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.
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.
Pleading Around or Moving to Dismiss on Copyright Preemption: A Practical Guide
This guide takes both sides of a copyright preemption fight through their decisions in order. Plaintiffs get a fact inventory, a method for choosing between state and federal claims, sample allegations, and a plan for responding to removal. Defendants get a timeline, a framework for deciding whether removal is worth it, the structure of a notice of removal and a Rule 12(b)(6) motion, and what to do after a remand. It explains who carries the burden, how courts read pleadings at each stage, how Royal Canin changed the timing of amendments, and how limitations and fee exposure change once a claim is treated as federal. It includes worked hypotheticals, a cost and trade-off table, and the mistakes that most often decide these motions.
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.
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.
Rebrand Toolkit: Clearance Memos, Transition Plans, and Legacy Mark Maintenance Records
This toolkit collects the working papers of a rebrand, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing authority. The clearance templates are a brand estate register, a naming criteria brief, and a clearance memo outline built on the du Pont and regional circuit factors. The transition templates are a phased transition plan, an announcement claims review worksheet, "formerly known as" usage guidelines, customer, vendor, and lender notice letters, and a domain and handle migration log. The settlement templates are a phase-out and sell-off clause set with release language for a litigation-driven rebrand. The legacy templates are a legacy mark decision memo and a legacy mark maintenance record that verifies use before every Section 8 or Section 9 filing. A running example follows a freight software company from FREIGHTFOX to NORTHBEAM after a settlement, and a deadline tracker and practical notes close the toolkit.
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.
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.
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.
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.
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.
False Endorsement Toolkit: Talent Releases, Clearance Logs, and Demand Letters
This toolkit gives you working papers for false endorsement clearance and disputes, ready to copy and adapt. It includes a talent release that separates appearance from endorsement, a clearance log, an AI voice and likeness rider, vendor warranty language, and a triage matrix. For disputes, it provides a demand letter, a response letter, an insurance tender, a recognizability evidence plan with a survey specification, and a federal complaint outline. Each form states its purpose, its owner, and its timing, with drafting notes tied to the cases that explain why the language is there.
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.