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.

LitigationPatent Litigation

Comprehensive Guide to Patent Infringement Litigation: From Summary Judgment Denial to Post-Trial

This guide walks through the full life cycle of a United States patent infringement lawsuit, from where it can be filed through the final appeal, using a single running hypothetical to make each stage concrete. It explains subject-matter jurisdiction and venue after TC Heartland and In re Cray, modern pleading standards following the abrogation of Form 18, claim construction under Markman and Phillips, and the proof of literal infringement, infringement under the doctrine of equivalents, and indirect and divided infringement. It then turns to invalidity and the interplay between district court litigation and inter partes review at the Patent Trial and Appeal Board, summary judgment, and why a denial channels a case toward trial. The trial discussion covers infringement, validity, willfulness under Halo v. Pulse, and damages under Georgia-Pacific and Panduit, including apportionment, price erosion, convoyed sales, and enhancement. Finally, the article addresses Rule 50 motions and preservation, new trials and remittitur, permanent injunctions and ongoing royalties under eBay v. MercExchange, attorney's fees, and appeal to the Federal Circuit. Every term of art is explained in plain language for judges, practitioners, and non-lawyers alike.

Casey Scott McKaySeptember 3, 202459 min read

Intellectual PropertyRight of Publicity

Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law

The right of publicity was invented in 1953 to solve a problem about baseball cards. Seventy years later it is the doctrine everyone reaches for when a synthetic version of a person's face or voice appears in a commercial, a song, or a political advertisement, and it is straining under the weight. This article explains the doctrine and the new statutes built on top of it. It covers the origins of the right in privacy law and its transformation into a transferable property right, the state-by-state variation in what is protected and for how long, the First Amendment defenses including the transformative use test and the Rogers framework, and copyright preemption. It then addresses the digital replica statutes: Tennessee's ELVIS Act, which added voice to the protected attributes and reached tools whose primary purpose is producing unauthorized replicas; California's 2024 legislation governing digital replicas in performer contracts and the estates of deceased personalities; New York's law addressing digital replicas of deceased performers and synthetic performers; and the federal proposals and enacted statutes addressing nonconsensual intimate imagery and impersonation. A long section covers college athlete NIL after Alston and the House settlement, and a practical section covers contracting for digital replicas, consent, and platform takedowns. It closes with checklists, a worked example, an FAQ, and related reading.

Casey Scott McKayAugust 27, 202426 min read

Wills and EstatesTrust Administration

Trust Administration and the Trustee's Duties

A trustee holds property for someone else under the most demanding standard the law imposes, and most trustee liability arises not from bad investments but from failing to do administrative things nobody explained. This article covers what a trustee actually has to do: the duties of loyalty, prudence, impartiality, and disclosure as the Uniform Trust Code states them; how the prudent investor rule changed portfolio management and why an undiversified concentrated position is the most common surcharge case; how discretionary distribution standards work and what documentation supports them; the accounting and reporting obligations that also start the limitations clock; the modern flexibility devices — decanting, nonjudicial settlement agreements, directed trusts, and trust protectors; and the tax rules that make timing distributions worth real money. It covers the duties of loyalty, prudence, impartiality, and disclosure as the Uniform Trust Code states them, the prudent investor rule and the concentrated-position cases it generates, discretionary distribution standards, and the accounting obligations that also start the limitations clock. Later sections address the modern flexibility devices — decanting, nonjudicial settlement agreements, directed trusts, and trust protectors — and the tax rules that make distribution timing worth real money.

Casey Scott McKayAugust 24, 202425 min read

Intellectual PropertyPatent

The LKQ Decision: A Seismic Shift in Design Patent Obviousness Analysis

On May 21, 2024, the en banc Federal Circuit handed down its most consequential design patent decision in decades, overruling the forty-year-old Rosen-Durling test for obviousness and replacing it with the flexible, fact-intensive Graham framework that has long governed utility patents. LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024), arose from a dispute over a Chevrolet Equinox front fender, but its reach extends to every industry that relies on design patents--consumer electronics, automotive, fashion, housewares, and industrial design. This guide traces the legal and procedural history of LKQ, dissects the new four-factor framework, examines the USPTO's rapid response, and surveys the first two years of post-LKQ case law through 2026, including the PTAB's continued reluctance to institute review and the Federal Circuit's signal that primary references remain essential. It assesses practical implications for applicants, in-house counsel, litigators, and designers, and shows how the decision raises the strategic value of trade dress, copyright, and utility patents as layered protection. It closes with a checklist, an FAQ, and strategic guidance for the 2026 landscape, where the early data confirms evolution rather than collapse: allowance rates have held steady and aggressive obviousness attacks still demand rigorous, non-hindsight proof.

Casey Scott McKayAugust 22, 202445 min read

LitigationPre-Litigation Practice

Responding to a Government Subpoena or Civil Investigative Demand: A Practical Guide

A subpoena or civil investigative demand arrives without warning and starts several clocks at once, most of which are shorter than they appear. This guide walks the response from the first hour through production and beyond. It covers what to do immediately, including the litigation hold that must issue before anyone reads the demand carefully, and how to determine what kind of process you have received and what that tells you about the investigation. It then covers scope negotiation with the government, which is expected and almost always productive, the mechanics of collection and production, privilege review and logging, and the special problems presented by individual employees who may need separate counsel. Later sections address parallel civil and criminal proceedings, the decision whether to cooperate or contest, obstruction risk, and what a company should have done before any of this arrived.

Casey Scott McKayAugust 22, 202424 min read

Real EstateCommercial Leasing

Commercial Leasing Toolkit: A Roadmap for Tenants and Landlords

A lease is a five- or ten-year contract that most small businesses sign in a week, using a form drafted entirely for the other side. This toolkit walks the transaction from site selection through surrender, written so that either side can use it. It covers the diligence that should happen before the letter of intent, the economics that a stated rental rate conceals, the operating expense provisions that quietly determine the real cost, the construction and delivery mechanics that decide whether the space is usable on time, and the transfer and guaranty provisions that matter years later when the business is sold or fails. Later stages cover the landlord's perspective on credit and remedies, the administration practices that catch a missed renewal window, what to do when a tenant stops paying or a landlord stops performing, and the end-of-term obligations that generate the most post-lease litigation.

Casey Scott McKayAugust 22, 202415 min read

CommercialContract

The Battle of the Forms Under UCC Section 2-207: Purchase Orders, Acknowledgments, and Whose Terms Govern

Two businesses agree on price, quantity, and delivery, exchange preprinted forms whose terms contradict each other, and perform the deal without anyone reading the back pages. Section 2-207 exists to decide what happened, and it produces answers that surprise both parties, because the common-law rules it replaced would have given everything to whoever sent the last form. This article works through the section clause by clause, explains the difference between additional and different terms and why the knockout rule usually decides it, covers the narrow escape hatch for acceptances expressly conditional on assent, and addresses the very different result when contract formation happens through conduct rather than through matching documents. It closes with drafting and process changes that keep a company out of the problem entirely.

Casey Scott McKayAugust 19, 202427 min read

Intellectual PropertyTrademark

Online Brand Protection Toolkit: A Strategic Roadmap and Resource Library

This toolkit is a high-level roadmap for protecting a brand across the digital ecosystem, from the foundational federal registration that makes online enforcement possible through domain disputes, marketplace and app-store takedowns, social media and metaverse strategy, anti-counterfeiting and customs recordation, monitoring services, DMCA practice, and influencer compliance. Each stage links to mclaw.io articles and checklists plus the controlling external authorities, including WIPO's UDRP, ICANN, the USPTO, U.S. Customs and Border Protection, and the Lanham Act. It is written for in-house counsel, brand managers, and outside trademark practitioners who need to navigate the whole field rather than a single dispute. Use it as a research guide: read the narrative for orientation, then follow the resource links to do the actual work. The toolkit reflects the post-January 2025 USPTO fee and filing changes and flags areas where the law is unsettled, such as virtual-goods trademark scope. Verify all fees and deadlines at the official sources before relying on them.

Casey Scott McKayAugust 19, 202414 min read

LitigationMotions

Preliminary Injunctions and Temporary Restraining Orders: Emergency Relief in Federal Court

An emergency motion is the most consequential piece of paper many litigators ever file. It is written in days rather than months, decided on an incomplete record, and often determines the outcome of the case regardless of what happens later. This article explains how temporary restraining orders and preliminary injunctions actually work in federal court: the four factors of Winter v. NRDC and how the circuits differ in weighting them, the difference between prohibitory and mandatory injunctions and why the label matters, the strict limits Rule 65(b) places on ex parte relief, the bond requirement of Rule 65(c) and how to argue about its amount, and the specificity and binding-scope rules of Rule 65(d). It addresses irreparable harm as the factor that decides most motions, including the statutory presumption restored for Lanham Act cases by the Trademark Modernization Act and the Supreme Court's insistence in Starbucks v. McKinney that statutory injunction provisions be read against the traditional equitable backdrop. It covers the practical mechanics of moving and opposing, expedited discovery, evidentiary hearings, consolidation under Rule 65(a)(2), appeal under 28 U.S.C. section 1292(a)(1), and the recent narrowing of universal injunctions. It closes with drafting guidance, a worked example, an FAQ, and related reading.

Casey Scott McKayAugust 17, 202427 min read

Real EstateNatural Resources

Oil, Gas, and Mineral Rights: Ownership, Leases, Royalties, and the Rule of Capture

Under most American land, the minerals are a separate estate that can be owned, sold, leased, and inherited apart from the surface, and the mineral estate is generally dominant over the surface. This article explains that structure and what follows from it: the rule of capture and the conservation regulation that limits it, the oil and gas lease and the clauses that determine how much a landowner is actually paid, the post production cost fight that consumes a large share of royalty litigation, pooling and unitization, the implied covenants that fill the lease's silences, division orders, and the surface use and accommodation rules that govern what an operator may do to land it does not own.

Casey Scott McKayAugust 15, 202429 min read

Intellectual PropertyPatent

Understanding Patent Marking Requirements: A Practical Guide for Practitioners and Entrepreneurs

Patent marking under 35 U.S.C. 287 is one of the most consequential yet most overlooked compliance obligations in patent law, because failing to mark can erase years of pre-suit damages even against a deliberate copyist. This in-depth guide explains the difference between constructive notice (marking) and actual notice (a specific charge of infringement against a specific product), why the marking statute limits recovery rather than validity, and how the America Invents Act's virtual marking option lets a patentee mark with a website URL. It examines the patentee's burden to ensure licensees mark, including the Federal Circuit's decision in Arctic Cat Inc. v. Bombardier Recreational Products, Inc. and its burden-shifting framework, the special rules for method and process claims, and the post-AIA collapse of false marking liability under 35 U.S.C. 292 into a competitive-injury claim. With the Supreme Court's abolition of laches in SCA Hygiene, marking is now the single most important limit on how far back a patentee can reach for damages. The article closes with worked hypotheticals and an auditable compliance program, and is written for practitioners, in-house counsel, entrepreneurs, and judges alike.

Casey Scott McKayAugust 14, 202447 min read

Wills and EstatesTrust Administration

Trust Administration Checklist: A Practical Checklist

Most trustee liability arises not from bad investments but from administrative steps nobody explained — a concentrated position held without a written analysis, distributions made without documented reasoning, and annual reports never sent, which leaves the trustee exposed for years instead of one. This checklist runs the administration: the first ninety days from reading the instrument through the statutory notices and the initial portfolio review, then the recurring obligations that make up the job. It covers the investment discipline the prudent investor rule requires, the impartiality tools available when income and remainder interests diverge, the distribution protocol that makes a discretionary decision defensible, the reporting that starts a one-year limitations clock, the tax elections that are worth real money, and the protections available to a trustee who wants finality. It closes with the protections available to a trustee who wants finality — beneficiary consents after full disclosure, nonjudicial settlement agreements, virtual representation, and petitions for instructions.

Casey Scott McKayAugust 14, 202412 min read