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 Transactions

Buying and Selling a Business Toolkit: A Roadmap for Small-Company Mergers and Acquisitions

Most small-company deals fail or become disputes for the same handful of reasons, and every one of them is visible before signing. This toolkit follows a transaction from the decision to sell through post-closing integration, written for both sides. It covers preparing a company for sale and why that work begins two years early, the structure decision and its tax consequences, the letter of intent and the leverage that disappears when it is signed, diligence organized around the findings that actually change price, the purchase agreement provisions that allocate risk, the price mechanics that decide who bears working capital and earnout risk, closing logistics, and the post-closing obligations that outlive everyone's attention. Illustrations run a single hypothetical acquisition through each stage.

Casey Scott McKayJanuary 7, 202514 min read

Intellectual PropertyTrademark

The Shield of Good Faith: How Trademark Clearance Searches, Attorney Opinions, and USPTO Approval Protect Against Willful Infringement Claims

Willfulness no longer operates as an absolute precondition to disgorging an infringer's profits after Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212 (2020), but a defendant's intent remains the single most important equitable factor courts weigh when deciding whether to award profits, treble damages, and attorney's fees under 15 U.S.C. 1117. This article explains what willful trademark infringement means, why it controls the remedies a brand owner can recover, and how three layers of pre-adoption diligence -- a comprehensive clearance search, a reasoned opinion of counsel, and USPTO examination and registration -- combine to establish good faith and rebut claims of willful conduct. It catalogs the equitable factors courts actually weigh before ordering disgorgement, examines the privilege-waiver tradeoff that comes with asserting reliance on counsel, the evidentiary weight courts give USPTO determinations, the Tea Rose-Rectanus good-faith junior user doctrine, and the willful-blindness limits that prevent businesses from burying their heads in the sand. The discussion is anchored in primary authority, illustrated with a worked hypothetical, and connected to clearance-search and enforcement best practices that brand owners and their counsel can implement before adopting any new mark.

Casey Scott McKayJanuary 1, 202547 min read

Intellectual PropertyPatent

Utility Patent Basics

A utility patent is the workhorse of the patent system—the kind most people mean when they say "patent"—and this guide explains what it covers, what it costs, and how to get one. We walk through the four statutory categories of patentable subject matter under 35 U.S.C. 101, the requirements of usefulness, novelty (Section 102), non-obviousness (Section 103), and adequate disclosure (Section 112), all in plain English with worked examples. We dissect the anatomy of a real utility patent—specification, claims, and drawings—and explain why the claims are the part that actually matters. We compare provisional and nonprovisional applications, walk through examination and the 20-year term, and contrast utility patents with design patents, plant patents, and trade secrets. The goal is a single, trustworthy primer a founder, an inventor, or a curious judge can read start to finish.

Casey Scott McKayDecember 24, 202455 min read

CorporateSecurities

Managing a Cap Table: Options, SAFEs, Conversions, and 83(b) Elections

A capitalization table is the company's ledger of who owns what, and it is the document most likely to be wrong at the moment it matters most. Errors accumulate quietly — a grant approved but never papered, a SAFE with a side letter nobody filed, an option repriced by email, an 83(b) election that was never mailed — and they surface during diligence when the leverage has already shifted. This guide covers the structure of a cap table and the difference between authorized, outstanding, and fully diluted shares, the instruments that populate it and how each behaves, the tax elections and valuations that must accompany them, the mechanics of converting SAFEs and notes at a priced round, and the waterfall analysis that translates ownership percentages into actual dollars. It closes with a maintenance discipline and the errors that recur.

Casey Scott McKayDecember 24, 202426 min read

LitigationCommencement and Pleadings

Service of Process: Domestic and International Methods That Work

Service is the step that seems clerical and is jurisdictional, and a case can be dismissed years in because nobody checked whether the person who accepted the papers was authorized to receive them. This guide covers the mechanics that work. It starts with waiver of service, which is faster and cheaper than anyone expects and which most litigants ignore, then the methods for serving individuals, corporations, limited liability companies, partnerships, and government entities, including the state law alternatives Rule 4 incorporates. It covers the ninety-day deadline and the good cause and discretionary extension standards, service on evasive defendants and by publication, and the due process floor. The second half addresses international service under the Hague Service Convention, including the central authority process, the Article 10 mail question the Supreme Court resolved in Water Splash, service in China and other objecting states, and the court-ordered alternative service that has become common for foreign online defendants.

Casey Scott McKayDecember 23, 202426 min read

CommercialAdvertising and Marketing

TCPA Text Message Marketing Compliance Checklist: A Practical Checklist

The Telephone Consumer Protection Act pays five hundred dollars per message with no cap, which turns an ordinary marketing campaign into eight-figure exposure and makes the compliance question purely evidentiary: can you produce, for every number on the list, proof of what the person saw and agreed to. This checklist builds that capability. It covers consent capture and the disclosure elements that must appear adjacent to the checkbox, the records and version history that must be retained, suppression across every sending system in the company, revocation handling under the FCC's current standard, curfews measured by the recipient's actual time zone, vendor and lead-source diligence, and the governance that keeps a franchisee or a second platform from creating exposure nobody knew existed. It closes with vendor and lead-source diligence, the source of most litigated exposure and the hardest evidence to reconstruct after a demand arrives.

Casey Scott McKayDecember 22, 20249 min read

Real EstateResidential Finance

Defending a Foreclosure: A Practical Guide for Homeowners

This guide is a step-by-step defense plan for a homeowner facing foreclosure, written to be used rather than admired. It starts with the four facts you must establish in the first week, then moves through the free administrative tools that produce the loan file and stop the clock, the loss mitigation application that must be complete to trigger federal protection, the audit of the reinstatement quote that removes improper fees, and the litigation options in judicial and nonjudicial states. It explains what a defense realistically accomplishes, which arguments courts reject and why pursuing them is dangerous, when bankruptcy is the right tool, and how to exit with dignity and money when keeping the house is not possible.

Casey Scott McKayDecember 18, 202427 min read

Wills and EstatesIncapacity Planning

Planning for Incapacity: Guardianship, Conservatorship, and the Alternatives

Guardianship removes a person's legal right to make decisions about their own life and gives it to someone else, which is why every modern statute treats it as a last resort available only where less restrictive alternatives will not work. The alternatives are substantial and most of them must be put in place while the person still has capacity — a durable power of attorney, a health care proxy, a funded revocable trust, a supported decision-making agreement, and beneficiary and payee designations that route income without a court. Where those documents do not exist and the person can no longer manage, the court process begins with a petition, a capacity evaluation, and a hearing at which the respondent has counsel and the right to contest. This guide covers the alternatives, when a proceeding is genuinely necessary, how one runs, and what a guardian must do once appointed.

Casey Scott McKayDecember 17, 202426 min read

Labor and EmploymentPolicies and Procedures

Multistate Employment Compliance Checklist: A Practical Checklist

One employee working in a new state makes a company a multistate employer subject to that state's entire employment regime, its payroll tax registrations, and usually its business income and sales tax nexus. The obligations attach from the first day of work and most of them are invisible until a claim, an audit, or a notice arrives. This checklist runs the state-by-state review: the registrations that must be completed before the first paycheck, the wage and hour differences that catch employers paying only weekly overtime, the leave and notice mandates, the pay transparency and salary history rules that reach remote job postings, the restrictive covenant limits that can void an existing agreement when an employee relocates, and the handbook and posting architecture that keeps all of it maintainable. The organizing point is that the employee's physical work location governs, so the first task is always to establish where people actually are.

Casey Scott McKayDecember 17, 20249 min read

Real EstateFair Housing

Bringing and Defending a Fair Housing Claim: A Practical Guide

This guide runs a fair housing matter from both sides. The complainant track covers recognizing what happened, the documentation to create in the first week, working with a fair housing organization and its testing program, choosing among the four enforcement paths and their different deadlines and remedies, filing with HUD without a lawyer, the investigation and conciliation process, when to elect federal court, and how to plead and prove a private action. The respondent track covers the first forty-eight hours after a complaint arrives, preserving records, drafting a position statement that does not create new problems, the defenses that actually work, when to conciliate, and how to build the compliance program that prevents the next one.

Casey Scott McKayDecember 16, 202427 min read

Intellectual Property and TechnologyTrade Secret

Trade Secrets in the Age of Remote Work and Cloud Computing

The shift to distributed workforces and cloud collaboration dissolved the corporate security perimeter and reshaped the "reasonable measures" requirement at the heart of trade secret law. This article analyzes how courts apply that requirement under the Defend Trade Secrets Act and the Uniform Trade Secrets Act when employees access proprietary information from personal devices, home networks, and cloud platforms the employer cannot control, drawing on a deep bench of authority from PepsiCo v. Redmond through a wave of 2022–2025 remote-work decisions. It translates the case law into a working protection program spanning access controls, multifactor authentication, data-loss prevention, contracts, onboarding, offboarding, departing-employee forensics, and incident response. It explains the DTSA's whistleblower-immunity notice and civil-seizure remedy, the inevitable disclosure doctrine, and the 2025 collapse of the FTC's non-compete rule. Written for in-house counsel, IP and employment practitioners, and the executives responsible for protecting confidential information in hybrid environments.

Casey Scott McKayDecember 12, 202443 min read

Employment LawRestrictive Covenants

Non-Compete Agreements Under Siege: FTC Rulemaking and State Law Developments

The Federal Trade Commission's attempt to ban non-compete agreements nationwide is dead—set aside in Ryan, LLC v. FTC in August 2024 and formally abandoned by the Commission in September 2025—but the regulatory and judicial assault on restrictive covenants has only intensified. This article tells the full story of the FTC rule's rise and fall, including the Section 5/Section 6(g) authority debate and the major-questions problem that doomed it, then maps the fifty-state patchwork of bans, income thresholds, notice requirements, and physician-specific prohibitions that now governs employer practice. It explains the common-law reasonableness test, the blue-pencil problem, and the consideration traps that void agreements employers think are airtight, and it details the post-ban toolkit: garden leave, forfeiture-for-competition clauses, enhanced non-solicitation and confidentiality agreements, and the Defend Trade Secrets Act. Following a fictional sensor manufacturer through a complete redesign of its protection program, the piece shows how sophisticated employers protect trade secrets and customer goodwill without relying on a single fragile restraint. The throughline: the non-compete is under siege, but the interests it protected are not, and the tools for defending them have never been more sophisticated.

Casey Scott McKayDecember 12, 202452 min read