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.

CorporateBusiness Formation

Business Dissolution and Wind-Down Checklist: A Practical Checklist

Closing a business is a sequence with a required order, and the rule that governs the whole exercise is that liabilities come before distributions. Owners who reverse it acquire personal liability for unlawful distributions, fraudulent transfers, trust fund taxes, and in several states wage claims, and they forfeit the statutory creditor claims procedure that would have barred later claims for the cost of a newspaper notice. This checklist runs the sequence: authorization and the wind-down budget, the employee obligations that arrive first and carry the most personal exposure, contracts and leases and asset liquidation, the known and unknown claims procedures, final tax filings and the clearance certificate that gates the dissolution filing, license cancellations and foreign withdrawals, distributions with documented solvency, and the tail coverage and records retention that outlast the entity. It assumes a solvent wind-down; where the company cannot pay its debts in full, the correct vehicle is an assignment for the benefit of creditors or a bankruptcy, and the analysis changes entirely.

Casey Scott McKayJune 24, 202412 min read

CommercialConfidentiality and Joint Ventures

Drafting and Negotiating a Joint Venture Agreement

A joint venture is two companies agreeing to do something together that neither will do alone, and the agreement's job is to answer what happens when one of them changes its mind. This guide covers the drafting and negotiation from the term sheet forward. It starts with the threshold question of structure, contractual or entity, and what each implies for liability, tax, and financing, then works through the scope and exclusivity provisions that define what the venture is and what each party may still do outside it. It covers contributions of cash, assets, and intellectual property, funding obligations and the consequences of a shortfall, and the governance architecture including reserved matters and deadlock. Later sections address intellectual property ownership and licensing, which is where technology joint ventures actually break down, antitrust constraints, transfer restrictions and exit mechanics, and termination and unwinding.

Casey Scott McKayJune 21, 202427 min read

CommercialAdvertising and Marketing

Sweepstakes, Contests, and Promotions: The Law of Prize, Chance, and Consideration

A promotion that combines a prize, an element of chance, and consideration is an illegal lottery in every state unless the government is running it. Remove any one of the three and it becomes a lawful sweepstakes or contest. This article explains the three-element framework and how to break it correctly, the federal statutes that reach lotteries through the mail and broadcast media, the state registration and bonding requirements that catch large promotions, the official rules and their required elements, the advertising and disclosure obligations that apply to how the promotion is marketed, the platform terms that operate as private law, and the tax, privacy, and international issues that follow.

Casey Scott McKayJune 20, 202428 min read

LitigationRegulatory Compliance

Defending a Professional License Before a State Board

A professional license is frequently a person's entire livelihood, and a board complaint threatens it through a process that resembles litigation only partially. The board is investigator, prosecutor, and adjudicator; the rules of evidence are relaxed; the standard of proof may be lower than in civil court; and the collateral consequences of any discipline — database reporting, reciprocal action in other states, exclusion from federal health programs, loss of privileges and insurance — frequently exceed the sanction itself. This guide walks the process from the arrival of the complaint through judicial review, explains what to do and what not to do in the investigative phase where most cases are decided, covers settlement and the terms that matter, and addresses the collateral consequences that should shape every strategic decision. It closes with rehabilitation and reinstatement, and with the practices that prevent a complaint from becoming a career-ending event.

Casey Scott McKayJune 19, 202426 min read

Intellectual PropertyCopyright

Copyright Registration of Photographs

Photographs are among the most-copied and least-registered works on earth, and the gap between those two facts is where photographers lose money. This guide explains why a photograph is copyrightable at all (the answer traces to an 1884 Supreme Court case about an Oscar Wilde portrait), who actually owns the copyright in a wedding shot or a corporate headshot, and how to register hundreds or even thousands of images at once using the Copyright Office's group-registration options for published and unpublished photographs. It covers the deposit rules, the all-important title list, registration timing and its dramatic effect on damages, and the metadata and copyright-management-information protections of DMCA Section 1202. It closes with the frontier questions—who owns a monkey's selfie, whether an AI can be an author, and how to deal with stock-photo demand letters—plus a practical FAQ. The goal is a single, plain-English roadmap a professional photographer, a marketing manager, or a curious lawyer can all follow.

Casey Scott McKayJune 17, 202435 min read

Real EstateConstruction

Construction Contracts and Payment Disputes: Change Orders, Delay Claims, and Mechanics Liens

Construction disputes are rarely about whether work was done. They are about whether a change was authorized, whether a delay was excusable, and whether a notice was given within the time the contract required. This article explains the machinery. It covers project delivery methods and pricing structures and how each allocates risk, then the payment chain from schedule of values through payment application, retainage, and the pay-if-paid clauses that decide who bears the risk of an owner that does not pay. It works through changes and the constructive change doctrine, differing site conditions, and delay claims including critical path analysis, concurrent delay, and no-damages-for-delay clauses. Later sections cover the implied warranty of plans and specifications, completion and warranty obligations, mechanics liens and their unforgiving notice deadlines, payment bonds and the Miller Act, and dispute resolution, with a worked example, a claims checklist, and an FAQ.

Casey Scott McKayJune 17, 202425 min read

CommercialContract

Indemnification and Limitation of Liability: The Risk Allocation Engine of Every Contract

Two clauses decide what a contract is actually worth when something goes wrong: the indemnity and the limitation of liability. Everything else describes the deal; these two describe the consequences of the deal failing. This article explains both from the ground up. It covers what an indemnity actually does, the difference between third-party indemnification and the first-party indemnity that many drafters intend but fail to create, the duty to defend and why it is separate from and often broader than the duty to indemnify, and the procedural terms that determine whether an indemnity is usable in practice. It then covers limitations of liability: the direct-versus-consequential distinction and why it is harder than it looks after Hadley v. Baxendale, cap structures including super caps and unlimited categories, the standard carve-outs and how to negotiate them, the failure of essential purpose problem under UCC section 2-719, and the state law limits on exculpation including fraud, gross negligence, and public interest doctrines. A long section covers the specific indemnities that matter in technology transactions: intellectual property infringement, data protection, and open source. It closes with drafting language, a negotiation playbook, a worked example, an FAQ, and related reading.

Casey Scott McKayJune 16, 202426 min read

Intellectual PropertyTrademark

USPTO Trademark Application Checklists: From Filing to Registration

This is the operational, filing-desk checklist for federal trademark prosecution—the tick-list you run from the moment you open the application form through to a registered, maintained mark. It walks the mechanical arc step by step: completing and submitting the base application, reading the filing receipt, monitoring status in TSDR, triaging and answering office actions on the post-2022 three-month clock, surviving publication and opposition, perfecting an intent-to-use application with a Statement of Use or extensions after a Notice of Allowance, and keeping the registration alive with Section 8, 9, and 15 filings. Every box is grounded in primary authority (the Lanham Act, 37 C.F.R., the TMEP, and the Trademark Modernization Act) and updated for the USPTO's January 18, 2025 fee overhaul, which retired the TEAS Plus and TEAS Standard tiers in favor of one base application plus surcharges, filed through the new Trademark Center. Fees change—verify current amounts at USPTO.gov before filing.

Casey Scott McKayJune 10, 202444 min read

Intellectual PropertyPatent

Patent Eligibility After Alice: Strategies for Protecting Software and Business Method Innovations

More than a decade after the Supreme Court's decision in Alice Corp. v. CLS Bank, software and business method patents still face a brutal invalidity rate under 35 U.S.C. Section 101. Yet meaningful patent protection for software, fintech, cybersecurity, and AI innovations remains achievable for those who understand the rules. This guide walks through the Alice/Mayo two-step framework and its statutory and historical roots (Chakrabarty, Diehr, Bilski, Mayo), the Federal Circuit guideposts that mark the narrow path to eligibility (Enfish, DDR Holdings, McRO, BASCOM, Finjan, and the factual twist of Berkheimer), and the USPTO's evolving examination guidance, including the 2019 Patent Eligibility Guidance, the 2024 AI update, and the precedential Desjardins decision. It then turns practical: claim-drafting and prosecution strategies grounded in labeled hypotheticals, a layered-protection portfolio plan that pairs patents with trade secrets, copyright, and design patents, the status of Section 101 reform through PERA, and a working checklist. The goal is to give judges, practitioners, and inventors alike a clear, usable map of where claims live and where they die.

Casey Scott McKayJune 8, 202454 min read

LitigationDepositions

Defending a Deposition Checklist: A Practical Checklist

Defending a deposition is one of the most consequential and least understood skills in civil litigation, because harmful testimony can decide a case on summary judgment or in settlement long before trial. This checklist walks defending counsel through the arc from the witness preparation session to the errata sheet: preparing the witness within the ethical line that separates legitimate preparation from improper coaching, controlling the record, making proper concise objections under Rule 30(c)(2) and the distinction between form and substance, knowing the three narrow grounds for instructing a witness not to answer, navigating the rules on conferring with the witness, defending the Rule 30(b)(6) corporate designee and the expert, terminating an abusive deposition under Rule 30(d)(3), and handling transcript review and the errata sheet. Each phase is paired with the reason it matters and the case law — anchored by Hall v. Clifton Precision — that punishes obstruction.

Casey Scott McKayJune 7, 202410 min read

TechnologyInternet

Website Terms of Service Review Checklist: A Practical Checklist

The enforceability of a terms of service document is decided almost entirely by the screen that presents it, not by the words inside it. This checklist reviews both. It starts with formation, walking the interface features courts actually examine, and with the evidentiary record that lets a company prove what a particular user saw on a particular day. It then reviews the substantive provisions in the order they generate disputes: dispute resolution and the mass arbitration problem, unilateral modification, acceptable use and automated access, the user content license, limitations of liability, and auto-renewal and cancellation. Later phases cover accessibility of the assent flow, minors, and the jurisdiction-specific supplements that a single global document cannot replace.

Casey Scott McKayJune 6, 20248 min read

TechnologyData Security

Responding to a Data Breach: The First Seventy-Two Hours

The first three days of a security incident set the terms for everything that follows. They determine whether the forensic investigation is privileged, whether the evidence needed to scope the incident still exists, whether the insurer will pay, and whether the notification clocks that run from discovery can be met. Most of these decisions must be made before anyone knows what happened, which is why they should be made in advance and written down. This guide runs the response hour by hour through the first seventy-two hours and the two weeks that follow, covering the sequencing of containment against preservation, the engagement structure that protects the forensic report, the ransom and law enforcement decisions, the scoping work that drives every notification obligation, and the communications that will be read by regulators and plaintiffs' counsel.

Casey Scott McKayJune 3, 202425 min read