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.
Motion in Limine Toolkit: Standard Motion Banks, Opposition Frameworks, and Trial Objection Plans
This toolkit collects the working papers of motion in limine practice, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing authority. It opens with a triage matrix and a conferral letter with a stipulated order, then provides a standard motion bank of more than thirty common motions, each with a one-paragraph rationale, the governing authority, and a note on how the other side typically responds. Further templates cover a brief shell, proposed order language, an opposition framework, a script for confirming definitive rulings, a witness instruction memo, a trial objection plan, an offer-of-proof script, a violation response script, and a preservation tracker. A running fictional example, a herbicide drift case between an orchard and a chemical manufacturer, shows each template in use. A short FAQ and practical takeaways close the toolkit.
Dark Patterns, Auto-Renewal, and the FTC Click-to-Cancel Rule
Subscription businesses now face a body of law directed not at what they say but at how their interfaces are built, and the central proposition is that a cancellation path must be as easy as the signup path. The federal framework runs through ROSCA and the FTC Act, supplemented by an FTC rule on negative option marketing whose fate has been complicated by litigation, and by a growing set of state automatic renewal statutes that impose their own disclosure and cancellation requirements with private rights of action. This article explains what a negative option program is, what express informed consent and clear and conspicuous disclosure actually require, the specific design practices regulators have treated as unlawful, and the state statutes that now do most of the work. It closes with an audit method for a signup and cancellation flow.
Serving a China-Based Defendant Under the Hague Service Convention: A Practical Guide
When a U.S. company sues a China-based company, getting the defendant validly served is one of the first and hardest problems in the case—and getting it wrong can cost the plaintiff personal jurisdiction or leave it holding a judgment no Chinese court will enforce. This guide explains, in plain language for lawyers and business owners, how service on a Chinese defendant works under the Hague Service Convention: when the Convention applies under Volkswagenwerk v. Schlunk, how service through China's Central Authority (the Ministry of Justice) actually proceeds and how long it really takes, and why the usual shortcuts—mail under Article 10, consular service, local agents—are foreclosed by China's reservations. It then takes a hard look at the live frontier: court-ordered alternative service under FRCP 4(f)(3), email service after Rio Properties, and the Schedule A e-commerce cases where judges routinely authorize service by electronic means on elusive Chinese online sellers. It closes with the FRCP 4(d) waiver route, the SinoType contractual workaround, drafting guidance, a worked example, and an FAQ.
Cannabis Business Law: Licensing, Banking, Intellectual Property, and the Federal Problem
Cannabis is legal in most states and a Schedule I controlled substance under federal law, and every legal question in the industry descends from that contradiction. A cannabis business pays federal income tax on gross profit rather than net income because Section 280E disallows ordinary deductions. It generally cannot obtain a federal trademark registration for the goods it actually sells. It cannot file for bankruptcy. Its contracts may be unenforceable in federal court. This article explains how the industry operates within those constraints: the licensing regimes and ownership disclosure rules that determine who may participate, why banking access remains limited and what the FinCEN framework requires, how to build a defensible intellectual property position without federal registration, and what rescheduling would and would not change.
Authenticating Website Evidence: A Practical Checklist
Website screenshots, archived pages, and social media posts appear in nearly every modern case, and attorneys routinely lose this evidence by failing to lay a foundation. This checklist turns the law of electronic-evidence authentication into ordered, actionable steps: preserving and capturing web content the moment it is found, authenticating a live page, authenticating a historical page through the Wayback Machine the way Weinhoffer requires, proving authorship on social media, and clearing the remaining Lorraine hurdles of hearsay and the best evidence rule. It pairs each step with the governing Federal Rules of Evidence and the leading cases, and ends with the easy shortcuts—stipulations, requests for admission, and authentication by production—that can make formal authentication unnecessary. It is general information, not legal advice; authentication standards vary by jurisdiction and continue to evolve.
Preliminary Injunction and TRO Application Checklist: A Practical Checklist
An emergency motion is drafted in days and decided on an incomplete record, and the papers that succeed look like they were prepared months in advance. This checklist covers the whole package: confirming the standard in your circuit, assembling the declarations, drafting relief that is prohibitory and specific enough to be enforced by contempt, satisfying Rule 65(b) if proceeding without notice, proposing a bond, and preparing the proposed order. A separate phase covers defending an application on short notice, where the highest-value moves are asking for time, offering a standstill, and fighting on scope rather than on principle. Throughout, the emphasis is on the evidentiary record, because emergency relief is granted on declarations and exhibits rather than on argument.
Preparing Yourself or Your Witness for a Deposition: A Practical Guide
This guide walks a lawyer and a witness through deposition preparation from the day the notice arrives to the day the errata period closes. It gives a schedule of sessions with time and cost trade-offs, a decision on who the client is and how to deliver the Upjohn warning, and a method for selecting documents that survives a Rule 612 demand. It explains how to run a mock examination on video and how to give feedback without crossing into coaching. It offers separate tracks for the nervous witness, the overconfident witness, the executive, the former employee, the non-native speaker, and the person with no lawyer at all. It covers remote setup, the night before, the morning of, breaks by forum, and what happens afterward, with worked examples, sample language, and common mistakes.
Inequitable Conduct in Patent Prosecution: Navigating the Atomic Bomb of Patent Law
Inequitable conduct is the defense that can render an entire patent permanently unenforceable when an applicant breaches the duty of candor owed to the U.S. Patent and Trademark Office. This article explains the duty of candor under 37 C.F.R. 1.56, the watershed en banc decision in Therasense v. Becton, Dickinson and its demanding but-for materiality and specific-intent framework, and the narrow egregious-misconduct exception that survives it. It traces the doctrine from the Supreme Court unclean-hands cases through Kingsdown, Regeneron v. Merus, and the danger of infectious unenforceability across patent families. It explains the Information Disclosure Statement as the practical heart of compliance, supplemental examination under 35 U.S.C. 257 as a curative tool, and how Rule 9(b) pleading under Exergen gates these claims in litigation. It closes with a step-by-step compliance program. Throughout, plain-language explanations and worked hypotheticals make the doctrine accessible to inventors, business owners, and lawyers alike.
Copyright Registration of Websites and Website Content
A website is not a single copyrightable "thing" but a bundle of separate works—text, photographs, illustrations, video, sound, and code—each with its own author, owner, and registration path. This guide explains how the U.S. Copyright Office treats websites under Chapter 1000 of the Compendium, why there is no "website" registration class, and how to register the right components the right way. It covers the constant-updating problem and the hard ceilings on group registration, the slippery question of when online content counts as "published," and who actually owns text, images, and user-generated content. It connects registration strategy to real-world enforcement: DMCA Section 512 safe harbors and takedowns, the Copyright Claims Board small-claims route, terms-of-service licenses, and the law of data scraping. The goal is a practical, accurate roadmap that a judge, a lawyer, and a small-business owner can all follow.
Trademark Fair Use Analysis Checklist: A Practical Checklist
This checklist turns trademark fair use doctrine into a sequence of concrete tasks for brand owners, accused users, marketing teams, and litigators. It begins by framing the dispute and capturing every version of the accused use, then puts first the threshold question from Jack Daniel's Properties v. VIP Products: whether the accused party uses the term as a mark for its own goods. Separate parts work through classic descriptive fair use under 15 U.S.C. § 1115(b)(4), nominative fair use under each circuit's test, comparative advertising, expressive works under Rogers v. Grimaldi, parody, and the dilution exclusions in § 1125(c)(3). Later parts cover constitutional arguments, pleading and motion practice, evidence and surveys, pre-launch clearance of advertising and product copy, and the decisions each side makes around a cease-and-desist letter. Each item carries a short note on why it matters and the statute, case, or treatise section behind it, and the checklist closes with common mistakes and a table of key authorities.
Responding to a Search, Stop, or Seizure: A Practical Guide
This guide covers what to do during and after a police encounter, and what a lawyer does with it afterward. The encounter section covers the three tiers and the two questions that determine which one you are in, how to decline consent without escalating, what to do at the door of a home and how to read a warrant, whether and how to record, and what to say and not say. The aftermath section covers writing the contemporaneous account, requesting body camera footage before retention cycles run, recovering seized property, and filing complaints. The litigation section covers standing, burdens, structuring a suppression motion around a single moment, attacking a warrant, and anticipating the good faith argument.
Distinctiveness Toolkit: Secondary Meaning Declarations, Genericness Surveys, and Brand Usage Guidelines
This toolkit collects the working documents for proving acquired distinctiveness and for pursuing or resisting a genericness challenge, each introduced by its purpose, its owner, and when to use it, and each followed by drafting commentary tied to the governing rules and cases. The prosecution and evidence templates include a client evidence request, an exclusivity audit for the five-year statement, a bank of Section 2(f) claim language for each route under 37 C.F.R. § 2.41, an office action response outline, a corporate secondary meaning declaration, and a purchaser declaration kit. The survey templates include an expert engagement letter, specifications for Teflon, Thermos, and secondary meaning surveys, and an audit chart for testing the other side's survey. The brand protection templates include usage guidelines built around a generic descriptor, a usage and cooperation clause for licenses and partner agreements, a policing log, and correction letters to publishers, dictionaries, competitors, and platforms. It closes with the challenger's tools, a genericness evidence chart with targeted discovery requests and an outline for a cancellation counterclaim or petition, followed by common drafting mistakes and related resources.