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.
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.
Copyright Preemption Toolkit: Extra Element Charts, Removal Papers, and Motion Outlines
This toolkit collects working papers for copyright preemption disputes under 17 U.S.C. § 301. It includes an intake worksheet, an extra element chart by claim, bank of sample allegations, removal notice paragraphs, remand and Rule 12(b)(6) motion outlines, an opposition outline, a conflict preemption argument module, a Royal Canin amendment stipulation, and a fee warning letter. A contract clause bank offers payment, confidentiality, field-of-use, access, and delivery language written to carry obligations copyright law does not supply. Each tool states its purpose, owner, and timing, and is followed by drafting notes tied to authority. All templates use bracketed placeholders and must be adapted to the facts and the governing circuit.
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.
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.
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.
Copyright Infringement Litigation Toolkit: Similarity Charts, Expert Reports, and Filtration Analyses
This toolkit collects the working documents that decide copyright similarity cases: the charts, logs, memoranda, expert report outlines, and trial forms that turn the doctrine of access, probative similarity, filtration, and substantial similarity into evidence. Each template states its purpose, its owner, and when to use it, and each is followed by drafting commentary tied to the governing statutes, rules, and cases. The first group builds the record with an element and proof matrix, a version and deposit log, an access chain log, and a probative similarity chart. The second group does the comparison: a master similarity and filtration chart, medium-specific charts for stories, music, and visual works, a software abstraction-filtration-comparison worksheet, a prior-art search protocol, and a filtration memorandum. The final group covers experts and trial, with a similarity expert report outline, a report audit and Daubert outline, an independent creation declaration, a source code review protocol, targeted discovery, jury instructions and a special verdict form, and a demonstrative exhibit protocol.
Default Judgment Checklist: A Practical Checklist
This checklist turns federal default practice into phased, check-off tasks for both sides of the case. The plaintiff's phases run from confirming service and computing the response date through the request for entry of default, the servicemember and protected-party checks, the choice between a clerk's judgment and a court judgment, the damages record, the Rule 55(b)(2) motion, and the proposed judgment and enforcement. The defendant's phases run from day-one triage through motions to extend time, to set aside an entry of default, and to vacate a default judgment under Rule 60(b)(1), (4), and (6), along with stays of enforcement and stipulations. Each item links the governing rule, statute, or case and adds a short practical note. Red-flag boxes, a deadlines table, a short worked example, and a list of common failure points close the checklist.
Filing a DMCA Takedown Notice: A Practical Checklist
The DMCA notice-and-takedown system is the fast lane of online copyright enforcement: a substantially compliant notice obliges a hosting provider to remove infringing material to keep its safe harbor. This checklist walks a copyright owner or agent through preparing and sending an effective takedown notice, identifying the designated agent, satisfying the six statutory elements of Section 512(c)(3)(A), considering fair use before signing as Lenz requires, scoping the request proportionately, and anticipating a counter-notice. It flags the deficiencies that let providers ignore a notice and the Section 512(f) liability that follows a knowing misrepresentation. It also explains why registering the work early strengthens your hand if the dispute escalates. Confirm current platform procedures before relying on any step.
Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover
This article explains where lawful witness preparation ends and coaching begins, reading the ethics rules, ABA Formal Opinion 508, and the cases that have sanctioned or cleared lawyers for what they did in the conference room. It covers the Upjohn warning and who actually holds the privilege, why former employees and third-party witnesses are different, and the split between In re Allen, Peralta v. Cendant, and Newman v. Highland School District. It reads Rule 612, Sporck v. Peil, James Julian, Berkey Photo, and Nutramax closely so you can predict whether the prep binder will be discoverable. It sets out what opposing counsel may ask about preparation, what happens during breaks, and how remote depositions change the risk. It also explains how memory works under questioning, how preparing an executive differs from preparing a frightened clerk, and what a nonlawyer about to be deposed should know.
Consumer Health Data Toolkit: Consent Forms, Data Maps, and Breach Notification Decisions
This toolkit collects the working papers for a consumer health data program. It includes an applicability matrix, a HIPAA status worksheet, a data map template with a filled-in row, a traffic capture script, consumer health data privacy policy clauses, consent and sale authorization language, vendor contract clauses, a Health Breach Notification Rule decision tree with a decision memo and notice letter, consumer rights procedures and scripts, a geofence decision matrix, and a legal process intake sheet. Each tool states its purpose, owner, and timing, and each is followed by drafting notes tied to the governing authority. Bracketed text needs your facts. Every sentence that makes a factual claim has to be checked against what your systems actually do.
Generative AI Authorship Toolkit: Disclosure Statements, Contribution Logs, and Ownership Clauses
This toolkit collects the working documents a creator, business, or lawyer needs to claim copyright honestly in work made with generative AI and to allocate ownership of it by contract. It provides an AI-use intake questionnaire, a contribution log, model disclosure language for the Author Created, Material Excluded, and Note to Copyright Office fields, a response to examiner correspondence, an outline for a request for reconsideration, and a decision memo for correcting older registrations. It also supplies ownership and risk clauses for employee AI-use policies, contractor and agency agreements, publishing contracts, and collaborations, a protocol for protecting prompts and workflows as trade secrets, and litigation templates for auditing a registration under Section 411(b) and taking discovery on the creative process. Each template states its purpose, owner, and timing and is followed by drafting notes tied to the Copyright Act, the Copyright Office's 2023 guidance and 2025 Part 2 report, and the leading cases. The toolkit reflects the law as of January 2026, after the D.C. Circuit's affirmance in Thaler v. Perlmutter.
Preparing an Invention Disclosure: A Practical Checklist
An invention disclosure is the raw material from which a patent application is built, and its quality sets the ceiling on the protection an inventor can ever obtain. This checklist walks an inventor or R&D team, step by step, through gathering exactly what patent counsel needs: a precise problem statement, the mechanism (not just the result), alternative embodiments you did not build, the prior art you know of, the dates and records that anchor conception, and the contributor roles that determine inventorship. It flags the timing bars under 35 U.S.C. § 102 (including Helsinn's secret-sale rule), the duty of candor under 37 C.F.R. § 1.56, and the § 112 written-description and enablement demands that the disclosure must ultimately satisfy. Use it to produce a disclosure that lets counsel claim the full scope of the invention and survive both examination and later challenge.