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.
Patent Marking Compliance: A Practical Checklist
Patent marking under 35 U.S.C. § 287 is one of the most consequential yet most overlooked compliance obligations in patent law—failing to mark can erase years of pre-suit damages even against a deliberate copyist, and after SCA Hygiene abolished laches, marking is now the single most important limit on how far back a patentee can reach for damages. This checklist walks a patentee through earning constructive notice by consistent, continuous marking; using the AIA virtual-marking website option; policing licensees (with the Arctic Cat burden-shifting framework); handling method claims and multi-patent products; sending an effective actual-notice letter while managing declaratory-judgment risk; and avoiding false-marking liability under § 292. It closes with an auditable compliance program. Verify current fees and any deadlines at the official site.
Securities Fraud Litigation Under Rule 10b-5: Elements, the PSLRA, and Defense Strategy
A securities fraud class action is a specialized proceeding with its own pleading rules, its own gatekeeping mechanisms, and a damages model that can exceed a company's market capitalization. This article explains how these cases work from the defense side. It covers the elements of a Rule 10b-5 claim, including the materiality standard, the scienter requirement and the strong inference test, and the reliance presumption that makes class treatment possible along with the price impact rebuttal that has become the central battleground at certification. It then covers the Private Securities Litigation Reform Act's heightened pleading requirements, the automatic discovery stay, the lead plaintiff process, and the safe harbor for forward-looking statements. Later sections address Securities Act claims under Sections 11 and 12 which require no scienter, opinion statements after Omnicare, omissions after Macquarie, class certification, damages models, settlement dynamics, and directors and officers insurance.
COPPA Children's Privacy Compliance Checklist: A Practical Checklist
Children's privacy compliance turns on two documents most companies do not have: a dated audience analysis explaining why the service is or is not directed to children, and a written retention policy showing what is kept, why, and for how long. Recent enforcement has concentrated on retention and deletion rather than collection, and the amended rule now requires both documents explicitly. This checklist runs the analysis in order—classify the service, inventory every data element and every embedded SDK, map each to a lawful basis, build the consent flow where consent is required, and implement deletion that reaches derived data as well as raw records. It closes with the design defaults that satisfy the newer state and international regimes.
Wage and Hour Compliance Toolkit
Wage and hour exposure is created by systems configured once and never tested, not by decisions anyone made to underpay. The classifications were set when the roles were created, the payroll system was configured at implementation, and the rounding rule has run untouched for six years. Meanwhile the exposure compounds across the whole job classification, doubles through liquidated damages, and extends a third year on a willfulness finding. This toolkit builds and tests the program: classifying correctly and documenting close calls, configuring the regular rate so overtime is right when a bonus is paid, capturing hours including remote and pre-shift work, handling contractors and joint employment, layering state requirements, running the self-audit, and responding to a Department of Labor investigation or a collective action when one arrives.
Anti-Kickback and Stark Law Compliance Checklist: A Practical Checklist
Nearly every arrangement that gets a healthcare organization in trouble was reviewed by someone who concluded it was fine, and failed on a detail: an expired agreement under which payments continued, a missing signature, per-click rent, compensation stacked across four separate agreements, or services nobody documented. This checklist works arrangement by arrangement rather than by legal theory. It starts by building a complete inventory of every financial relationship with a referral source, then applies the Stark exception analysis and the Anti-Kickback safe harbor analysis to each, tests fair market value and commercial reasonableness, and checks the operational controls that keep a compliant arrangement compliant. Later phases cover the monitoring calendar, exclusion screening, and what to do when a problem is found, including the choice between disclosure paths.
Drafting a Trademark Cease-and-Desist Letter
A cease-and-desist letter is often the first and most consequential move a brand owner makes to stop trademark infringement, and a well-drafted one can resolve a dispute in a single envelope. This guide walks through the full strategy: clearing your own rights before you accuse anyone, honestly assessing likelihood of confusion under the multi-factor circuit tests, choosing the right tone, and building the letter section by section. It explains the serious traps that turn a routine enforcement letter into a lawsuit you did not want, including declaratory-judgment jeopardy under MedImmune v. Genentech, the first-to-file race to the courthouse, and the reputational blowback of "trademark bullying" and the Streisand effect. A complete model letter outline is included, along with guidance on deadlines, reservations of rights, the remedies the Lanham Act actually authorizes, settlement and coexistence options, and when to skip the letter and sue. The article is written for brand owners, in-house teams, and counsel alike. It closes with a detailed FAQ and practical takeaways.
Data Minimization and Avoiding the Over-Retention of Personal Information
Data minimization and storage limitation are the twin privacy principles that tell organizations to collect only the personal information they actually need and to keep it only as long as they actually need it. This guide explains where those duties come from—GDPR Article 5, the CCPA as amended by the CPRA, the FTC's expanding enforcement posture, and sectoral laws like GLBA, HIPAA, and the FCRA—and why "we might need it someday" is no longer a defensible reason to hoard data. It walks through the real-world costs of over-retention, from larger breaches and bigger fines to crushing e-discovery bills, and then lays out a practical, step-by-step program: data mapping, retention schedules, classification, defensible deletion, de-identification, and privacy by design. Worked examples and a FAQ translate the law into operational decisions a business can actually make. The throughline is simple: the data you never collected, and the data you safely deleted, cannot be breached, subpoenaed, or fined.
Transportation and Logistics Law: The Carmack Amendment, Broker Liability, and FMCSA Compliance
Freight moves under a body of law almost none of it borrowed from ordinary commercial practice. A cargo claim against a motor carrier is governed by a federal statute that preempts state law, imposes near-strict liability with four narrow defenses, and lets the carrier cap its exposure at a fraction of the shipment's value if it followed the right procedure. A freight broker occupies a different position entirely and faces a growing body of negligent selection litigation that the circuits have not resolved. This article covers the Carmack Amendment claim and defense framework, how brokers and forwarders differ from carriers and why it matters, the FMCSA safety regime that drives both compliance and personal injury exposure, owner-operator classification and the truth-in-leasing rules, and the parallel regimes governing ocean and air.
Nonparty Discovery Toolkit: Subpoenas, Third-Party Records, and Privilege
Nonparty discovery is the only place in the federal rules where a litigant's need for evidence is balanced against the interests of someone with no stake in the case, and the balance is unusually protective: a written objection shifts the burden of going forward, significant expense must be shifted, and the issuing lawyer carries an affirmative and sanctionable duty of restraint. This toolkit runs the process from both sides—issuing a subpoena that will actually produce documents, and responding to one without spending more than necessary—and covers the sector-specific statutes that override Rule 45 entirely for communications providers, health care providers, financial institutions, and government agencies. It works from the issuing lawyer's side and the recipient's side in parallel, then addresses privilege, cost-shifting, and the statutes that bar production outright. A separate stage covers the statutes that bar production outright regardless of how the subpoena is worded.
Force Majeure Notice Checklist: A Practical Checklist
A force majeure claim is won or lost on the notice and the record, not on the doctrine. Notice provisions are treated as conditions to relief, the deadlines are short, and the party claiming excuse bears the burden of showing that the enumerated event actually caused the failure and that it mitigated. This checklist covers the first forty-eight hours—read the notice provision before the force majeure clause, identify precisely which obligations are affected, and send a compliant notice—then the weeks that follow, where visible mitigation, a defensible allocation methodology among customers, and a contemporaneous file determine whether the claim survives. It also covers the response when a counterparty declares force majeure on you.
Damage Statistics: Arbitration
This guide explains how money actually moves in arbitration: what damages an arbitrator may award, why punitive damages are available but easily contracted away, and why the number an arbitrator writes is so much harder to undo than a jury verdict. It walks through the compensatory measures arbitrators apply, the special rules for punitive and exemplary damages after Mastrobuono v. Shearson, interest, and attorney's-fee shifting. It then turns to the back end of the process: confirmation and the famously narrow vacatur grounds of the Federal Arbitration Act, Hall Street Associates v. Mattel, the contested "manifest disregard" doctrine, and cross-border enforcement under the New York Convention. Throughout, it treats published "damage statistics" honestly, explaining what the available AAA, JAMS, and academic data can and cannot tell you, and why no one can responsibly quote a precise national average. It closes with worked hypotheticals, a practitioner's checklist mindset, an FAQ, and links to related mclaw.io resources.
How to Read a Patent: Claims, Specification, and Prosecution History
A patent is a legal instrument disguised as a technical document, and almost everyone who picks one up reads it in the wrong order. This article teaches the right order. It walks through the front page and what each numbered field actually tells you, including the priority chain that fixes the effective filing date and the term adjustments that determine when the patent expires. It then explains the specification and the disclosure requirements of section 112, and turns to the part that matters most: the claims. It covers how a claim is structured, what the preamble and the transitional phrase do, the enormous difference between comprising and consisting of, how independent and dependent claims relate, and how to build a claim chart element by element. A long section explains claim construction under Phillips v. AWH, the hierarchy of intrinsic and extrinsic evidence, why the prosecution history often decides the case, and how prosecution history estoppel narrows what a patent can reach. It closes with means-plus-function claiming, indefiniteness after Nautilus, a worked reading of a hypothetical patent, a reading checklist, an FAQ, and related reading.