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.

CorporateCorporate Governance

Obtaining or Resisting Advancement: A Practical Guide

An advancement dispute is a short, fast, document-driven proceeding in which the merits of the underlying case are irrelevant and almost everything turns on what the governing documents say. This guide runs both sides. For the individual it covers assembling the entitlement record, drafting the demand and the undertaking, filing summarily, and administering the payment stream that follows. For the company it covers the analysis to run before refusing, the arguments that actually work and the many that do not, and how to limit exposure through allocation and procedure rather than through resistance. It also covers the insurance steps that must happen in parallel and the indemnification determination at the end.

Casey Scott McKaySeptember 5, 202628 min read

ArbitrationInternational Arbitration

Obtaining Emergency or Interim Relief in Arbitration: A Practical Guide

This guide runs an urgent arbitration application from the first hour through enforcement. It begins with the triage decisions that determine everything — whether relief is genuinely needed, which forum can grant what, and whether a standstill letter would do the job at a fraction of the cost. It then covers building the application: the evidence of urgency and irreparable harm that decides most cases, the draft operative order that shapes what is granted, and the security proposal that anticipates the arbitrator's condition. Respondent sections address the compressed response, the defences that work, and preserving jurisdictional objections. Later sections cover concurrent court applications and how to run them without prejudicing either, enforcement of an emergency decision, review by the constituted tribunal, and the clause provisions that should have been there.

Casey Scott McKaySeptember 5, 202628 min read

Business and CorporateMergers and Acquisitions

Negotiating the Indemnity Package in a Deal: A Practical Guide

A step-by-step guide to negotiating the risk allocation in an acquisition agreement, written for counsel on either side and for principals who want to understand what they are trading. It runs from the letter of intent through diligence, the representation set, the schedules, the six indemnity terms, insurance, special indemnities, earnouts, and the post-closing claim process. Each step explains what the term is pricing, what the other side will say, and where the standard compromise lands. It includes a worked negotiation with named parties, market ranges, a term sheet, and the post-closing calendar that prevents most claim failures. The organizing idea is that the indemnity package is a single system, and moving one term reprices the others.

Casey Scott McKaySeptember 5, 202628 min read

CorporateExecutive Compensation

Negotiating Management Terms in a Sponsor Transaction: A Practical Guide

This guide takes a management team through a sponsor transaction in sequence, from the first conversation about rollover to the exit five years later. It starts with engaging separate counsel and modeling the deal, then works through the rollover instrument decision that matters more than the rollover percentage, the structure choices that determine whether the rollover is taxable, and the incentive pool's design. The middle sections cover the negotiation itself — which terms move, in what order, and how to frame each ask — followed by the leaver provisions and employment agreement where most of the value is won or lost. The last sections cover the elections and votes with hard deadlines, the documents to sign, and living with the arrangement afterward.

Casey Scott McKaySeptember 5, 202629 min read

Intellectual PropertyPatents

Negotiating and Litigating a FRAND License: A Practical Guide

A step-by-step guide to a standard-essential patent negotiation and the litigation that may follow, written for implementers, patent holders, and the in-house teams that own the relationship. It covers the implementer's exposure mapping and supply chain analysis before any letter arrives, the response that establishes willingness, the essentiality and valuation work, the counter-offer, security, and the forum decisions that follow. Separate parts address the patent holder's preparation and notice obligations, rate-setting litigation and its evidence, the ITC and multi-jurisdictional strategy, and settlement structure. It includes a worked negotiation with named parties, budgets, a timeline, and the mistakes that decide leverage.

Casey Scott McKaySeptember 5, 202627 min read

CorporateMergers and Acquisitions

Negotiating and Administering an Earnout: A Practical Guide

This guide takes an earnout from the letter of intent through the last payment, in the order the work happens. It explains how to decide whether an earnout is the right instrument at all, how to choose and define the metric so it survives integration, and how to convert vague efforts language into covenants a seller can actually enforce. It then covers the mechanics that decide who wins later: the sample calculation, the accounting hierarchy, the access and objection process, and the design of the independent accountant determination. The second half is administration — what the buyer should do from day one, what the seller representative should do when a statement arrives, and how to run an objection without destroying the relationship.

Casey Scott McKaySeptember 5, 202630 min read

Intellectual PropertyEntertainment and Media

Negotiating a Publishing or Merchandising License: A Practical Guide

The value in a publishing or merchandising negotiation sits in a small number of provisions, and the royalty rate is not among the top five. This guide sets out the order in which to negotiate: what to grant and what to reserve, the royalty base and its deductions, the reserve against returns, acceptance and delivery, and the audit right that makes reporting meaningful. For merchandising it covers the minimum guarantee against minimum performance, the approval architecture, the quality control program that also preserves the trademark, and the sell-off. It then covers running the programme after signature — royalty review, approval administration, and enforcement — and closes with the diligence a licensee should do before taking any grant.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyPatents

Negotiating a Patent License: A Practical Guide

A patent licence is a short document that carries the whole economics of a technology relationship, and the negotiation rewards preparation far more than eloquence. This guide walks through the sequence that produces a durable agreement: understanding what is being licensed and why, running the diligence that tells you whether the patents are worth what is being asked, and structuring the grant so that it matches the business. It then works through the money — royalty base, rate, minimums, milestones, and the audit that makes reporting meaningful — and through the clauses that decide what happens when the relationship changes: improvements, enforcement, standing, assignment, and termination. Separate sections address the licensee's leverage, the licensor's protections, and the traps that recur in every negotiation. Worked examples follow a university licence, a cross-licence between competitors, and a settlement licence negotiated under a trial date.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyTechnology Transactions

Negotiating a Joint Development Agreement: A Practical Guide

A joint development agreement is negotiated before anyone knows what will be invented, which is why the allocation decisions have to be made structurally rather than item by item. This guide runs the negotiation in sequence: the pre-term-sheet conversation with the technical leads that determines the allocation, the assignment chain diligence that must precede any commitment, the field definitions that carry the whole structure, and the background IP work that determines whether either party can practice the result. It then covers the commercial terms, the governance that manages inventorship during the project, and the survival provisions. It closes with the counterparty-specific issues — universities, customers, competitors, and startups — that change the negotiation materially.

Casey Scott McKaySeptember 5, 202629 min read

CommercialSupply Chain

Negotiating a Contract Manufacturing Agreement: A Practical Guide

This guide walks through negotiating and running a contract manufacturing relationship in the order the work happens, from selecting the manufacturer to leaving it. It starts with the diligence that determines everything downstream, then the term sheet that settles the five provisions worth real negotiating capital, and the contract architecture that keeps purchase orders from overwriting the agreement. The middle of the guide covers tooling, capacity and forecasting, the quality agreement written alongside the commercial one, change control, and the pricing mechanism with the audit that keeps it honest. Later steps address supply chain compliance obligations that fall on the customer, monitoring the manufacturer's financial health, running the relationship through scorecards and audits, handling deterioration, and executing a transfer. A running example follows one hardware company through a negotiation and, three years later, a transition.

Casey Scott McKaySeptember 5, 202628 min read

TechnologyTechnology Transactions

Negotiating a Colocation or Cloud Infrastructure Agreement: A Practical Guide

Infrastructure agreements are negotiated once and lived with for years, and the provisions that matter are not the ones lawyers usually spend time on. This guide sets out the sequence that produces a good outcome: building the requirement in the units the market actually prices, running a competitive process that preserves leverage, and reading the provider's form for the handful of terms that carry the economics. It works through the power and capacity negotiation, the service level definitions and their exclusions, interconnection and access, and the liability stack. Cloud-specific sections address committed spend, price protection, egress, capacity reservations, and change-of-terms rights. Later steps cover security and audit, regulated-customer requirements, and the exit provisions that must be negotiated before signature because they cannot be negotiated afterward. Worked examples follow a first colocation deal, an enterprise cloud renewal, and a migration between providers.

Casey Scott McKaySeptember 5, 202628 min read

Intellectual PropertyPatents

Navigating the BPCIA Patent Dance: A Practical Guide

A step-by-step operational guide to the BPCIA information exchange and the litigation that follows, written for counsel on both sides and for the regulatory and manufacturing teams whose decisions drive it. It covers the applicant's pre-filing patent landscape and process design, the decision whether to dance and how to quantify the trade secret exposure, each step of the exchange with its deadlines, the negotiation over which patents get litigated, the immediate action, the 180-day notice, and the preliminary injunction that replaces the automatic stay. Separate parts address confidentiality, interchangeability strategy, at-risk launch analysis, and settlement. It includes a worked sequence with named parties, budgets, and a day-count calendar.

Casey Scott McKaySeptember 5, 202628 min read