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 PropertyPatent Litigation

What Constitutes Patent Infringement: Claims and Defenses: A Practical Guide

A patent infringement claim is a federal lawsuit asserting that another party is practicing a patented invention without authority. This guide explains, in plain language for accused businesses, patent owners, and the lawyers who advise them, what actually constitutes patent infringement and how infringement claims and defenses work in U.S. federal court. It begins where every infringement analysis begins—the patent's claims and the all-elements rule—and then explains the types of infringement (direct under 35 U.S.C. 271(a); induced and contributory under 271(b)-(c); divided infringement after Akamai; and the special categories in 271(e), (f), and (g)), the pivotal role of claim construction under Markman and Phillips, and literal infringement and the doctrine of equivalents under Warner-Jenkinson and Festo. It surveys the full bench of defenses—non-infringement, invalidity (Sections 102, 103, 112, and 101), inequitable conduct, license and exhaustion, and equitable estoppel—and the remedies, from a Georgia-Pacific reasonable royalty and Panduit lost profits to enhanced damages for willfulness under Halo, attorney's fees under Octane, and injunctions under eBay. A running hypothetical—an encryption-key startup that receives a cease-and-desist letter—anchors the analysis, and the guide closes with an FAQ, a reference table of leading authorities, and practical takeaways.

Casey Scott McKayMarch 27, 202461 min read

CommercialAgriculture

Agricultural Law: Land, Crops, Livestock, Credit, and the Statutes That Govern the Farm

Farming is one of the most heavily regulated businesses in the country and one of the least served by general business law. This article maps the field: the land tenure arrangements that govern most American farmland, the right to farm statutes and the nuisance disputes they were built for, the agricultural liens and statutory trusts that determine who gets paid when a buyer fails, the federal crop insurance and program payment systems that are frequently a farm's largest revenue line, the specialized bankruptcy chapter Congress built for family farmers, and the regulatory layers covering pesticides, organic certification, food safety, water, labor, and animals.

Casey Scott McKayMarch 27, 202428 min read

LitigationOther Specialist Litigation

Defamation, Business Disparagement, and Online Reviews

Every business eventually confronts a review, a post, or a statement that is false and damaging, and the instinct to sue is almost always stronger than the case. This article explains what defamation law actually requires and what it does not reach. It covers the elements, the crucial line between fact and opinion, and the fault standards that turn on whether the plaintiff is a public figure, a limited purpose public figure, or a private person. It then covers damages, including the per se categories that dispense with proof of loss, and the adjacent torts of trade libel and tortious interference that often fit a business dispute better. Later sections address the practical realities of online speech: Section 230's protection for platforms, the procedure for unmasking anonymous speakers, anti-SLAPP statutes and their fee-shifting consequences, retraction statutes, the Consumer Review Fairness Act, and why injunctions are rarely available, with a worked example, a response playbook, and an FAQ.

Casey Scott McKayMarch 23, 202425 min read

CommercialContract

Electronic Signature Implementation Checklist: A Practical Checklist

Electronic signatures have been legally valid for twenty-five years, so validity is not the compliance question. Attribution is: proving that a particular person made the mark, years later, after the platform was replaced. This checklist builds a program around that reality. It tiers documents by risk and assigns a signing method to each, sets the credential and authentication controls that make attribution provable, specifies what the audit trail must capture and where it must be retained, handles the consumer consent process that most companies implement incorrectly, and enumerates the document categories that must still be executed on paper. It closes with signature authority controls and the vendor transition planning that preserves the evidence.

Casey Scott McKayMarch 22, 20249 min read

Real EstateLandlord Tenant

Lease Review and Eviction Response Checklist: A Practical Checklist

A two-sided checklist for residential tenancies. The tenant side runs lease review clause by clause, the move-in documentation that decides deposit disputes, the written repair request sequence, the remedy decision, notice review for defects, the answer and hearing preparation, and deposit recovery. The landlord side runs lawful screening and FCRA compliance, a compliant lease, repair response that defeats a habitability defense, the notice audit that prevents the most common fatal defect, filing prerequisites, and deposit itemization. A shared section covers settlement terms worth trading and record sealing.

Casey Scott McKayMarch 21, 20249 min read

Labor and EmploymentContracts

Independent Contractor or Employee? Worker Classification Under the FLSA, the IRS Test, and State ABC Laws

Calling a worker an independent contractor does not make them one. Whether a worker is an employee is decided by tests that differ by statute, by agency, and by state, which means the same person can be an independent contractor for one purpose and an employee for another, at the same time, doing the same work. This article explains each of the tests that actually matter: the economic reality test under the Fair Labor Standards Act and the Department of Labor rule that restated it, the common law control test the IRS applies for employment taxes, the common law agency test the Supreme Court adopted in Darden for statutes that do not define employee, the ABC test that California, Massachusetts, New Jersey, and other states apply, and the National Labor Relations Board's shifting standard. It explains what each test asks, where they diverge, and which facts move the analysis. It then covers the consequences of getting it wrong, which extend well beyond back wages to payroll taxes, benefits, workers compensation, unemployment insurance, and intellectual property ownership, and it explains the Section 530 safe harbor that can eliminate federal tax liability entirely. It closes with a classification audit, a worked example, an FAQ, and related reading.

Casey Scott McKayMarch 21, 202425 min read

Real EstateConstruction

Managing a Construction Project from the Owner's Side

An owner building a project is buying a promise about the future from parties whose interests diverge from the owner's the moment anything goes wrong. Almost every construction dispute traces to a decision made before the first shovel — the delivery method, the allocation of design responsibility, the way the price was structured, and what the contract said about time. This guide covers the owner's side in sequence: selecting a delivery method and understanding what each one does to risk, engaging the design professional, structuring the price, the contract provisions that decide claims, running the payment and lien waiver process, handling changes and delay, closing out the project, and resolving disputes. It is written for owners who build occasionally rather than continuously.

Casey Scott McKayMarch 18, 202425 min read

Real EstateCommercial Ownership

Title Review and Real Estate Closing Checklist: A Practical Checklist

Real estate closings fail on items that were disclosed weeks earlier in a document nobody read line by line. The title commitment's Schedule B-I is a task list with owners and dates, and its Schedule B-II is a set of risks that must each be classified as acceptable, requiring information, requiring cure, or deal-affecting. This checklist converts both into a working process, adds the survey ordering and Table A selections that reveal the problems a title search cannot, sets out the endorsements worth buying in a commercial transaction, and runs the closing itself — including the wire verification step that prevents the most common uninsured loss in the industry. It ends with the funding, recording, and policy review that confirm the cure actually happened.

Casey Scott McKayMarch 14, 20249 min read

TechnologyCopyright and Consumer Rights

Unlocking Cell Phones: The Law and the DMCA Exemption

Unlocking your cell phone so it works on another carrier's network is legal in the United States today, but the path to that simple sentence runs through one of the strangest detours in modern copyright law. For a brief stretch beginning in January 2013, unlocking a phone without your carrier's blessing was arguably a federal copyright violation under the Digital Millennium Copyright Act's anti-circumvention rules, after the Copyright Office declined to renew a long-standing exemption. A record-breaking White House petition and a rare burst of bipartisan agreement produced the Unlocking Consumer Choice and Wireless Competition Act of 2014, and the exemption has been renewed in every triennial rulemaking since. This article tells the full arc, explains how Section 1201 and the triennial process actually work (including the deep circuit split over whether circumvention must have any connection to copyright at all), and untangles the often-confused trio of unlocking, jailbreaking, and rooting. It closes with worked examples, an FAQ, and a look at how all of this connects to the broader right-to-repair movement.

Casey Scott McKayMarch 12, 202447 min read

Intellectual PropertyTrademark Litigation

TTAB Discovery: A Practical Checklist

Discovery is the engine of every contested opposition or cancellation before the Trademark Trial and Appeal Board, but it runs on its own rules—an administrative timetable, hard numerical caps, mandatory cooperation, and a paper trial in which the discovery you obtain becomes much of the evidence. This checklist walks counsel and self-represented parties through the discovery conference and initial disclosures, the 180-day discovery period, sequencing interrogatories, requests for production, and requests for admission within the uniform 75-request caps, expert disclosure, the standard protective order, motions to compel, and building the DuPont likelihood-of-confusion record. WHY notes and traps accompany each phase. Stated as amended through the 2017 rules; verify current 37 C.F.R. Part 2 and TBMP guidance before relying on any limit or deadline.

Casey Scott McKayMarch 12, 20248 min read

Intellectual PropertyCopyright

Fair Use After Warhol: A Practical Guide to the Four Factors in the Age of AI

Fair use is the most important and least predictable doctrine in American copyright law, and the Supreme Court's 2023 decision in Andy Warhol Foundation v. Goldsmith changed how the first factor works without changing a word of the statute. This guide explains the four statutory factors of 17 U.S.C. section 107 one at a time, in plain English, and shows how Warhol narrowed "transformative use" by refocusing courts on the specific use challenged rather than the new work as a whole. It traces the doctrine from Justice Story's 1841 opinion in Folsom v. Marsh through Campbell, Harper and Row, Sony, Google v. Oracle, and the appropriation-art cases, then applies the framework to software, search, news, education, and parody. A long section addresses the question every technology company is now asking: whether training a generative AI model on copyrighted works is fair use, and what the 2025 district court decisions in Bartz v. Anthropic, Kadrey v. Meta, and Thomson Reuters v. Ross actually held. The guide closes with a step-by-step method for running a fair use analysis before you copy, a worked example, litigation-posture advice on burdens and summary judgment, an FAQ, and related reading.

Casey Scott McKayMarch 11, 202440 min read

LitigationEvidence

Capturing the Web: A Practitioner's Guide to Authenticating Website Screenshots as Evidence in Federal Court

Website screenshots, archived pages, and social media posts now appear in almost every federal case, yet attorneys routinely lose this evidence by failing to lay a foundation. This guide follows a single false-advertising dispute as counsel tries to prove what a competitor's website says today, said two years ago, and admitted in a social media post. It walks through the Rule 901 authentication threshold and the landmark Lorraine v. Markel framework, the methods for authenticating current captures (witness testimony, distinctive characteristics, forensic tools, hash values, and Rule 902(13)/(14) self-authentication), the Wayback Machine problem under Weinhoffer and Gasperini, the attribution challenges of social media after Griffin, Tienda, and Vayner, the best evidence rule for electronically stored information, and the hearsay rules unique to web content. It incorporates the current status of Proposed Federal Rule of Evidence 707 on machine-generated evidence, whose comment period closed in February 2026, and the proposed deepfake rule, Rule 901(c). It ends with a capture-to-courtroom checklist and a practitioner FAQ.

Casey Scott McKayMarch 11, 202444 min read