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.

LitigationAppellate Practice

Certiorari Petitions and Rehearing En Banc: The Last Two Doors in Federal Appellate Practice

Certiorari and rehearing en banc are the two discretionary doors at the end of a federal appeal, and both are opened by considerations that have little to do with whether the decision below was wrong. This article explains what actually moves the Supreme Court — a genuine, entrenched, outcome-determinative conflict among the courts of appeals or state courts of last resort, on an important and recurring question, in a case that presents it cleanly — and why vehicle problems defeat more petitions than weak merits do. It covers the anatomy of a petition, from the question presented through the reasons for granting, the brief in opposition and when a waiver is the better choice, and the signals that a petition is being taken seriously. Separate sections address rehearing en banc under FRAP 35 and panel rehearing under FRAP 40, the intra-circuit conflict and exceptional importance grounds, and the coordination of amicus support. Worked examples follow a circuit split petition, a defensive opposition, and an en banc campaign.

Casey Scott McKaySeptember 5, 202628 min read

LitigationAppellate Practice

Certiorari and En Banc Petition Checklist

This checklist runs a discretionary review petition from the decision whether to file through disposition. It opens with the four threshold questions and the case selection that determines everything, then the conflict research and the vehicle analysis that must be completed before drafting begins. Drafting sections cover the question presented, the statement, and the reasons for granting in the order the Court reads them, with the merits argument in its proper subordinate place. Respondent sections cover the waiver decision and a brief in opposition that leads with vehicle problems. Later sections cover amicus coordination and its deadline, the rehearing en banc petition with its Rule 35 certificate and intra-circuit conflict ground, panel rehearing as a narrowing tool, appendix and filing mechanics, the deadline calendar, and how to read the signals after distribution.

Casey Scott McKaySeptember 5, 20267 min read

CorporateMergers and Acquisitions

Carve-Out Transactions and Transition Services: Separating a Business That Was Never Separate

A carve-out sells a business that has never existed as a business, and the transaction's real work is manufacturing one. This article explains what separation actually requires: identifying the perimeter, untangling shared contracts and shared intellectual property, moving employees who sit on a payroll that will not move with them, and rebuilding the systems that ran on the parent's infrastructure. It works through the anti-assignment problem that governs shared contracts and licenses, the carve-out financial statements that no auditor will call a business, and the stranded cost problem that determines whether the seller benefits at all. The second half covers the transition services agreement in detail — scope, pricing, duration, service levels, exit, and the reverse TSA — and the day-one readiness discipline that separates good separations from expensive ones.

Casey Scott McKaySeptember 5, 202629 min read

CorporateMergers and Acquisitions

Carve-Out Toolkit: Separation Plans, TSA Schedules, and Shared Contract Allocation

This toolkit supplies the working documents of a carve-out: an obligation and perimeter definition framework, a shared contract allocation matrix with four treatment paths, consent request letters, and TSA schedules written the way service owners should write them. It provides clause language for wrong pockets, non-obtained consents, transitional trademark licensing with quality control, and TSA exit and migration obligations, in seller, buyer, and middle-position variants. It closes with a standalone and stranded cost worksheet, an employee transfer matrix, a day-one readiness dashboard, a separation management office charter, and a TSA exit tracker. Adapt everything to the transaction.

Casey Scott McKaySeptember 5, 202619 min read

CorporateMergers and Acquisitions

Carve-Out Separation Checklist: A Practical Checklist

This checklist runs a carve-out from seller readiness through TSA exit. It begins with the pre-process work that determines everything downstream — perimeter, carve-out financials, standalone and stranded cost models, and the contract and license inventory that constrains the structure. It then covers structure selection and its tax, license, employment, and regulatory consequences, the four-bucket contract triage, IP assignment formalities, the employee workstream in both transfer regimes, and IT separation. The last sections cover day-one readiness function by function, the purchase agreement provisions specific to carve-outs, and the first two years of TSA administration and exit. Items that most often cause failure are flagged.

Casey Scott McKaySeptember 5, 202610 min read

CorporateAntitrust

Cartel Defense Toolkit: Leniency Applications, Hold Notices, and Follow-On Defense

This toolkit supplies the documents a criminal antitrust matter needs, on the compressed timeline the leniency race imposes. It opens with a signal assessment and a dawn raid protocol trained down to reception, a litigation hold aimed at the sources cartel investigations actually search — calendars, expense records, phone logs, and messaging platforms — and a marker decision memorandum designed to be approved in a day. It provides a global filing tracker, an Upjohn script with a separate-counsel referral point, joint defense agreement terms with an exit provision, and grand jury witness preparation materials. Later tools cover a plea term sheet built around the volume of affected commerce, an ACPERA cooperation log, a trade association protocol, an information exchange audit, and a compliance training outline aimed at where cartels actually form. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202618 min read

LitigationClass Actions

CAFA Toolkit: Notices of Removal, Jurisdictional Evidence, and Exception Briefing

This toolkit supplies the working documents of a CAFA removal and the remand fight that follows. It opens with a removal calendar keyed to formal service and the ten-day appellate application that gets missed, a complaint intake worksheet that reads the pleading for removability, and a removal decision memorandum that forces the strategic call to be made explicitly. It provides an annotated notice of removal template built around plausible pleading rather than premature proof, a citizenship allegation reference, an amount in controversy worksheet, and a jurisdictional declaration that survives contest. Later tools cover a remand opposition outline organized around the burden allocation, local controversy and home state briefing frameworks, targeted jurisdictional discovery requests, a mass action analysis worksheet, and a section 1453(c) petition outline. Each item is annotated with the failure it prevents.

Casey Scott McKaySeptember 5, 202619 min read

LitigationClass Actions

CAFA Removal and Remand Checklist: A Practical Checklist

This checklist runs a CAFA removal and the remand fight that follows, by the calendar, from both sides. It opens with the day-one deadlines including the ten-day appellate application that is missed most often, then the six intake questions that determine removability and the exception exposure that shapes everything after. It covers drafting a notice that pleads plausibly rather than proving prematurely, the filing mechanics that produce avoidable remands, and the amount in controversy declaration built for a contested motion. Later sections handle the mandatory and discretionary exceptions with the burden allocation stated, jurisdictional discovery, mass actions and their exclusions, the second removal window, and what changes once the case stays in federal court. Closing sections give the plaintiff's checklist, the alternative removal statutes, and the fee exposure for getting it wrong. Every item is written so a "no" tells you what to do next.

Casey Scott McKaySeptember 5, 202612 min read

LitigationClass Actions

CAFA Jurisdiction and Class Action Removal: Amount in Controversy, Exceptions, and Mass Actions

The Class Action Fairness Act rewrote the jurisdictional rules for class litigation, and almost every fight about it is a fight about one of four things: the amount in controversy, one of the exceptions, whether the case is a mass action, and whether the removal was timely. This article works through the elements of CAFA jurisdiction and the removal machinery in section 1453, which strips away the forum defendant rule, the unanimity requirement, and the one-year limit. It then covers the amount in controversy after Dart Cherokee and Standard Fire, the mandatory and discretionary exceptions and who bears the burden on each, the carve-outs for securities and corporate governance claims, the mass action provisions and their peculiar limits, and the discretionary appellate review that makes a remand order reviewable when it otherwise would not be. A running example follows one defendant through a removal and a remand fight.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyPatents

Building and Managing a Global Patent Portfolio: A Practical Guide

This guide walks through building and running a patent portfolio that spans several countries, from inventory to pruning, in the order the work actually happens. It starts with the asset register almost nobody has, moves to the jurisdiction strategy that should govern every later decision, and then covers invention capture, filing policy and decision gates, the priority year, the PCT phase, and national phase entry. Later steps address managing foreign associates, budgeting annuities that arrive years after anyone remembers approving them, running an annual portfolio review with real pruning authority, and using the portfolio for licensing, diligence, and enforcement. A final step covers integrating an acquired portfolio and surviving a firm transition, which is where most established portfolios lose cases. Each step names who does the work, what it costs, and the specific failure it prevents.

Casey Scott McKaySeptember 5, 202628 min read

CorporateSecurities and Disclosure

Building a Sustainability Disclosure Program: A Practical Guide

This guide builds a sustainability disclosure program from nothing, in the order the work has to happen. It starts with the obligation map — which regimes actually apply, and what each one demands — then constructs the greenhouse gas inventory that every other deliverable derives from, including the boundary and methodology decisions that are hard to change later. It covers the materiality assessment, the physical and transition risk work, target setting that will survive scrutiny, and the data controls and assurance readiness that turn a spreadsheet into a reportable figure. The last sections cover review, publication, and the annual cycle, including the website sweep and contractual deliverable calendar that most programs omit.

Casey Scott McKaySeptember 5, 202628 min read

LitigationInternational Arbitration

Bringing or Defending a Treaty Claim: A Practical Guide

An investor-state arbitration runs four to six years and costs several million dollars, and the decisions that determine its outcome are made in the first six months. This guide runs the process from both sides. For the claimant it covers the pre-filing assessment, the notice of dispute and the cooling-off period where a meaningful share of cases settle, the treaty analysis, arbitrator selection, and the evidentiary case that must be built from documents the state controls. For the respondent state it covers the jurisdictional objections and bifurcation strategy that end most successful defences, the regulatory framing of the challenged measure, and the quantum attack where the money actually is. It closes with annulment, enforcement, and the funding and insurance options that change the economics.

Casey Scott McKaySeptember 5, 202628 min read