Texas Chooses Intolerance over Harsher Bigotry
This past session, Texas legislators looked into the abyss and then turned away. But only barely. Texas teetered on the verge of becoming the only state to ban gays, lesbians, and bisexuals from serving as foster parents before the Senate pulled back from an amendment to legislation pending in the Statehouse. Instead of staining Texas as the most intolerant state in the union with regard to the rights of its gay and bisexual citizens, Texas legislators chose merely to give its voters the choice of amending the Texas Constitution to ban civil unions for gay Texans.
Case Updates
Recent rulings of interest to you and your practice.
Marriage and the Transgendered Person
In last month's newsletter, we discussed two 1970s New York decisions that held marriages between transsexuals and persons of their birth sex to be invalid. No recent cases on this issue have been brought in New York, so we are left to ponder what would be the outcomes of those cases in present-day New York. Recently, however, the Florida Court of Appeal relied on those old New York cases -- Frances B. v. Mark B.</i>, 78 Misc. 2d 112 (1974) and <i>Anonymous v. Anonymous</i>, 67 Misc. 2d 982 (1971) -- when it decided that marriage in Florida between a female-to-male transsexual and woman was invalid at its inception. In light of recent social trends in the State of New York, was that reliance justified?
Introduction
In divorce situations, nothing -- not even the question of who gets the house -- can compare to the importance of the question of how custody of the children will be worked out. Some lucky families will be able to work together toward the optimum solution for all concerned, with a willingness to be flexible that will keep the arrangement working smoothly for years. Other parents, however, will be at odds, due to real concerns for the children and the parents' relationship with them, or even from sheer animosity toward one another. In this special issue focusing on custody, we look at the some things all parents in custody battles should consider as well as some things that will affect only a smaller percentage of parents.
How to Represent the Non-Biological Parent in a Custody Fight
Representing the non-biological parent in a custody dispute today is an uphill struggle. There are only three classes of people under New York statutory law who may seek custody of or visitation with children: parents, siblings, and grandparents (DRL '' 70-72). All others have no standing. And under current case law, biological strangers are legal strangers.
Parent Testimony in Custody Disputes
Over the years, I have helped prepare many parents to testify in custody matters. In that time, I have discovered crucial areas of preparation that will help produce a competent and confident witness. Parents need guidance on: 1) attitude; 2) behavior; and 3) basic custody topics they should be prepared to discuss. Most lawyers manage to include parts of these three areas when preparing their clients for trial, but frequently, the approach is scattered. The instructions are fine as far as they go, but there are holes in the preparation that, if stumbled into, will certainly trip up and unnerve a witness. School your client on the following elements of testimony and the chances of a favorable outcome will be greatly increased.
International Parental Child Abduction
When resolving custody issues between international parents, counsel should address the issue of international travel and should use their best efforts to prevent international parental child abduction. In my practice, I assist attorneys and clients around the world to prevent children from being abducted overseas and to seek their return if they have been abducted. Preventing child abduction is obviously far better than trying to recover abducted children from countries that do not recognize an obligation to reunite families. Unfortunately, clients often seek help too late, lawyers often do not recognize the severity of the situation or do not know what steps to take, and judges often fall back on concepts such as international comity to justify a refusal to issue the necessary orders.
Is It a Mark Or Not? Strategies for Overcoming Refusals Based on Genericness, Ornamentation and Functionality
While most trademark practitioners are prepared to handle an initial refusal to register a mark from the U.S. Patent and Trademark Office ("PTO") based on likelihood of confusion or descriptiveness grounds, many are considerably less comfortable responding to refusals in which the PTO challenges whether a particular mark even qualifies for trademark status. Such refusals are often based on genericness, ornamentation, or functionality grounds. Strategies for overcoming such refusals are discussed in detail below.
Time-Dependent Claim Terms Remain Stuck in the Past
In a decision that is certain to impact both patent prosecution and patent litigation strategies, the U.S. Court of Appeals for the Federal Circuit recently ruled that the literal scope of claims reciting time-dependent claim terms is limited to the technologies existing at the time of the invention. <i>See PC Connector Solutions LLC v. Smartdisk Corp.</i>, 406 F.3d 1359 (Fed. Cir. 2005). Further, the court stated that such claims would not be infringed by later arising technology even under the doctrine of equivalents. This case, in combination with the Federal Circuit's earlier decision in <i>Kopykake Enterprises, Inc. v. The Lucks Company</i>, 264 F.3d 1377 (Fed. Cir. 2001), demonstrates that patent practitioners must be extremely careful when using words such as "conventional," "normal," "standard" or "traditional" in the claims or in specification definitions of claim terms. On the other hand, those accused of infringement should argue for the inclusion of such terms during claim construction, particularly when the accused device comprises technology developed after the invention date of the patent-in-suit.
