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.
Premises Liability for Property Owners and Businesses
Premises liability looks simple and is not. Whether a property owner owes a duty at all depends on how the visitor is classified in that state, whether the hazard was open and obvious, and whether the injury was caused by the property or by another person. Whether the owner breached that duty usually turns on a narrow evidentiary question—did it know or should it have known about the condition, and how long had it existed—which is decided by inspection records and video that either exist or do not. This article covers the classification systems and the modern trend away from them, how notice is actually proved and defeated, the mode of operation rule, negligent security claims for third-party criminal acts and the competing foreseeability tests, the allocation of responsibility between landlords, tenants, and contractors, and the evidence practices that decide these cases long before anyone files suit.
Remote Work Policy Checklist: A Practical Checklist
A remote work policy does two jobs. It sets expectations about how people work, which is a management question, and it controls where they work, which is a legal one—because an employee's physical work location determines the applicable employment law, the payroll registrations, the workers compensation coverage, and frequently the company's tax nexus. Most policies do the first job and skip the second. This checklist covers both: eligibility and approval, the approved work locations list and the reporting obligation that makes it enforceable, hours and timekeeping for non-exempt remote employees, expenses and equipment, home workspace safety and workers compensation, information security and monitoring, international work restrictions, and the acknowledgment and maintenance that keep the policy current.
Drafting Enforceable Non-Disclosure Agreements for Technology Transactions
Non-disclosure agreements are the most common contract in commercial life and among the most carelessly drafted, so that many protect far less than the parties assume—and some fail outright when a court finally reads them. This guide teaches how to draft NDAs that courts will actually enforce, following a fictional robotics startup as it shares its crown-jewel algorithm with a prospective partner. It works through every major provision—the definition of confidential information, the standard exclusions, the non-use versus non-disclosure distinction, marking, term and survival (with perpetual protection for trade secrets), compelled disclosure, return of materials, remedies and injunctive relief, and choice of law—explaining why each matters and where drafters go wrong. It gives particular attention to the technology industry's hardest problems: protecting source code, the residual-knowledge dilemma, reverse-engineering restrictions, and the often-overlooked DTSA Section 1833(b) whistleblower-immunity notice that can decide whether double damages and attorneys' fees are on the table. The goal is the conceptual framework and practical judgment to build agreements that protect what matters rather than merely appearing to.
Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges
This article explains how courts decide whether a text message, chat, direct message, or social media post is what its proponent says it is, and why the real fight is almost always about who typed the words. It traces the low Rule 901(a) threshold and the Rule 104(b) division of labor between judge and jury, the tools in Rule 901(b), and the 2017 self-authentication provisions in Rules 902(13) and 902(14), including why a platform's certificate proves the record but not the author. It tells the stories behind the leading cases, from Lorraine v. Markel and the Maryland Griffin line to Tienda, Vayner, Browne, Hassan, Barnes, and Lewisbey, and maps the remaining split. It then covers the hurdles that follow authentication: the best evidence rule for screenshots, layered hearsay, the 2023 amendment to Rule 106, metadata and forensic experts under amended Rule 702, the Stored Communications Act limits on getting content from providers, and spoliation of ephemeral messages under Rule 37(e). A section on fabricated messages and deepfakes describes the rulemaking proposals pending as of early 2026. An extended worked example, common mistakes, an FAQ, and takeaways close the article.
Section 112 Patent Review Checklist: A Practical Checklist
This checklist turns Section 112 of the Patent Act into phased tasks for three moments: before an application is filed, before a patent owner asserts a patent, and before an accused infringer commits to an invalidity position. Each task names its authority, including Amgen, Wands, Ariad, Nautilus, Williamson, and the Federal Circuit's decisions through October 2026. It covers classifying the claims, testing scope against disclosure, charting priority, auditing terms of degree, reviewing functional software language, and preserving issues through trial. Red flags mark the facts that have ended recent cases. It is meant to be printed and used at the desk.
Proving Acquired Distinctiveness and Defeating a Genericness Challenge: A Practical Guide
This guide walks step by step through the two fights that decide whether a word or design can be owned: proving that a descriptive term or product design has acquired distinctiveness under Section 2(f), and defeating (or bringing) a challenge that a term is generic. It starts with a one-page map of the statutes, rules, burdens, and leading cases, then moves chronologically through diagnosing the problem and the forum, fixing the genus and the relevant public, building the evidence file, deciding whether and how to run a survey, responding to a USPTO refusal, litigating before the Trademark Trial and Appeal Board, litigating in federal court, and protecting the result afterward. Each step identifies what to file, what the other side will do, and the decision points where cases are won or lost. A table of circuit differences, a cost and timeline chart, and an extended worked example (a medical device company defending QUICKSPLINT from office action through opposition) show how the pieces fit. The guide closes with common mistakes, frequently asked questions, and practical takeaways for owners and challengers alike.
Criminal Defense Intake and First Appearance Checklist: A Practical Checklist
This checklist covers the first thirty days of a criminal defense matter, where the leverage is concentrated and the evidence is perishable. It runs the intake and conflict screening, the immigration and licensing questions that must be answered before any plea discussion, the release package that determines whether the client waits at home or in custody, the preservation letters that must go out before video overwrites, the discovery and Brady demands, the criminal history audit, the suppression issue spotting from the police reports, and the speedy trial calculation. It closes with plea evaluation and sentencing mitigation checklists.
Copyright Notice: Form, Function, and Best Practices
A copyright notice is the familiar little line—© 2026 Acme Corp.—that tells the world who owns a creative work and when it was published. For works published in the United States after March 1, 1989, notice is optional, but for works published before that date it was mandatory, and getting it wrong could throw a work into the public domain. This article explains the three elements of a proper notice, the governing statutes at 17 U.S.C. §§ 401–406, the pre- and post-Berne Convention divide, and the way notice forecloses an innocent-infringement defense to preserve a copyright owner's statutory damages. It covers where notice goes on different kinds of works, how to handle derivative and collective works, the special rule for U.S. Government material, and the most common mistakes. It also covers the special rules for foreign works restored under the Uruguay Round Agreements Act and offers practical, modern best practices for websites, software, video, and merchandise. Whether you are a creator stamping your first photograph, a lawyer chasing the status of a 1970s film, or a judge sorting out whether an old paperback ever had protection at all, this is the working guide to copyright notice.
Surviving Community Supervision: A Practical Guide
This guide runs community supervision from the first meeting to the termination order. It covers the intake meeting and the questions to ask that nobody volunteers, building the compliance file that decides every later motion, handling reporting, testing, travel, and the money, what to do the day something goes wrong, how self reporting changes the response, what a modification motion should contain and when to file it, how to prepare for a revocation hearing including the ability to pay showing that Bearden requires, and how to obtain early termination, which is available far more often than it is requested.
Online Marketplace Trademark Enforcement Checklist: A Practical Checklist
This checklist turns online marketplace trademark enforcement into concrete tasks, organized in the order the work happens, for brand owners and for the sellers, platforms, landlords, and payment processors on the other side. It starts with the preparation that makes enforcement possible (registrations, platform enrollment, Customs recordation, authentication guides, and distribution terms) and then covers monitoring and evidence capture, sorting listings into counterfeit, gray market, altered, and lawfully resold goods before anything is reported, and test purchases with a documented chain of custody. The middle phases cover platform notices that will hold up later, escalation against repeat sellers, the written notices that build or defeat a contributory infringement claim under Inwood and Tiffany v. eBay, and demand letters to sellers who can be identified. The litigation phases cover Schedule A complaints, ex parte restraining orders and asset freezes, alternative service, expedited discovery, default judgments, and statutory damages under 15 U.S.C. § 1117(c). Separate sub-checklists address keyword advertising, sellers responding to takedowns and demands, and platforms and other intermediaries that receive notices. Red flags, an FAQ, and practical takeaways close the document.
Global Patent Wars: Lessons from High-Profile Case Studies
This long-form analysis examines the most consequential patent disputes of the modern era and distills the practical lessons each one offers to companies and counsel. It works through the Apple v. Samsung design patent war and the Supreme Court's Section 289 "article of manufacture" ruling, the Nokia-Qualcomm-Apple battles over standard-essential patents and FRAND licensing, the Huawei v. ZTE FRAND framework from the Court of Justice of the European Union, the Unwired Planet v. Huawei decision in which the UK Supreme Court set a global royalty rate, the smartphone non-practicing entity wars reshaped by eBay, inter partes review, Alice, and TC Heartland, biopharmaceutical patent cliffs such as the AbbVie Humira thicket, the Supreme Court's enablement ruling in Amgen v. Sanofi, and the CRISPR interference between the Broad Institute and the University of California. For each dispute the article explains what happened, the legal issues at stake, the outcome, and the strategic takeaway, using clearly labeled hypotheticals to make doctrine concrete. It is written so that judges, practitioners, and non-lawyers can all follow the analysis, and it situates each case within the broader practice of multi-jurisdictional patent strategy.
The Intricacies of AAA Commercial Arbitration: A Comprehensive Guide for Legal Professionals
AAA Commercial Arbitration offers a flexible, private, and often faster alternative to courtroom litigation for resolving business disputes—but only if you understand that it runs on a fundamentally different engine. This guide walks the entire lifecycle of a case under the AAA Commercial Arbitration Rules, amended effective September 1, 2022, from filing the Demand through arbitrator selection, the preliminary hearing, the exchange of information, the evidentiary hearing, and the final award. It explains the 2022 amendments practitioners most often miss—the consolidation-and-joinder rule, express confidentiality, the raised dollar thresholds, and codified remote hearings—and grounds each stage in primary authority: the Federal Arbitration Act (9 U.S.C. ss 1 et seq.), the Supreme Court's arbitrability and vacatur decisions, and the New York Convention. It covers who decides arbitrability after Henry Schein, the enforceability of class waivers after Concepcion and Epic Systems, emergency interim relief, and the deliberately narrow grounds for vacatur under 9 U.S.C. s 10 (including the dying doctrine of manifest disregard). Worked hypotheticals and current case law make the strategy concrete for judges, lawyers, and businesspeople alike.