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.

Intellectual PropertySoftware Protection

Legal Protection of Software: Copyrights, Patents, Trade Secrets, and Contracts

Proprietary software is often a company's single most valuable asset, yet no one legal doctrine fully protects it, because software is at once a literary work, a functional machine, a confidential secret, and a bundle of contract rights. This guide explains the four pillars of software protection—copyright, patent, trade secret, and contract law—in plain language, following a fictional startup's routing engine from the keyboard to the courtroom. It shows what each pillar covers, where each one fails, and how experienced counsel layer them so that one tool's blind spot becomes another tool's strength. It walks through the governing statutes and the landmark cases that shape them, from *Altai* and *Alice* to *Google v. Oracle*, *Vernor*, and *Van Buren*. It addresses who actually owns software, why a missing assignment can quietly sink a multimillion-dollar deal, and how to combine the four pillars into a coherent program. By the end, a reader with no legal training should understand not just the rules but the strategy behind them.

Casey Scott McKayJune 3, 202456 min read

CommercialFranchising

Buying a Franchise: A Practical Guide for Prospective Franchisees

Buying a franchise is buying a contract, and the contract is drafted entirely by the seller and is largely non-negotiable. The disclosure document the law requires the franchisor to give you contains nearly everything you need to evaluate the opportunity, and most buyers do not read it carefully because it arrives at four hundred pages during an emotional decision. This guide covers what to do with it: how the FTC Franchise Rule works and what the disclosure period gives you, which of the twenty-three items in the disclosure document actually predict outcomes, how to read the financial performance representation and the outlet turnover tables, what the franchise agreement's key provisions mean in practice, how to conduct real diligence including franchisee validation calls, what is genuinely negotiable, and how to structure the entity, the lease, and the financing. It closes with the entity, lease, and financing decisions that surround the purchase, a four-week evaluation schedule, and the distinct analysis that applies when buying an existing unit from a departing franchisee.

Casey Scott McKayJune 1, 202425 min read

Wills and EstatesElder Law

Special Needs Trusts and Medicaid Planning: Preserving Benefits Across Generations

Means-tested public benefits impose resource and income limits so low that any ordinary inheritance, settlement, or gift destroys eligibility, and the destruction is usually accidental. Special needs trusts exist to hold assets for a beneficiary without those assets counting as available resources, and the rules differ sharply depending on whose money funds the trust. A trust funded with the beneficiary's own money carries a mandatory Medicaid payback and strict statutory conditions; a trust funded by a parent or grandparent carries neither and is far more flexible. This article covers the benefits programs and their eligibility rules, the trust types and when each is used, drafting and administration including the distributions that quietly reduce a benefit check, and the Medicaid planning techniques available to an older adult facing long-term care costs.

Casey Scott McKayMay 30, 202426 min read

LitigationDiscovery

Litigation Hold and Evidence Preservation Checklist: A Practical Checklist

The duty to preserve evidence attaches when litigation is reasonably anticipated, which is usually before anyone has filed anything and often before counsel is retained. This checklist covers the whole lifecycle: recognizing the trigger and documenting it, scoping custodians and systems, issuing a hold notice that people can actually act on, executing the technical suspensions that make the notice real, and maintaining and releasing the hold. It gives particular attention to the sources that cause most modern spoliation findings, including collaboration platforms with short default retention, ephemeral messaging, personal devices, departed employees whose laptops are reimaged on a thirty-day cycle, and third-party cloud data. Each phase is paired with the reason it matters and the authority behind it.

Casey Scott McKayMay 28, 20249 min read

Intellectual PropertyCopyright

Work Made for Hire Determination Checklist: A Practical Checklist

Whether a work is "made for hire" decides who is the author and owner of a copyright from the very moment of creation, and getting it wrong is one of the most common and damaging mistakes in copyright practice. This checklist walks an author, hiring party, or counsel through the two and only two routes into work-for-hire status, the employee route under the CCNV v. Reid agency test and the commissioned route limited to nine enumerated categories with a signed writing, and explains the belt-and-suspenders assignment that closes the gap when work-for-hire fails. It flags the consequences for registration, ownership, and the non-waivable termination right, and the special context of contributions to a collective work. Confirm the analysis against current authority for your facts.

Casey Scott McKayMay 26, 20247 min read

Intellectual PropertyEntertainment

Entertainment and Media Production Toolkit: Rights, Talent, and Distribution

A production is a copyright, and its value depends entirely on whether the producer can prove ownership of every element inside it. A distributor's counsel reviews the chain of title document by document, and an errors and omissions insurer declines to write a policy on a picture with gaps — which means a film nobody can insure cannot be distributed regardless of its quality. This toolkit follows a production chronologically: acquiring underlying rights and building chain of title, engaging writers and talent, financing and entity structure, the clearances that must be completed before delivery, distribution and sales agreements, delivery itself, and the residual and reporting obligations that survive the production. It runs the production arc from underlying rights and option agreements through talent deals, clearance, delivery, and distribution.

Casey Scott McKayMay 26, 202413 min read

CommercialContract

Purchase Order and Terms of Sale Review Checklist: A Practical Checklist

Most companies have a purchase order form and an order acknowledgment form that were drafted years ago by someone no longer there, that have never been read against each other, and that contradict each other on every term that matters. Under UCC § 2-207 the usual result is that the conflicting terms cancel and the Code's default rules apply — which for a seller means full implied warranties and uncapped consequential damages. This checklist is a form audit: it walks each document's role in formation, the terms that must be present and how each must be drafted to survive, the process controls that decide who wins a form fight, and the master agreement approach that avoids the problem entirely above a defined threshold. This checklist audits both forms against each other, term by term, and identifies the changes that put your document on the winning side of the analysis.

Casey Scott McKayMay 25, 20249 min read

CommercialAdvertising and Marketing

Auto-Renewal and Negative Option Disclosure Checklist: A Practical Checklist

Subscription compliance is a design problem with a documentary requirement, and both halves are auditable in an afternoon. The design requirement is symmetry: whatever the signup takes in clicks, screens, seconds, and medium, cancellation takes no more. The documentary requirement is versioned screenshots of both flows, so that three years later the company can show what a particular subscriber actually saw. This checklist walks the enrollment flow element by element, then the cancellation flow with a stopwatch, then the records, governance, and metrics that a regulator or a plaintiff will ask for — and closes with the state-specific requirements that do most of the practical work.

Casey Scott McKayMay 24, 20249 min read

Intellectual PropertyTrademark

Gray Market Goods and the First Sale Doctrine: Parallel Imports, Material Differences, and Exhaustion

Gray market goods are genuine products, made by or for the brand owner, that reach a market through channels the brand owner did not authorize. Because the goods are real, the usual trademark claim fails: the first sale doctrine exhausts the owner's rights once it puts the goods into commerce. The exception that swallows a great deal of the rule is the material differences test, under which genuine goods that differ materially from the authorized domestic version are treated as different products and their sale is infringement. This article explains the three structural varieties of gray market trade identified in K Mart v. Cartier, the material differences and quality control theories developed in the First, Second, Third, Eleventh, and D.C. Circuits, the customs regime under 19 U.S.C. section 1526 including the Lever rule labeling exception, and the very different exhaustion rules that now govern copyright after Kirtsaeng and patents after Impression Products v. Lexmark. It then turns to what actually works commercially: distribution controls, serialization, product differentiation, warranty policy, and authorized dealer programs, with attention to the antitrust limits on resale price maintenance. It closes with a worked example, a program checklist, an FAQ, and related reading.

Casey Scott McKayMay 22, 202425 min read

LitigationDiscovery

Rule 45 Subpoenas to Nonparties: Service, Objections, and Motions to Quash

A subpoena is the only discovery device that reaches someone who is not in the lawsuit, and that fact drives every rule that governs it. The person receiving it has no stake in the case, did not choose to be involved, and is entitled to protection from significant expense — which is why Rule 45 contains a compliance geography, a fourteen-day objection window, a mandatory duty on the issuing lawyer to avoid undue burden, and a sanctions provision that gets used. This article covers issuance and service, the place-of-compliance rules that trip up experienced practitioners, how to object and when objecting alone is enough, motions to quash and to compel and where they must be filed, cost-shifting, privilege assertions, and the special regimes for banks, health care providers, and electronic communications providers. It closes with practical guidance for both sides.

Casey Scott McKayMay 21, 202426 min read

ImmigrationBusiness Immigration

Investor Visas: The E-2 Treaty Investor and the EB-5 Immigrant Investor Program

Two very different programs let a foreign national obtain status in the United States through investment, and choosing between them is the first and most consequential decision. The E-2 treaty investor visa is a nonimmigrant status available only to nationals of countries with a qualifying treaty, requiring a substantial investment in a real operating enterprise the investor directs, renewable indefinitely but never leading to permanent residence by itself. EB-5 is an immigrant category leading directly to a green card, requiring a defined capital investment and the creation of ten jobs, with a regional center option that permits passive participation. This guide covers eligibility, the investment and job creation standards, source of funds documentation, the process and timeline for each, and the tax consequences that should be modeled before either is filed.

Casey Scott McKayMay 21, 202426 min read

EnvironmentalPermitting

Applying for an Environmental Permit: A Practical Guide

An environmental permit is the document that makes an operation lawful, and obtaining one is a project management exercise as much as a legal one. Most programs are administered by delegated state agencies whose requirements exceed the federal floor, most applications are found administratively incomplete on first submission, and the timeline is driven by agency review cycles and public participation requirements rather than by the applicant's schedule. The decisions that determine how long it takes and what conditions result are made before the application is filed: whether the facility can be structured to stay below a major source threshold, what control technology the analysis will support, and whether the site presents a jurisdictional or community issue. This guide covers the preparation, the application itself, the review and public participation process, and the appeal and compliance obligations that follow issuance.

Casey Scott McKayMay 21, 202425 min read