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.
Trademark Consumer Survey Design: A Practical Checklist
A consumer survey is a scientific instrument, and in a trademark case it is only as good as its methodology. This checklist guides counsel and survey experts through designing a defensible confusion survey from the first decision to the final report: defining the correct universe for the theory of confusion, choosing the Eveready or Squirt format, drafting neutral screeners and questions, building a proper control to net out noise, administering double-blind under marketplace-realistic conditions, sizing the sample, coding objectively, and building the survey to survive a Daubert challenge under Rule 702. It also maps secondary-meaning, fame, and genericness (Teflon and Thermos) formats. WHY notes and traps accompany each phase. Survey design is fact-specific; consult a qualified survey expert and counsel.
Patent Damages: Reasonable Royalties, Lost Profits, Apportionment, and Enhancement
A patent is worth what a court will make an infringer pay for using it, which makes damages law the place where patent value is actually determined. This article explains the two paths to recovery under the damages statute—lost profits and reasonable royalty—and the doctrines that discipline each. It covers the Panduit framework for lost profits, the hypothetical negotiation and Georgia-Pacific factors that structure royalty analysis, and the apportionment rules that have reshaped royalty practice over the past fifteen years. It also addresses the limits that cut recovery independent of the merits: the marking requirement, the six-year damages window, and the gatekeeping courts apply to damages experts. It closes with enhancement for willfulness, exceptional-case fees, and the practical question of what a damages case is worth before it is filed.
Consumer Marketing Compliance Toolkit: TCPA, CAN-SPAM, Auto-Renewal, and Endorsements
Consumer marketing is regulated by five overlapping regimes that share one requirement—a record of what the consumer saw and agreed to—and that punish the same failure in different currencies: statutory damages per message, civil penalties per violation, class actions with a per-subscriber remedy, and an order that dictates product design for twenty years. This toolkit organizes them by channel and by function. It covers substantiation and the claims library, consent capture and suppression for calls and texts, email requirements, subscription enrollment and cancellation symmetry, endorsement disclosure and the fake reviews rule, pricing display, promotions, and the governance and records that make the whole program defensible. It closes with vendor and lead-source diligence, because most of the exposure in this area is created by someone the advertiser never dealt with directly.
Agency Proceeding and Judicial Review Checklist: A Practical Checklist
This checklist runs an administrative matter from the arrival of a decision through judicial review. It is organized as sequences: reading the decision, finding the deadline before anything else, locating the organic statute and agency regulations that supply your rights, filing public records requests as the substitute for discovery, building the administrative record, preserving objections including structural constitutional ones, preparing and trying a hearing, exhausting, and going to court. The threshold barriers that stop more challenges than the merits are flagged separately, as are the deadlines that are jurisdictional in many state schemes.
Claim Construction Toolkit: Charts, Briefs, Expert Declarations, and Hearing Materials
This toolkit collects the working documents a team actually produces during a claim construction phase, from the first intrinsic evidence index through the stipulated judgment that sets up an appeal. Each template is annotated with what it is for, who should own it, and the mistakes it is designed to prevent. The materials are deliberately generic as to technology so they can be adapted to mechanical, electrical, chemical, and software cases alike. They assume a district with local patent rules but note where practice varies. Use them as starting structures rather than forms; the value is in the discipline they impose, not the words.
Buying, Owning, and Transferring Firearms Lawfully: A Practical Guide
This guide is the compliance sequence for a lawful firearm owner. It covers how to determine your own eligibility before buying anything and why several prohibitors surprise people, how a dealer transfer actually works and how to complete the form accurately, what to do about a background check delay or denial, the interstate and private transfer rules, the registered-item process and the constructive possession trap, carry permits and the reciprocity check that must happen before every trip, transport and air travel, secure storage and theft reporting, what to do when a protective order or extreme risk order requires surrender, and the routes to restoration.
Claim Construction Checklist: A Practical Checklist
Claim construction rewards discipline more than brilliance, and most losses in the phase trace to a step that was skipped rather than an argument that was wrong. This checklist covers the full sequence: assembling the intrinsic evidence file, defining the person of ordinary skill, screening candidate terms for dispositive value, stress-testing every proposed construction against the prior art, preparing declarations and tutorials, and preserving the record for appeal. It is organized by phase so a team can work through it in order and use it as a status document. Each section ends with the specific failures that most often surface at the hearing.
Running a Clean Room Software Development Project: A Practical Guide
This guide explains, step by step, how to plan, staff, run, and document a clean-room software development project so that the resulting product can be defended against copyright, trade secret, and contract claims. It begins with the threshold decisions: whether a clean room is needed at all, what the compatibility objective is, and how the information about the target will be lawfully obtained. The core steps cover legal review of the target, license and terms-of-service restrictions, team selection and certification, physical and technical separation, the dirty team's investigation, writing a functional specification, gatekeeper review, clean-team implementation and questions, an AI coding tools policy, testing without contamination, records and privilege design, and closing the project. A timeline and cost-driver table, an extended worked example involving a robotics company building a compatible motion-controller driver, guidance for the interface owner evaluating a competitor's clean room, common mistakes, an FAQ, and takeaways close the guide.
Preparing for a Markman Hearing: A Practical Guide
A Markman hearing is the closest thing patent litigation has to a decisive battle, and it rewards preparation that begins months before the hearing date. This guide walks through the entire sequence in operational terms: building the intrinsic evidence file, defining the person of ordinary skill, selecting which terms to fight over, drafting constructions that survive contact with a judge, preparing expert declarations that add value rather than noise, building a technology tutorial, and arguing the hearing itself. It includes a working calendar, a division of labor for the team, and a set of mistakes that experienced practitioners see repeatedly. It ends with what to do in the first two weeks after the order issues, when the strategic options are widest and the clock is shortest.
First-Party Insurance Toolkit: Proof of Loss, Appraisal, Examinations, and Bad Faith Claims
This toolkit assembles the working papers of a first-party insurance claim: the policy request, claim diary and documentation index, mitigation expense log, an estimate comparison worksheet keyed to the line items insurers omit, contents inventory and additional living expenses templates, the proof of loss extension request and reservation language, the depreciation holdback demand, an appraisal demand and appraiser engagement, examination under oath preparation and objection language, a point-by-point denial response, the report production demand, a regulator complaint outline, a bad faith evidence index, and partial payment acceptance language.
Probate and Estate Administration: From Death to Final Distribution
When someone dies, what happens next is decided by a set of rules most families encounter exactly once. This article explains what probate actually is and what passes outside it, when a small estate affidavit or summary procedure avoids full administration, how a personal representative is appointed and what duties attach on appointment, how creditor claims are handled and why the notice period is the single most important deadline in the case, how intestate succession works when there is no will, what a surviving spouse can claim regardless of the will, how the estate is inventoried, valued, and taxed, and how the administration is closed with an accounting and final distribution.
Copyright Renewal and Termination Checklist: A Practical Checklist
For most of the twentieth century U.S. copyright ran on a two-term system, and a separate, non-waivable right lets authors and their heirs terminate old transfers and recapture rights decades later. This checklist serves two related tasks: determining whether a pre-1978 work is still protected or in the public domain (the renewal analysis) and exercising or preserving the termination-of-transfer rights under Sections 203 and 304. It walks through filing a renewal registration on Form RE, the automatic-renewal rule for 1964 to 1977 works, the foreign-restoration asterisk, identifying who holds the termination interest and the strict notice windows, and the derivative-works exception. Because deadlines here are unforgiving, treat this as an orientation and engage specialized counsel.