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.

LitigationAntitrust Litigation

Antitrust for Technology Companies: Monopolization, Platform Conduct, and the IP-Antitrust Interface

Technology companies operate in markets with network effects, near-zero marginal costs, and winner-take-most dynamics, which produce high concentration through ordinary competitive success and also create powerful incentives to keep competitors out. Antitrust law is the body of doctrine that tries to distinguish between the two, and it has been unusually active in the technology sector for the first time since the Microsoft case. This article explains the framework a technology lawyer actually needs: the elements of monopolization and attempted monopolization under Section 2, why market definition decides most cases and why it is unusually hard for platforms after Ohio v. American Express, the specific conduct theories that recur in technology disputes including exclusive dealing, tying, self-preferencing, refusals to deal and interoperability, and predatory pricing, and the rule of reason framework that governs agreements under Section 1. It covers the major recent cases, the merger review regime and the 2023 guidelines, and the interface between intellectual property and antitrust, including standard essential patents and FRAND commitments, patent settlements after Actavis, licensing restrictions, and refusals to license. It closes with a compliance program, a worked example, an FAQ, and related reading.

Casey Scott McKayOctober 2, 202527 min read

Legal ResourcesLegal Research

Legal Research Guide: A Beginner's Guide to Legal Research

Legal research is the disciplined art of finding the law that governs a problem and confirming it is still good. This beginner's guide explains the difference between primary and secondary authority, between mandatory and persuasive authority, and how the hierarchy of legal sources fits together—constitutions, statutes, regulations, and cases. It teaches you to decode a legal citation, to choose between free tools (CourtListener, Google Scholar, govinfo, Cornell's Legal Information Institute) and paid platforms (Westlaw and Lexis), and to use secondary sources like treatises, American Law Reports, and law reviews to get oriented fast. It lays out a repeatable, step-by-step research process and explains how to verify that a case is still "good law" using a citator such as Shepard's or KeyCite. Whether you are a law student, a self-represented litigant, a paralegal, or simply a curious citizen, you will leave knowing how to start, where to look, and when to stop.

Casey Scott McKaySeptember 30, 202537 min read

Intellectual PropertyTrade Secret

Trade Secret Cybersecurity Incident Response Checklist: A Practical Checklist

When a breach hits, the incident-response machine almost always points itself at personal data and the notification clock, while the theft of trade secrets — often far more financially devastating — goes unrecognized until the window for protective action has closed. This checklist folds intellectual property protection into incident response across three time horizons. Before the breach: a current crown-jewels inventory and the right contractual notices. During the breach: a triage question that flags an IP incident, parallel containment and preservation, forensic documentation built to litigation rather than regulatory standards, and a privilege structure that avoids the trap that snared Capital One. After the breach: preserving trade secret status through prompt visible action, pursuing or documenting DTSA remedies, coordinating notifications to manage the disclosure paradox, and protecting whatever insurance coverage exists. Each step is paired with the reason it matters and the case law that makes the stakes concrete.

Casey Scott McKaySeptember 25, 20259 min read

Intellectual PropertyTrademark

Trademark Statement of Use Checklist: A Practical Checklist

A checklist for completing an intent-to-use trademark application by filing a Statement of Use after the Notice of Allowance, including the timeline math for extensions of time. It covers when to file an SOU versus an Amendment to Allege Use, the per-class requirements (fee, specimen, dates of first use, verified declaration), the six-month extension cadence capped at 36 months from the Notice of Allowance, the request-to-divide option when use is partial, and how all of it preserves the constructive-use priority that dates back to the application filing date under 15 U.S.C. 1057(c). WHY notes, trap warnings, a common-mistakes list, and primary authority are included. Educational, not legal advice.

Casey Scott McKaySeptember 22, 20258 min read

Intellectual PropertyPatent

The Evolution of Design Patent Functionality: Clarifying the Muddle

Functionality in design patent law is two doctrines wearing one name, and confusing them is the source of most of the "muddle." The first is a validity rule: under 35 U.S.C. § 171 a design is unprotectable only if its appearance, judged for the article as a whole, is "dictated solely by function." The second is a claim-construction and infringement question: how individual functional features within a valid design affect the scope of what the patent covers. This article traces the doctrine from the early "dictated by function" test through the modern multi-factor inquiry of Berry Sterling and PHG Technologies, and through the Federal Circuit's course correction in Ethicon Endo-Surgery v. Covidien and Sport Dimension v. Coleman away from "factoring out" functional elements. It examines Automotive Body Parts Ass'n v. Ford and the rejection of an "aesthetic functionality" defense, connects functionality to the "article of manufacture" damages question of Samsung v. Apple, situates the doctrine after the en banc LKQ decision on obviousness, and offers worked examples plus prosecution and litigation guidance.

Casey Scott McKaySeptember 22, 202543 min read

CriminalRecord Relief

Expungement, Record Sealing, and Restoring Rights After a Conviction

A criminal record follows a person into housing, employment, licensing, education, credit, and family court, and most of the consequences are imposed not by a judge but by private decisionmakers reading a database. This article explains the difference between expungement, sealing, set aside, and a certificate of rehabilitation, why automatic clean slate laws are changing the field faster than petitions ever did, what relief exists for arrests that never led to charges, how the FCRA limits what background check companies may report and how to dispute an inaccurate report, what expungement does and does not do for firearm rights, voting, occupational licensing, and immigration, and how federal relief differs from and is narrower than state relief.

Casey Scott McKaySeptember 22, 202528 min read

Intellectual PropertyTrademark

How to File a UDRP Complaint for Domain Name Disputes

A complete, practitioner-grade guide to recovering a domain name from a cybersquatter through the Uniform Domain-Name Dispute-Resolution Policy. It walks through the three required elements—identical or confusingly similar, no rights or legitimate interests, and bad-faith registration and use—anchored in the WIPO Overview 3.0 and leading panel decisions such as Telstra. It explains provider selection (WIPO, FORUM, and the other ICANN-accredited centers), complaint drafting under the UDRP Rules, the registrar lock, mutual-jurisdiction statements, GDPR-redacted WHOIS, the respondent's defenses, and reverse domain name hijacking. A dedicated section contrasts the UDRP with federal litigation under the ACPA, 15 U.S.C. § 1125(d), including its nine bad-faith factors, statutory damages, and in rem jurisdiction. Written for trademark owners recovering domains and the attorneys who represent them. Not legal advice.

Casey Scott McKaySeptember 20, 202537 min read

CorporateSecurities

The Complete Guide to Adding New Investors After Your Seed Round

This guide explains the legal and financial mechanics of bringing new investors onto a startup's capitalization table after an initial seed round, with the focus squarely on the first priced equity financing—the Series Seed or Series A—that typically follows. It walks through how SAFEs and convertible notes convert at the priced round, the dilution arithmetic behind pre-money and post-money valuation and the notorious "pre-money option pool shuffle," and presents a fully worked, step-by-step cap-table example for a hypothetical company. It surveys the standardized deal documents (the NVCA model documents and the lighter Series Seed forms) and the core preferred-stock terms a new investor will negotiate—liquidation preferences, dividends and conversion, preemptive and pro-rata rights, rights of first refusal and co-sale, information and registration rights, board seats, protective provisions, drag-along, and anti-dilution protection (broad-based weighted average versus full ratchet). It addresses Regulation D compliance for the new issuance, amending the certificate of incorporation under the DGCL, the Section 409A revaluation, and the practical work of securing existing-investor consents and waivers. A dedicated section examines down rounds and the fiduciary-duty scrutiny insider-led financings draw under Delaware's entire-fairness standard. The article is written so that founders, investors, and their counsel can all follow every moving part of a first priced round.

Casey Scott McKaySeptember 19, 202559 min read

EnvironmentalPermitting

Environmental Permitting and Compliance: The Clean Air Act, the Clean Water Act, and NEPA

Environmental compliance runs on permits, and a permit is both a shield and a trap: operating within its terms is a complete defense to most enforcement, and operating outside them is a strict liability violation regardless of whether any harm occurred. The two dominant programs — the Clean Air Act and the Clean Water Act — share an architecture in which the federal government sets standards, states administer permits under delegated authority, and private citizens may sue to enforce. NEPA operates differently, imposing a procedural obligation on federal agencies to study environmental effects before acting, and it has become the principal battleground over infrastructure and energy projects. This article covers the permitting programs a facility actually encounters, the compliance obligations that follow, the enforcement architecture including citizen suits, and the diligence and disclosure that transactions require.

Casey Scott McKaySeptember 15, 202525 min read

CommercialAdvertising and Marketing

Running a Legal Sweepstakes or Contest: A Practical Guide

This guide takes a promotion from concept to closeout. It works through the design decisions that determine the compliance profile, how to build an alternative method of entry that actually works, how to draft official rules and the abbreviated rules that appear in advertising, when registration and bonding are required and how to avoid them, the launch review that catches the errors regulators notice, and the administration that follows: winner selection, verification, affidavits, prize delivery, tax reporting, and records. It includes a timeline, a budget, and the provisions that matter when something goes wrong.

Casey Scott McKaySeptember 14, 202527 min read

TechnologyAdvertising and Marketing

CAN-SPAM Email Marketing Compliance Checklist: A Practical Checklist

The CAN-SPAM Act (15 U.S.C. 7701-7713) and the FTC's rule (16 C.F.R. Part 316) do not ban unsolicited commercial email; they impose a disclosure-and-opt-out code of conduct on every commercial message, bulk or single, B2B or B2C. This checklist operationalizes that code: classify each message under the primary-purpose test, keep headers and subject lines honest, label commercial mail as an ad, include a valid physical postal address, provide a one-step opt-out kept live for 30 days, honor opt-outs within 10 business days forever, never sell or transfer opt-out addresses, and maintain and scrub a central suppression list. It allocates sender/initiator liability (no contract can transfer it away), handles affiliate marketing and special content, and layers in the TCPA for texts and GDPR/CASL for international recipients. Each phase pairs checkboxes with the WHY and the traps, plus common mistakes, primary authority, and related mclaw.io resources. Verify the current per-email penalty at the FTC's latest adjustment notice.

Casey Scott McKaySeptember 14, 202510 min read

Intellectual PropertyPatent Litigation

Do You Have to Enforce Your Patent? Duty, Demand Letters, and the Cost of Doing Nothing

A patent owner has no legal duty to enforce a patent, and no duty to file suit after sending a cease and desist letter — unlike a trademark, a patent does not weaken, narrow, or lapse because infringement is tolerated. Never suing does not affect validity, but it steadily erodes the remedy: the six-year damages window under § 286 closes year by year, injunctive relief becomes harder under eBay, and licensing leverage drops. The genuine danger is the specific pattern of threatening and then going quiet, which supplies both elements of an equitable estoppel defense and can bar the entire claim, past and future, as it did in Aspex Eyewear after three years of silence and Radio Systems v. Lalor after four and a half. Meanwhile the letter itself hands the recipient a declaratory judgment vehicle, an unstarted IPR clock, and exposure under the bad-faith assertion statutes now on the books in 34 states. The practical rule: decide whether to litigate before you send the letter, and if you are not ready to file, preserve the position with a tolling agreement or documented follow-up rather than silence.

Casey Scott McKaySeptember 12, 202546 min read