accessibility of the assent flow, minors, and the jurisdiction-specific supplements that a single global document cannot replace.
Responding to a Data Breach: The First Seventy-Two Hours
The first three days of a security incident set the terms for everything that follows. They determine whether the forensic investigation is privileged, whether the evidence needed to scope the incident still exists, whether the insurer will pay, and whether the notification clocks that run from discovery can be met. Most of these decisions must be made before anyone knows what happened, which is why they should be made in advance and written down. This guide runs the response hour by hour through the first seventy-two hours and the two weeks that follow, covering the sequencing of containment against preservation, the engagement structure that protects the forensic report, the ransom and law enforcement decisions, the scoping work that drives every notification obligation, and the communications that will be read by regulators and plaintiffs' counsel.
Legal Protection of Software: Copyrights, Patents, Trade Secrets, and Contracts
Proprietary software is often a company's single most valuable asset, yet no one legal doctrine fully protects it, because software is at once a literary work, a functional machine, a confidential secret, and a bundle of contract rights. This guide explains the four pillars of software protection—copyright, patent, trade secret, and contract law—in plain language, following a fictional startup's routing engine from the keyboard to the courtroom. It shows what each pillar covers, where each one fails, and how experienced counsel layer them so that one tool's blind spot becomes another tool's strength. It walks through the governing statutes and the landmark cases that shape them, from *Altai* and *Alice* to *Google v. Oracle*, *Vernor*, and *Van Buren*. It addresses who actually owns software, why a missing assignment can quietly sink a multimillion-dollar deal, and how to combine the four pillars into a coherent program. By the end, a reader with no legal training should understand not just the rules but the strategy behind them.
Buying a Franchise: A Practical Guide for Prospective Franchisees
Buying a franchise is buying a contract, and the contract is drafted entirely by the seller and is largely non-negotiable. The disclosure document the law requires the franchisor to give you contains nearly everything you need to evaluate the opportunity, and most buyers do not read it carefully because it arrives at four hundred pages during an emotional decision. This guide covers what to do with it: how the FTC Franchise Rule works and what the disclosure period gives you, which of the twenty-three items in the disclosure document actually predict outcomes, how to read the financial performance representation and the outlet turnover tables, what the franchise agreement's key provisions mean in practice, how to conduct real diligence including franchisee validation calls, what is genuinely negotiable, and how to structure the entity, the lease, and the financing. It closes with the entity, lease, and financing decisions that surround the purchase, a four-week evaluation schedule, and the distinct analysis that applies when buying an existing unit from a departing franchisee.
Age Verification and Minors Online After Free Speech Coalition v. Paxton: What States Can Require of Websites and Apps
Free Speech Coalition v. Paxton upheld age checks for sites heavy with material obscene to minors, and the courts have spent the time since arguing about how far that reasoning travels. This article reads the opinion closely, then traces the fight over social media parental-consent laws through the Fifth, Sixth, Ninth, and Eleventh Circuits, where the same statutes have drawn strict scrutiny, intermediate scrutiny, and commercial speech review. It explains why Moody v. NetChoice has become the most useful case states have, and why a list of statutory exemptions can decide the level of scrutiny. It covers design codes, addictive-feed laws, app store acts, the 2025 COPPA amendments, and Section 230 product-design claims. It also explains what document upload, face estimation, and device signals actually do, what they collect, and which biometric and privacy statutes they trigger. Readers get a working map of who is covered, who enforces, and what remains unsettled.
Image Copyright Demand Letters: How Photo Licensing Enforcement Works and What Claims Are Really Worth
Image copyright demand letters arrive by the thousands each year, usually generated after a crawler matches a photograph on a business website to a photographer's or agency's catalog. This article explains how that enforcement business works, who sends the letters, and how the claims move from automated notice to negotiation, federal lawsuit, or Copyright Claims Board proceeding. It then walks through the legal levers that determine what a claim is really worth: ownership and standing, the registration prerequisite and the Section 412 timing rule, actual and statutory damages, fee shifting, copyright management information claims, the limitations period after Warner Chappell v. Nealy, and the defenses of license, fair use, de minimis use, embedding, and the DMCA safe harbor. Key cases are told as stories, including Fourth Estate, Kirtsaeng, Warhol, Perfect 10, Hunley, Goldman, Brammer, and Mango. An extended worked example values a single claim from both sides, and the article closes with common mistakes, an FAQ, and practical takeaways for recipients and rights holders.
Special Needs Trusts and Medicaid Planning: Preserving Benefits Across Generations
Means-tested public benefits impose resource and income limits so low that any ordinary inheritance, settlement, or gift destroys eligibility, and the destruction is usually accidental. Special needs trusts exist to hold assets for a beneficiary without those assets counting as available resources, and the rules differ sharply depending on whose money funds the trust. A trust funded with the beneficiary's own money carries a mandatory Medicaid payback and strict statutory conditions; a trust funded by a parent or grandparent carries neither and is far more flexible. This article covers the benefits programs and their eligibility rules, the trust types and when each is used, drafting and administration including the distributions that quietly reduce a benefit check, and the Medicaid planning techniques available to an older adult facing long-term care costs.