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.
Proving Copyright Infringement: Access, Substantial Similarity, and the Tests Courts Actually Use
A copyright plaintiff must prove two things: ownership of a valid copyright and copying of protectable expression, and the second element splits into copying in fact and unlawful appropriation. This article walks through each element in the order a court takes them, from the originality threshold of Feist and the registration prerequisite of Fourth Estate through access, probative similarity, striking similarity, and the Ninth Circuit's abandonment of the inverse ratio rule in Skidmore v. Led Zeppelin. It then explains the circuit tests for substantial similarity in real detail: the Second Circuit's ordinary observer and more discerning observer tests, the Ninth Circuit's extrinsic and intrinsic tests, and the abstraction-filtration-comparison method courts apply to software. It covers the filters that remove ideas, facts, merger, scenes a faire, and thin compilations from the comparison, and it shows how those filters decided the leading music, literary, visual, and software cases. The article closes with the role of experts and surveys, summary judgment and jury instruction practice, the economics of these cases, strategy for each side, a worked example, and an FAQ.
Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest
Privilege is the only evidentiary protection a company can lose through carelessness on an ordinary Tuesday and never get back. This article explains the two distinct doctrines that businesses rely on and constantly conflate: the attorney-client privilege, which protects confidential communications for the purpose of legal advice, and the work product doctrine, which protects materials prepared in anticipation of litigation. It covers who holds the corporate privilege and who may waive it, the control group and subject matter tests resolved by Upjohn v. United States, the special problems of in-house counsel who wear business and legal hats, and the primary purpose and significant purpose tests for dual-purpose communications after In re Kellogg Brown and Root. It works through work product under Rule 26(b)(3), the difference between ordinary and opinion work product, and the substantial need exception. It then addresses waiver in operational terms: Federal Rule of Evidence 502, clawback agreements and Rule 502(d) orders, subject matter waiver, the at-issue and advice-of-counsel waivers, and disclosure to auditors, insurers, and the government. Sections on the crime-fraud exception, the common interest doctrine, internal investigations, and privilege logs follow, with checklists, a worked example, an FAQ, and related reading.
Section 112 Toolkit: Claim Support Charts, Invalidity Contentions, and Expert Declarations
This toolkit gives prosecutors and litigators working papers for Section 112 of the Patent Act that they can copy and adapt. It includes a claim support chart, a priority chain chart, a Wands factors worksheet, a common quality statement, an algorithm disclosure template with a Section 112(f) parsing worksheet, a machine learning disclosure worksheet, and a term-of-degree audit with a definitions clause bank. For contested matters, it adds office action response language, a Rule 132 declaration shell, pleading and invalidity contention language, discovery requests, an inventor deposition outline, three expert declaration outlines, and JMOL and verdict form language. Each paper states its purpose, owner, and timing, with drafting notes tied to authority current through October 2026. Bracketed placeholders mark what you must supply.
Policy-Limits Demand Checklist: A Practical Checklist
This checklist breaks a time-limited policy-limits demand into phases and concrete tasks for each participant: the claimant's lawyer, the liability insurer, defense counsel, and the insured. It starts with triage questions that decide whether a limits demand fits the case and which state's rules apply, then covers coverage confirmation, the evaluation package, liens, drafting to the governing statute, delivery, and the response period. The insurer's phases cover same-day logging, coverage review, notice to the insured, evaluation under the correct standard, information and extension requests, and acceptance, tender, or written rejection. Separate phases address defense counsel's duties, the insured's choices, multiple claimants and liens, and what to do after a demand expires. Red-flag boxes, a deadlines table, and a short section on common failure points with a worked example close the checklist.
Export Controls and Economic Sanctions: The EAR, ITAR, and OFAC for Ordinary Businesses
Export control and sanctions law reaches ordinary companies that do not think of themselves as exporters, because the definitions capture software downloads, cloud access, engineering emails, and hiring a foreign national. This article explains the three regimes an American business is most likely to encounter. It covers the Export Administration Regulations and how to classify an item, determine whether a license is required for a destination and end use, and apply a license exception, along with the deemed export rule that turns a domestic hire into an export. It then covers ITAR and the far stricter regime for defense articles and technical data, and OFAC sanctions, including the SDN List, the fifty percent rule that catches unlisted subsidiaries, and the difference between list-based and comprehensive programs. Later sections address antiboycott rules, screening and compliance program design, voluntary self-disclosure, and penalties, with a worked example, a screening checklist, and an FAQ.
How to Register a Copyright with the U.S. Copyright Office
Copyright protection arises automatically when a work is fixed, but registration is what converts that protection into something an owner can actually enforce. This guide walks creators and their advisers through the complete registration process: confirming ownership, choosing the right application type, preparing a compliant deposit, completing the eCO application without the errors that trigger delays, and timing the filing to preserve statutory damages and attorney's fees. It anchors each step in primary authority, including Fourth Estate v. Wall-Street.com on the registration prerequisite to suit and Unicolors v. H&M on the knowledge required to void a registration for inaccuracy. It covers special situations by work type, complex authorship including works made for hire and joint works, the Copyright Claims Board small-claims tribunal, and the Copyright Office's evolving position on works created with artificial intelligence. Current fees and a pending fee proposal are noted so filers can budget accurately.
Probate and Estate Administration: A Practical Guide for Executors
Serving as an executor is a job with fiduciary duties, statutory deadlines, and personal liability, undertaken by people who have usually never done it before and who are grieving. This guide walks the administration in order. It starts with the threshold questions: whether probate is required at all, which assets pass outside it, and whether a simplified procedure is available. It then covers opening the estate, the personal representative's appointment and powers, and the immediate tasks in the first thirty days. It works through the inventory, creditor notice and the claims process with its priority rules, the tax filings including the estate tax return and the portability election that is worth filing even when no tax is due, and the family protections that override the will. Later sections address distribution, accountings, closing the estate, and the disputes that most often arise.
Building a Vendor and Third-Party Risk Management Program
Most organizations do not know how many vendors they have, which of them hold personal data, or what any of the contracts say about notification and audit. That gap is the reason a growing share of security incidents, regulatory findings, and operational failures originate outside the company entirely. A workable program has four parts that reinforce each other: an inventory that is current, a tiering method that concentrates effort where the risk is, diligence proportionate to the tier, and contract terms that give the company information rights and remedies it can actually use. This guide covers building each part, the provisions worth negotiating and the ones that are not, ongoing monitoring, and the offboarding step that companies most often skip and most often regret.
Preparing and Opposing a Fee Petition: A Practical Guide
This guide runs a fee petition from both sides. It begins where fee awards are actually won or lost—in daily timekeeping habits set long before judgment—then covers confirming entitlement, calendaring the short deadlines, assembling the motion and supporting declarations, proving the market rate, presenting hours in a form a court can review, exercising billing judgment before the court does it for you, apportioning unsuccessful claims, requesting enhancements, and claiming fees on fees. The second half runs the opposition: choosing three targets rather than nine hundred, documenting them, and using offer-of-judgment leverage. Costs and settlement of fee claims are covered separately.
Domestic Violence Safety and Protective Order Checklist: A Practical Checklist
A working checklist for a domestic violence matter. The evidence section covers what to preserve and how, including exporting voicemails before carriers delete them and documenting technology facilitated abuse without alerting the abuser. The petition section covers the relationship and conduct elements, narrative drafting, the ex parte appearance, and service. The hearing section covers exhibits, timelines, accommodations, and the complete list of relief to request including the specific findings that trigger the federal firearms prohibition. Separate sections cover living with the order, renewal, the respondent's obligations, safety planning, and the collateral housing, employment, and immigration protections.
A Comprehensive Guide to Federal Civil Litigation for Small Businesses
This guide walks a small business through the full arc of a federal civil lawsuit, from the decision to sue or settle through pleadings, discovery, dispositive motions, trial, appeal, and collection, with a sustained focus on patent litigation. It anchors each stage in the governing rules and controlling cases, including the plausibility standard of Twombly and Iqbal, the summary judgment framework of Rule 56 and Celotex, the claim construction methodology of Markman and Phillips, and the venue rule of TC Heartland. It translates doctrine into practical, cost-aware strategy for businesses that cannot spend like a Fortune 500 defendant. Worked hypotheticals illustrate how the rules play out in real disputes. The aim is not to replace counsel but to make the reader a more informed client and a sharper decision-maker. Throughout, it flags the chokepoints where most cases are actually won, lost, or settled.
The Computer Fraud and Abuse Act After Van Buren: Gates, Insiders, Scrapers, and the Loss Requirement
This article explains what the federal computer trespass statute covers now that Van Buren has replaced purpose with gates, and why the fight has moved to three questions the Supreme Court left open. It walks through the structure of 18 U.S.C. § 1030, reads the leading cases closely, and shows how credentials, API keys, IP blocks, rate limits, robots.txt, revoked tokens, and cease-and-desist letters fare as gates. It covers the 2025 and 2026 appellate decisions on password sharing, resignation, AI agents, and investigative costs, including the Tenth Circuit's rejection of a technological-harm requirement for loss. It explains the civil claim in § 1030(g), the arithmetic of the $5,000 threshold, the two-year limitations period, and the Justice Department's charging policy for good-faith security research. Readers get worked hypotheticals and a candid account of what remains unsettled.