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.

LitigationDepositions

Rule 30(b)(6) Deposition Preparation Checklist: A Practical Checklist

A Rule 30(b)(6) deposition is a deposition of the organization rather than of a person, and the duty is to prepare the organization's answer rather than to produce someone who happens to know things. Producing an unprepared designee is treated as a failure to appear, with sanctions that include a second deposition at the organization's expense and preclusion of testimony on the topics the witness could not address. This checklist runs both sides of the exercise: for the noticing party, drafting topics with reasonable particularity, conferring as the 2020 amendment requires, and building the examination that establishes either the organization's position or its unpreparedness; and for the responding party, objecting and conferring, designating and allocating topics in writing, and running a preparation process that is measured in days rather than hours. It closes with the post-deposition steps, including errata practice, supplementation, and the sanctions motion whose preclusion component is what actually changes cases.

Casey Scott McKayJanuary 24, 202511 min read

Intellectual PropertyCopyright and Trademark

Intellectual Property Disputes Concerning Superheroes

Superheroes are among the most valuable intellectual property on earth, and the fights over who owns them are some of the most dramatic and consequential battles in copyright and trademark law. This article explains how a fictional character becomes protectable property, why creators and their heirs keep returning to court decades after a character is born, and how copyright and trademark protect a hero from completely different angles. We walk through the marquee disputes: the decades-long Superman termination wars between the Siegel and Shuster heirs and Warner/DC, Marvel's victory over the Jack Kirby estate on work made for hire, the Ninth Circuit's ruling that the Batmobile is itself a copyrightable character in DC Comics v. Towle, the Gaiman-McFarlane fight over Spawn, and the 2024 collapse of Marvel and DC's jointly owned "Super Hero" trademark. Along the way we cover fan works and fair use after Andy Warhol Foundation v. Goldsmith, cosplay and costume copyright after Star Athletica, and what all of it means for ordinary creators. The piece closes with practical takeaways, hypotheticals, a plain-English FAQ, and links to related guides.

Casey Scott McKayJanuary 23, 202551 min read

Intellectual PropertyPatent

How to License Your Patent: From Valuation to Term Sheet

This guide walks the full arc of monetizing a patent through licensing, from honestly assessing whether your patent is a licensing candidate, to valuing it under the cost, market, and income approaches, to structuring and papering the deal. It explains the Georgia-Pacific reasonable-royalty framework and the apportionment rules that constrain it, the choice between exclusive and non-exclusive grants and the field-of-use and territorial hybrids in between, and the royalty architecture of upfronts, running royalties, minimums, and milestones. It covers the protective machinery of audits, representations, warranties, and indemnity, and the doctrinal landmines every licensor must know: the Brulotte/Kimble bar on post-expiration royalties, the Lear right of a licensee to challenge validity, patent exhaustion, and patent misuse. It includes an annotated term sheet and addresses university licensing under Bayh-Dole and standard-essential patents under FRAND. It is educational, not legal advice.

Casey Scott McKayJanuary 23, 202550 min read

Real EstateLand Use

Eminent Domain and Regulatory Takings: Just Compensation, Inverse Condemnation, and Penn Central

The Fifth Amendment permits the government to take private property for public use on payment of just compensation, and almost every word in that clause has generated its own body of law. Direct condemnation is a procedure — the government files, deposits an estimate, takes title, and litigates value. Regulatory takings are harder, because a regulation that destroys value is sometimes compensable and usually is not, and the line between them runs through a multi-factor test the Supreme Court has repeatedly declined to make more predictable. This article covers the public use requirement after Kelo, the categorical rules for physical occupations and total economic wipeouts, the Penn Central balancing test, the exaction cases, the mechanics of a condemnation action, and how just compensation is actually measured.

Casey Scott McKayJanuary 23, 202525 min read

LitigationLitigation Finance

Third-Party Litigation Funding: Structures, Privilege, and Disclosure Obligations

Litigation funding has moved from a curiosity to an ordinary feature of large commercial disputes, and the legal framework has not entirely caught up with it. The doctrinal obstacles that once made these arrangements unenforceable — champerty, maintenance, and usury — have eroded unevenly, so that an arrangement lawful in one state may be void in the next. The live questions today are less about legality than about disclosure, privilege, and control: whether the funding agreement must be produced, whether sharing case assessments with a funder waives work product, and how much influence a funder can exercise before it compromises counsel's independent professional judgment. This article covers the structures in use, the doctrinal state of play, the disclosure rules now emerging in federal and state courts, and the diligence a party should do before signing.

Casey Scott McKayJanuary 22, 202525 min read

Real EstateCommercial Ownership

Buying Commercial Real Estate: Contract, Diligence, Title, and Closing

Buying a commercial building is a diligence exercise with a contract wrapped around it, and the contract exists mainly to define how long you have to discover problems and what happens when you do. This article walks the transaction in order. It covers the letter of intent and the purchase and sale agreement, the deposit structure and the difference between refundable and hard money, and the due diligence period that is the single most negotiated term. It then covers title review in detail, including how to read a commitment and its exceptions, what an ALTA survey shows that a title report does not, and the endorsements worth buying. Later sections address environmental assessment and the innocent landowner defense, zoning and land use verification, tenant estoppels and lender documents for leased property, financing, entity and tax structuring including 1031 exchanges, and the closing itself, with a worked example, a diligence checklist, and an FAQ.

Casey Scott McKayJanuary 21, 202525 min read

Intellectual PropertyCopyright

Copyright Ownership, Joint Authorship, and Termination of Transfers

Copyright vests automatically in the author the moment a work is fixed, and almost everything that goes wrong afterward is a failure to move that ownership deliberately. This article explains who owns a copyright at the moment of creation, how the work made for hire doctrine reassigns that ownership to an employer and why it almost never applies to independent contractors, and what joint authorship actually requires under the divergent tests of Childress v. Taylor and Aalmuhammed v. Lee. It then covers transfers: the strict writing requirement of section 204(a), the implied nonexclusive license that fills the gap when parties forget it, recordation and the priority rules that reward it, and the diligence questions that reveal a broken chain of title. The final part addresses the termination right, an inalienable statutory power that lets authors and their heirs claw back grants after thirty-five years under section 203 or during a five-year window under section 304(c), including the notice mechanics, the derivative works exception of Mills Music v. Snyder, and why the right cannot be waived no matter what the contract says. It closes with a worked example, a diligence checklist, an FAQ, and related reading.

Casey Scott McKayJanuary 17, 202525 min read

TaxTax Controversy

Responding to an IRS Notice of Deficiency

A statutory notice of deficiency gives the taxpayer ninety days to file a petition in the United States Tax Court, and it is the last opportunity to litigate a proposed tax without first paying it. The deadline is short, the consequences of missing it are severe but not always fatal, and the decision it forces — which forum, and on what theory — shapes everything that follows. Before responding, counsel must verify that the notice is valid, calculate the deadline precisely, and determine whether the underlying case was ever heard by the IRS Independent Office of Appeals, which remains the only administrative body authorized to settle on litigation risk. This guide covers verifying the notice, computing the deadline, choosing a forum, drafting and filing the petition, the path through docketed Appeals, and the alternatives available to a taxpayer who let the ninety days run.

Casey Scott McKayJanuary 15, 202526 min read

Real EstateFair Housing

Fair Housing Compliance and Complaint Checklist: A Practical Checklist

A two-sided checklist. The complainant sequence covers what to document in the first week, what not to do, choosing among the four enforcement paths and their differing deadlines, filing with HUD or a local agency, and building the damages record. The compliance sequence covers written screening criteria, individualized criminal and eviction assessment, advertising review, occupancy standards, the reasonable accommodation process, assistance animals, the seven design and construction requirements for post 1991 multifamily housing, algorithmic screening and pricing audits, training, and records retention. A response sequence covers the first forty eight hours after a complaint arrives.

Casey Scott McKayJanuary 13, 20258 min read

LitigationCivil Rights

Bringing and Defending a Section 1983 Claim: A Practical Guide

This guide takes a Section 1983 case from the first client meeting through fee petition, on both sides. It covers the intake screening that identifies whether a viable federal claim exists, the very short state notice of claim deadlines that destroy parallel state claims, the preservation letters and public records requests that must go out within days, how to draft a complaint that survives a qualified immunity motion, the Monell discovery plan that determines case value, the interlocutory appeal that will delay everything, damages proof, and the fee petition that is frequently worth more than the judgment. It closes with settlement structures that include policy change.

Casey Scott McKayJanuary 13, 202528 min read

Intellectual Property and TechnologyInternet

Data Scraping After hiQ v. LinkedIn: Copyright, Contract, and Computer Fraud Claims

The AI industry's appetite for training data has turned web scraping into one of the most consequential battlegrounds in technology law, implicating computer-fraud, contract, and copyright doctrines that point in different directions. This article explains the landscape in plain language for the two audiences who need it—data collectors and the websites they scrape—following the practices through a single recurring example. It traces the six-year hiQ v. LinkedIn saga and its paradoxical ending, the Supreme Court's narrowing of the CFAA in Van Buren, the contract cases that followed (Meta v. Bright Data and X v. Bright Data), the copyright status of raw data under Feist, and the wave of AI-training copyright suits, including Bartz v. Anthropic, Kadrey v. Meta, Thomson Reuters v. ROSS, and the Andersen and New York Times litigation. It covers robots.txt, DMCA Section 1201, trespass to chattels and other common-law theories, and closes with practical risk guidance for both sides plus a detailed FAQ.

Casey Scott McKayJanuary 11, 202552 min read

Intellectual PropertyTrademark Litigation

Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide

The Lanham Act lets a court award attorney's fees to the prevailing party in "exceptional cases," and since the Supreme Court's 2014 decision in Octane Fitness the meaning of that phrase has been transformed. This guide explains, in plain language for both lawyers and business owners, when a trademark case is "exceptional" enough to shift fees, how the Octane Fitness standard works and why a patent case governs trademark disputes, and how the Second Circuit applies it. It covers the two routes to an exceptional-case finding—the substantive weakness of a party's position and the unreasonable manner in which the case was litigated, including discovery misconduct—who qualifies as a prevailing party, whether fees can be awarded for partial victories, and how a reasonable fee is calculated under the lodestar method with adjustments for degree of success and apportionment to the Lanham Act claims. It closes with worked examples, a FAQ, and practical takeaways for the party seeking fees and the party resisting them.

Casey Scott McKayJanuary 10, 202544 min read