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.

Real EstateLandlord Tenant

Residential Landlord-Tenant Law: Leases, Habitability, Deposits, and Eviction

Housing is the area of law where the most people have the most at stake and the least information. A residential lease is a contract, but it is a contract overlaid with statutes, an implied warranty that cannot be waived in most states, and an eviction process built for speed rather than deliberation. This article explains what a lease actually promises, where the implied warranty of habitability came from and what it requires, the four remedies a tenant has for a landlord who will not repair, how security deposits are regulated, why self-help lockouts are illegal nearly everywhere, how summary eviction works and what defenses actually win, and what happens after a judgment. It is written for tenants, for landlords, and for the lawyers and judges who see these cases in volume.

Casey Scott McKayFebruary 12, 202429 min read

LitigationDiscovery

Preparing a Privilege Log: A Practical Checklist

A privilege log is how a party justifies withholding documents in discovery, and it is one of the easiest protections to forfeit. This checklist walks through confirming the privilege actually applies, planning the log at the Rule 26(f) conference under the December 1, 2025 amendments, choosing between document-by-document and categorical logging, drafting descriptions that say enough and no more, handling inadvertent production and clawback, and signing and serving the log to avoid waiver. It pairs each step with the governing authority—Fed. R. Civ. P. 26(b)(5), the Upjohn and Hickman foundations, FRE 502(b) and 502(d), and the Burlington Northern factors—and flags the traps that turn a log meant to protect the privilege into the instrument that waives it. It is general information, not legal advice; rules and local practice vary.

Casey Scott McKayFebruary 7, 20249 min read

LitigationCivil Procedure

Civil Procedure Toolkit: Pleadings, Jurisdiction, Preclusion, and Deadlines

Most civil cases are decided by rules rather than by facts, and the rules that decide them cluster at the beginning and the end. This toolkit runs the procedural spine of a federal civil case in the order it is encountered: the jurisdictional and venue questions that determine where the case lives, the limitations analysis that must be done before anything is filed, the pleading standards that decide whether a complaint survives, the answer and counterclaim decisions that waive defenses if made carelessly, the schedule and its amendment deadlines, and the preclusive effect the resulting judgment will have on everything related. Each stage identifies what must be preserved and when it is waived. It finishes with preclusion and appellate preservation, the two doctrines that decide what a judgment is worth after the case is over.

Casey Scott McKayFebruary 3, 202412 min read

Labor and EmploymentHealth and Safety

OSHA Compliance and Workplace Safety Enforcement

Safety enforcement is one of the few regulatory regimes where an inspector can arrive without notice, walk the floor, interview employees privately, and issue penalties based on what a supervisor says in the first ten minutes. This article explains the system and how to be ready for it. It covers the statutory structure, the general duty clause that reaches hazards no standard addresses, and the standards that generate the most citations year after year. It then walks recordkeeping and the reporting deadlines that are measured in hours, the anatomy of an inspection from the opening conference through the closing conference, and the citation classifications that determine penalty exposure. Later sections cover contesting citations, abatement and settlement, multi-employer worksite liability, state plan differences, criminal exposure, and the anti-retaliation provisions that turn a safety complaint into an employment claim, with a worked example, a program checklist, and an FAQ.

Casey Scott McKayFebruary 2, 202425 min read

Intellectual PropertyTrademark

How to Conduct a Comprehensive Trademark Clearance Search

A comprehensive, practitioner-grade guide to trademark clearance—the discipline of confirming a proposed mark is available for use and registration before a brand is built on it. The article moves from the quick knockout search through the full search of state registrations, common-law uses, domains, and social handles, then through likelihood-of-confusion analysis under the DuPont, Sleekcraft, and Polaroid factors, clearing across the 45 international classes, risk categorization, and the proceed/modify/abandon decision. It explains how a documented clearance opinion from counsel functions as a shield against willful-infringement findings, how to address conflicts through consent and coexistence agreements, and how foreign clearance and the Madrid Protocol fit into an expansion strategy. It reflects the USPTO's retirement of TESS in favor of the cloud-based Trademark Search tool and is written for founders, in-house counsel, and trademark practitioners.

Casey Scott McKayFebruary 2, 202445 min read

Intellectual PropertyCopyright

Registering a Copyright in a Website: A Practical Checklist

A website is not a single copyrightable thing but a bundle of separate works, text, images, video, sound, and code, each with its own author, owner, and registration path. This checklist explains how to register the right components the right way: auditing ownership, classifying content as published or unpublished, registering crown-jewel content individually, batching the rest through the group options (GRTX, GRUW, group photographs), registering the software separately, and capturing the site arrangement as a compilation or collective work where you fully own everything. It covers the constant-updating problem and the derivative-version rule, deposit format, and the timing that drives statutory damages. Verify current group caps and fees at copyright.gov before filing.

Casey Scott McKayFebruary 1, 20246 min read

LitigationSanctions

Litigation Sanctions and Professional Responsibility Toolkit

Sanctions in civil litigation come from four distinct sources that reach different conduct, carry different standards, and are lost in different ways — and conflating them is why most sanctions motions fail before anyone reaches the merits. This toolkit separates them, sets out the procedure each requires, and then addresses the professional responsibility obligations that operate alongside and independently: candor to the tribunal, the duty to disclose adverse controlling authority, conflicts, confidentiality, and supervision. It closes with the practices that prevent exposure entirely, including the citation verification discipline that recent enforcement has made unavoidable, and the steps to take when a motion arrives. It closes with citation verification and the generative AI problem, now the fastest-growing category of sanctions in federal court.

Casey Scott McKayJanuary 31, 202412 min read

Intellectual PropertyTrademark Litigation

Daubert Challenges to Consumer Survey Experts in Trademark Litigation: A Practical Guide

Consumer surveys are among the most powerful--and most attacked--forms of evidence in trademark litigation, and the motion that decides their fate is the Daubert challenge. This guide explains, in plain language for both lawyers and business owners, how the gatekeeping framework of Daubert, Joiner, Kumho Tire, and Federal Rule of Evidence 702 (as amended in 2023) governs the admissibility of survey, damages, and technical experts. It covers what a valid trademark survey requires, the recurring battle over whether methodological flaws go to weight or admissibility, the most common grounds for excluding or discounting survey testimony, the difference between the Eveready and Squirt survey formats, how courts in the Second Circuit and the Eastern District of New York actually treat these challenges, whether a damages expert can be excluded for failing to apportion, and how Kumho extends the analysis to non-scientific experts. It closes with two worked hypotheticals, a litigation checklist, and an FAQ for both the challenger and the proponent.

Casey Scott McKayJanuary 29, 202441 min read

Intellectual PropertyPatent

General Information Concerning Patents

This is the broad, plain-English overview of the U.S. patent system — what a patent is, the constitutional bargain behind it, and how it differs from copyrights and trademarks. It walks through the three kinds of patents (utility, design, and plant), the four statutory gates every invention must pass (eligibility and usefulness under 35 U.S.C. 101, novelty under 102, non-obviousness under 103, and adequate disclosure under 112), and what can and cannot be patented after Alice and Mayo. It maps the journey of an application from invention disclosure through provisional and nonprovisional filing, examination, allowance, issuance, maintenance fees, and international protection via the Patent Cooperation Treaty. It explains the AIA's first-inventor-to-file rule, patent term and term adjustment, and the post-grant procedures (inter partes and post-grant review) that let the public challenge issued patents. Finally, it explains the rights a patent actually grants, how marking and "patent pending" work, and the basics of enforcement. Think of it as the trailhead: a single map of the whole territory, with links to deeper guides on each leg of the trip.

Casey Scott McKayJanuary 28, 202457 min read

Intellectual PropertyCopyright

Copyright Registration of Games

Games occupy one of the strangest crossroads in intellectual property law: the single most valuable thing about a game—its rules, its mechanics, the clever way it makes players think—is the one thing copyright flatly refuses to protect. This guide explains the classic and unyielding rule that game ideas, systems, and methods of play are not copyrightable, traces it from Baker v. Selden through Section 102(b), and walks through what copyright actually does protect: the artwork, the text, the audiovisual displays, the code, and the particular expression an author pours into a game. It covers how to register the many separate components of a board game or video game with the U.S. Copyright Office, including the deposit and identifying-material rules that trip up tabletop publishers, the choice among application types, and the litigation tools—substantial similarity, the abstraction-filtration-comparison test, scènes à faire—that decide cloning disputes. Anchored by the leading "look and feel" decisions in Tetris Holding, LLC v. Xio Interactive, Inc. and Atari v. North American Philips, the guide uses vivid examples from Pac-Man to Tetris to Monopoly to make a notoriously slippery area of law concrete. It explains why developers must reach for trademark, patent, and trade dress to fill the gaps copyright leaves wide open. It is written for game designers, developers, founders, and the lawyers who advise them.

Casey Scott McKayJanuary 26, 202451 min read

Wills and EstatesEstate Planning

Wills, Trusts, and Estate Planning Basics

Estate planning is not about death taxes, which affect a very small number of families, and it is not only for the wealthy. It is about who decides for you when you cannot, who receives what you own, how much of it is consumed by process, and whether the people you leave behind spend a year in court. This article explains the core documents and what each one actually does. It covers intestacy and why the state's default plan rarely matches anyone's intent, wills and their formalities, probate and what it costs, and the revocable living trust including the funding step that people skip and that makes the trust useless when they do. It explains the incapacity documents that matter more often than the death documents, the beneficiary designations and titling that override the will entirely, and guardianship nominations for minor children. A second half addresses the federal estate and gift tax framework, the step-up in basis, portability, lifetime gifting, irrevocable trusts and when they make sense, retirement account rules after the SECURE Act, digital assets, and business succession. It closes with a document checklist, a worked example, an FAQ, and related reading.

Casey Scott McKayJanuary 23, 202425 min read

LitigationMotions

Summary Judgment Motion Checklist: A Practical Checklist

Summary judgment is decided on a record and on compliance with a local rule, and most motions are lost on the second of those. This checklist covers the whole sequence: deciding whether to move at all, building the record during discovery, drafting the statement of undisputed facts that carries the motion, handling evidence and objections under the post-2010 framework, and preserving the ruling for appeal. It gives separate phases to the moving and opposing sides, because the failure modes differ, and it flags the two Supreme Court decisions that determine what survives a denial. Used during discovery rather than after it, the checklist doubles as a plan for the evidence the motion will need.

Casey Scott McKayJanuary 21, 20248 min read