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.

Real EstateResidential Finance

Mortgage Default and Loss Mitigation Checklist: A Practical Checklist

This checklist runs a mortgage default from the first missed payment to resolution, in the order the clock requires. It begins with the four facts that determine every later decision, then works the free administrative tools that produce the loan file and create a written record, the loss mitigation application that must be complete to trigger federal anti-dual-tracking protection, the fee and escrow audit that frequently reduces the arrears, and the defense review that identifies whether a real procedural defect exists. It includes separate tracks for judicial and nonjudicial states, a document inventory, and an exit checklist for homeowners who cannot keep the property.

Casey Scott McKaySeptember 11, 20259 min read

LitigationCivil Procedure

Statutes of Limitations, Accrual, and Tolling: The Clock That Ends Most Claims

More claims die on the calendar than on the merits, and the reason is rarely that a lawyer forgot a date. It is that accrual is harder than it looks, the applicable period is often not the obvious one, and the doctrines that stop the clock are narrower than practitioners assume. This article works through when a claim accrues under the injury rule and the discovery rule, the difference between a statute of limitations and a statute of repose and why that distinction defeats tolling arguments, the continuing violation doctrine and its limits after Morgan, and the tolling mechanisms that actually work — equitable tolling, equitable estoppel, class action tolling, statutory suspension, and relation back. It closes with choice-of-law problems, contractual limitations periods, and a practical diary discipline for a portfolio of claims.

Casey Scott McKaySeptember 10, 202525 min read

CriminalConstitutional

Search and Seizure Toolkit: Suppression Motions, Consent, and Warrant Challenges

A working kit for litigating a search. Section A is an exception matrix mapping each warrantless search justification to what the government must prove and where it typically fails. Section B holds a standing and burden analysis worksheet and an encounter timeline worksheet built from objective sources. Section C holds motion templates for each theory: unlawful stop, unlawful extension, invalid consent, vehicle search after Gant, device search after Riley, curtilage after Jardines, and a Franks challenge with an excision analysis. Section D holds an officer cross examination outline. Section E holds letters: preservation, footage request, return of property, and a forfeiture claim. Section F is a state constitution research plan. Section G collects the primary authorities.

Casey Scott McKaySeptember 8, 202516 min read

LitigationAppeals

Appellate Record and Brief Checklist: A Practical Checklist

Appeals are won and lost on two things that have nothing to do with persuasive writing: whether the error was preserved below, and whether the standard of review permits the court to do anything about it. A brilliant brief attacking a discretionary ruling reviewed for abuse of discretion, on an issue raised for the first time on appeal, is a brief that loses. This checklist runs the appeal in sequence: the jurisdictional deadline and what tolls it, the preservation review that determines which issues survive, the standard of review that determines which are worth raising, assembling the record and the appendix, structuring and writing the brief to the court's rules, and the post-argument steps. It ends with the recurring defects that draw the court's attention away from the merits.

Casey Scott McKaySeptember 8, 202511 min read

TechnologyContract

Navigating the Legal Landscape of Agile Software Development

Agile and Scrum development build software in short iterative cycles instead of against a fixed, up-front specification, and that single change breaks most of the assumptions baked into a traditional fixed-scope, fixed-price software contract. This article explains, for lawyers and non-lawyers alike, why fixed-scope contracting clashes with iterative development and how to structure Agile agreements instead, using time-and-materials, capped T&M, and sprint-based statements of work tied to a product backlog and a contractually defined product owner. It covers the doctrinal backdrop (substantial performance, UCC acceptance and perfect tender, failure of essential purpose), acceptance criteria and the "definition of done," change management without formal change orders, intellectual property ownership under the work-made-for-hire doctrine of 17 U.S.C. 101 versus written assignment and implied license, open-source and third-party compliance, warranties and limitation of liability, data security and privacy, the special problems of Agile in regulated and government settings, performance metrics and service levels, emerging frontiers such as AI-assisted development and smart-contract automation, and practical dispute-avoidance strategies. It also situates Scrum among its sibling frameworks — Kanban, Extreme Programming, and Lean — and the scaled approaches used on multi-vendor programs. Worked contract scenarios with invented parties, and sample clause language, illustrate each issue. The goal is a contract as adaptive as the methodology it governs while still protecting both customer and developer.

Casey Scott McKaySeptember 7, 202564 min read

Family LawCustody

Child Custody and Parenting Time: Best Interests, Relocation, and Modification

Custody law asks a court to make a prospective judgment about a child's welfare using a standard — the best interests of the child — that is deliberately open-ended and correspondingly hard to appeal. The practical architecture is more concrete than the standard suggests: jurisdiction is fixed by a uniform act with rigid priority rules, most states now presume some form of joint legal custody, and the parenting plan that results is a detailed operating document rather than a label. Modification and relocation are the two proceedings that recur for years after the original order, and both are governed by thresholds that exist to discourage relitigation. This article covers jurisdiction, the best interests factors and how they are actually proved, the professionals courts rely on, relocation and modification standards, and enforcement.

Casey Scott McKaySeptember 6, 202525 min read

Intellectual PropertyPatent

Freedom-to-Operate Search: A Practical Checklist

A company that launches a product reading on a valid, in-force patent risks injunctions, ruinous damages, and trebled awards for willful infringement. This checklist walks the entire freedom-to-operate (FTO) workflow before launch: defining exactly what you are clearing, searching the patent landscape across USPTO, Espacenet, PATENTSCOPE, and commercial databases, triaging hundreds of hits down to the dangerous few, reading and construing claims, building claim charts, assessing literal infringement and the doctrine of equivalents, evaluating validity defenses, confirming term and status, weighing an opinion of counsel against willfulness exposure after Halo and § 298, and choosing among design-arounds, licensing, and IPR. It distinguishes FTO from patentability, flags the all-elements rule and prosecution-history estoppel, and explains why documentation is the evidentiary backbone of a good-faith story. Use it to bring a product to market with informed—if never absolute—confidence.

Casey Scott McKaySeptember 5, 202511 min read

Intellectual PropertyTrade Secret

Drafting a Nondisclosure Agreement Checklist: A Practical Checklist

Non-disclosure agreements are the most common contract in commercial life and among the most carelessly drafted. This checklist walks a drafter through every load-bearing provision of an enforceable NDA: choosing mutual versus one-way structure, defining confidential information through a layered marking mechanism, pairing a non-use covenant with the non-disclosure covenant, stating the standard exclusions, scoping permitted uses, setting term and survival with perpetual protection for trade secrets, including the easily-forgotten DTSA Section 1833(b) whistleblower-immunity notice (18 U.S.C. § 1833(b)), and handling compelled disclosure, return of materials, remedies, choice of law, and the technology-specific problems of residual knowledge and reverse engineering. Each item is paired with the reason it matters and the drafting trap it avoids, drawn from the case law that decides NDA disputes. The goal is an agreement that protects what matters rather than merely appearing to.

Casey Scott McKaySeptember 4, 20259 min read

TechnologyEducation

Education Law for Schools and Edtech: FERPA, Title IX, and Section 504

Schools and the companies that sell to them operate under a set of statutes that were written decades apart, overlap unevenly, and are enforced by agencies with very different tools. A district can be simultaneously a FERPA-covered educational agency, a Title IX recipient, a Section 504 and IDEA obligor, a state actor subject to the First and Fourth Amendments, and a customer whose vendor contracts determine whether it has just disclosed student data unlawfully. This article works through each regime in the order it usually arises: what FERPA protects and how the school official exception makes most edtech lawful, how COPPA and state student privacy statutes reach vendors directly, what Title IX now requires procedurally, how Section 504 and the IDEA differ, and where constitutional limits constrain discipline, speech, and searches. It closes with the constitutional limits on discipline, speech, and searches that apply to public schools as state actors and to no one else.

Casey Scott McKaySeptember 1, 202525 min read

Intellectual Property and TechnologyCopyright

Open Source Licensing Landmines in Enterprise Software Development

More than 96% of commercial codebases contain open source components, yet most companies have no idea what those components obligate them to do until an acquisition, an IPO, or a demand letter forces the question. This article maps the open source licensing landscape and its hidden traps, following a fictional enterprise that discovers GPL code buried in its flagship product six weeks before a deal closes. It explains how open source licenses weaponize copyright, why violating one is potential infringement rather than mere breach under Jacobsen v. Katzer, and how the permissive-versus-copyleft taxonomy and the strong/weak/network copyleft spectrum actually work. It works through the derivative-work and linking debate in concrete technical terms, the license-incompatibility traps that surface in diligence, software composition analysis and SBOMs, and a fast-moving enforcement landscape—SFC v. Vizio's third-party-beneficiary theory, Neo4j v. PureThink on adding restrictions, European damages awards, and the relicensing wave (Elastic, HashiCorp, the BSL and SSPL). It closes with the AI-generated-code provenance problem and a practical audit framework. The throughline: the cheapest moment to defuse an open source landmine is before anyone steps on it.

Casey Scott McKayAugust 27, 202550 min read

Intellectual PropertyTrademark

The Intricate World of Trade Dress Protection: Balancing Brand Identity and Functional Design

Trade dress protects the total look and feel of a product or business—its packaging, configuration, color, décor, and overall image—when those features identify a commercial source. This practical primer explains what trade dress is, walks through the three elements of a claim (distinctiveness, non-functionality, and likelihood of confusion), and clarifies the pivotal rule of Wal-Mart Stores, Inc. v. Samara Bros. that product-design trade dress can never be inherently distinctive and always requires secondary meaning. It examines the utilitarian and aesthetic functionality doctrines under Inwood, Qualitex, and TrafFix; the Morton-Norwich proof factors; and the mechanics of registering trade dress on the Principal Register at the USPTO. It also covers enforcement, dilution, defenses, and remedies, and works through the practical strategy a brand owner should follow from product launch to litigation. Famous examples—the Coca-Cola contour bottle, the Hermès Birkin bag, the Apple store layout, and the Louboutin red sole—and the Supreme Court's 2023 Jack Daniel's decision illustrate how the doctrine plays out in the real world.

Casey Scott McKayAugust 26, 202548 min read

CriminalConstitutional

Search and Seizure Response Checklist: A Practical Checklist

A two-part checklist. The encounter half covers the four sentences that preserve every argument, the tier analysis, traffic stop and home door procedures, phone and device handling, and recording. The aftermath half covers the same day written account, the video preservation demand that must go out before retention cycles run, property recovery and the short civil forfeiture deadline, complaints that build a record, and then the litigation sequence: standing, burden allocation, structuring a motion around a single moment, attacking a warrant on staleness, particularity, execution, and Franks grounds, and anticipating good faith. A separate section covers a business served with a search warrant.

Casey Scott McKayAugust 25, 20258 min read