Legal

Greetings to all:

Yes this is me again. I haven’t been assassinated yet. In case you′re a new reader, I’m known as the revealer of rogue police tactics and procedures. I have dedicated my life to revealing all rogue cops and their illegal injustices. In case you asking why, it’s because I was a former rogue cop who issued unjust citations and perform illegal arrests. I did what I saw other cops do and never questioned these other cops about it. I simply joined the blue wall of brotherhood.

This question was asked of me tonight and I thought it good to answer this question to all.

A city police officer is commisioned to follow all laws in his jurisdiction. This means within the city limits of the city. He cannot venture outside the city limits to arrest, stop, or questioned any person except under one circumstance. He can go outside his jurisdiction if a crime or violation first occurred within his area and proceeded into another jurisdiction (called hot pursuit. Please read my other article about jurisdiction). He is only authorized to perform his oath for that citys’ laws and ordinances. He cannot get involve with civil matters. He can only deal with criminal matters. His powers therefore are strictly limited.

A sheriff officer or deputy is actually much more powerful. It does’nt seem so but it is. The sheriffs’ power extends through out the entire county or as in Louisiana, the entire parish.

Say for instance that you reside in Cook County, the County that Chicago is centered in. A Chicago police officer can only enforce the laws in the city of Chicago, that is, within the city limits. But the Cook County Sheriff’s Department can enforce the laws within Cook County. This may be outside the city limits of Chicago. He can also enforce the laws within Chicago’s city limits. They have broad range.

But usually, they perform civil matters such as evictions, warrants, and other civil matters. But the sheriff patrols often outside the city limits. They have much more jurisdictional power than city police officers.

It’s very rare to see a sheriff officer citing a driver for a traffic violation in the city. It’s also even more rarer to observe a city cop issuing a citation outside the city limits.

Remember this, you shoud′nt be violating the law in or outside the city limits. But I think it’s important that you know that sheriffs are police officers also, with a much wider range.

Read my book called COP OUT, and many of your questions might be answered. Drive safe, obey the laws, and arrive home safe.

This author submits professional articles to ezinearticles.com ezinearticles.com His articles informs citizens about how to handle different situations when confronted by the police. He is a former award winning police officer. Mr. Davis is an authorize speaker to young police recruits in Louisiana. He is also a master in wilderness suvival. He studied criminal law at Loyola University in New Orleans, Louisiana. In addition, Mr. Davis has been a featured guest on many television shows detailing how to detect rogue police officers as well as a defense against such officers. This author is also working with author Stephen Peach, the award winning ex swat officer of California, and author Mike Madigan. These two authors have also dedicated their lives to expose rogue cops. Mr. Davis will be at Barnes and Noble, CitiPlace Ct., in Baton Rouge, Louisiana at a book signing on April 14, 2007, from 1:00pm - 2:00pm.

Now that you have bought your property in the Languedoc,and are thinking of turning it into a Gite, you may consider having a swimming pool to attract more income and more clients into your Gite. Here are the laws surrounding swimming pools.

Everyone should be aware of the law governing pool security in France. It is the law and despite many arguments against it, all in-ground pools in France must now have one of the four approved methods of security system in place. The fine for not complying with the law is €45,000.

Above-ground or semi in-ground pools are not affected by the law and normally just rely on a security ladder or one that gets taken away when the pool is not in use.

The law has been specifically put in place to protect children under five years old but anyone with children will understand that no security device, no matter how well approved can replace the vigilance of a responsible adult at all times.

The law was originally passed on Jan 1 2003. To comply with the law, the standards for pool security systems have been set by AFNOR (the body responsible for French safety standards) so that any method of security fitted must conform to the specifications set out in each category of security device.

There are four types of approved security system:

1. Security Barriers, AFNOR standard: NF P 90-306.
2. Pool Alarms, AFNOR standard: NF P 90-307.
3. Pool Covers, AFNOR standard: NF P 90-308.
4. Pool Abris, AFNOR standard: NF P 90-309.

Any security device can either be self certificated by the manufacturer who declares that it has made the system in accordance with the AFNOR standard, or certificated by the manufacturer and also certified and tested by the LNE (Laboritoire National d’Essai). Any device tested by the LNE will be given its own certification number, it’s considered to be homologated (agreed to) and will carry the NF mark.

1 Security barriers
There are dozens of types of pool security fencing now available in France. There are flexible mesh barriers, metal barriers, UPVC barriers, Perspex and transparent PVC panelled barriers and wooden fences. Although not everyone’s cup of tea, a barrier is one of the best options for pool security.

Note that no natural boundaries can be considered as a security barrier eg: hedges, banks, ditches etc. Neither will any other sort of fencing not specifically made as a pool security system, no matter how impenetrable it is.

For collective usage pools (pools used by more than one family) particularly gites, campsites and so on, there must be a self-closing, self-latching gate which opens outwards away from the pool. Most systems available have this type of gate as standard.

For private pools a barrier system can be fitted with a manually operated gate, but it makes sense if you are going to have a go, to fit a child-proof latch, as high as you can out of reach of little ones.

The main advantage of a barrier is that it needs very little maintenance or testing, so once it’s installed you can pretty much forget about it. As long as any gate fitted is tested occasionally, it doesn’t rely on anyone else doing anything apart from opening the gate.

Another option for a barrier is of course, a wall. There are important parts of the standard that must be adhered to, the most important of these is the barrier must be further than 1m from the edge of a pool, and be over 1.10m high. There must also be no foot holds so natural stone walls are not legal, but a smooth rendered wall is quite acceptable.

The AFNOR standard also states that the barrier must not be so far away from the pool so as to be ineffective, in other words if you fit a wall all around your property it won’t be deemed as secure as the house is inside the protected area. This all gets very complicated and in many cases the best thing to do is protect the pool area only and make it a designated area for swimming only.

Another great advantage of a wall is that it will keep a lot of debris out of the water and it really does define the pool area.

One disadvantage is that it does reduce visibility from outside the pool.

2 Pool alarms
Alarms come in two main types, immersion detector or perimeter alarm. The immersion detector senses a fall into the pool and then must activate within 12 seconds. The perimeter alarm works by infra red beams, when broken the alarm sounds. These systems, although approved, are not the best option for pool security and are best used in conjunction with another approved device.

There are many downsides to using an alarm system: some alarms require wristbands or keys to be worn by swimmers, others need a code to be entered which disarms the alarm while people swim. They don’t work under a cover so need to be removed if you want to winterise your pool.

There are also some grey areas. Alarms must be tested monthly, they are susceptible to false alarms and the AFNOR standards state that a responsible adult must be able to respond to an alarm in less than three minutes. Although a five year old should have an adult with them at all times, if they don’t and there is a fatality, ultimately the responsibility lies with the pool owner.

The only benefit is cost. But the cheapest option is very rarely the best one.

3 Pool covers
As with the other options, there are lots of different security covers available, so the main thing to remember is that whichever sort of cover you choose, it must be put back on whenever your pool is left unattended, so a cover which is easy to put on and take off is important, especially if you expect anyone else using the pool to put the cover on when they aren′t using it.

Any cover used to winterise your pool must also be AFNOR approved (unless you have an alternative form of security),so if your cover is more than three years old the chances are that it won′t be approved and will need changing.

There are covers which do the job of a security system, summer and winter cover and are even available solar or mains powered so all you have to do is turn a key to operate them.

4 Pool abris
An abri looks a bit like a greenhouse and they are available in many shapes and sizes, fixed or telescopic. Apart from the price, (this is about the most expensive option) there are many advantages. As well as it being an approved security device, it will help heat the water in your pool, keep out debris, reduce chemical usage and evaporation, and if you heat your pool, it effectively turns it into an indoor pool you can use all year round.

The main disadvantage to fitting an abris is the cost. A low fixed abri, although cheaper, doesn’t give a lot of room underneath and some people find them claustrophobic: high abris, normally up to 3m tall give plenty of space but also need a great deal of room to install them.

Whichever system you choose, it should be practical and easy to use, and your local pool professional should be able to advise you on the pros and cons of each system and discuss the suitability of each system in your particular application.

(You are advised to get Professional opinion on the Law for swimming pools in France)

The author lives and works in Paradise- in the Aude, Languedoc. I own a Gite which is available throughout the year.
Further information find-gite-aude.com find-gite-aude.com

A ground-breaking decision was delivered by the Court of Appeal in the cases of Aerotel Ltd v Telco Holdings Ltd (and others) [2006] and Macrossan’s Application [2006] on 27 October 2006. This important decision means that there is now a new method by which patent examiners will assess whether or not an invention is patentable. The decision is especially relevant to those wishing to patent ‘business methods’ or ‘computer programs’.

A patent is effectively a legal monopoly for a process or product. When granted a patent, the patent holder will be exclusively allowed to exploit a patented product or process for the life of the patent. When a patent is applied for, the patent examiners must ensure that the product or process which is the subject matter of the patent application meets the test for patentability. Up until this ground-breaking ruling, the test was extremely complicated to apply in practice due to the large amount of case law dealing with the interpretation of the appropriate legislation. Now the test has been concisely summarised by this decision.

The Legislations: There are two main pieces of legislation which had to be interpreted by the courts to provide the basis for the test of patentability. These are s1(2) of the Patents Act 1977 and its equivalent European legislation, namely Article 52(2) of the European Patent Convention (“EPC”). Both pieces of legislation outline what is excluded from patentability.

The wording used in the Patents Act 1977 is different to the wording used in the EPC. So far as relevant, s.1 reads:

(2) It is hereby declared that the following (among other things) are not inventions for the purposes of this Act, that is to say, anything which consists of:

(a) a discovery, scientific theory or mathematical method

(b) a literary, dramatic, musical or artistic work or any other aesthetic creation whatsoever;

(c) a scheme, rule or method for performing a mental act, playing a game or doing business, or a program for a computer

(d) the presentation of information;

but the foregoing provision shall prevent anything from being treated as an invention for the purposes of this Act only to the extent that a patent or application for a patent relates to that thing as such. Whereas the Article 52 EPC, so far as relevant, reads:

(1) European patents shall be granted for any inventions which are susceptible of industrial application, which are new and which involve an inventive step.

(2) The following in particular shall not be regarded as inventions within the meaning of paragraph 1:

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

Although no-one has yet expressly suggested that the difference in wording would result in a difference in practice, to ensure absolute consistency with other EPC contracting states, the court primarily focussed on examining how the European legislation has been interpreted. The reason for doing this was cited as follows:

“The difference in wording has at least the potential to lead to an erroneous construction of a provision which is intended to have the same meaning as that of the EPC… Working using the EPC text obviates that risk”

Background: The issue arising in Aerotel Ltd v Telco Holdings Ltd [2006] relates to the patent of a business method. Aerotel held a UK patent for a telephone system which allows the user to make a call from any available phone and have the cost of this call billed from the credit relating to this account. Once this credit runs out, the call would be disconnected. Aerotel believed that Telco had infringed their patent, and sued them. Telco counterclaimed to have Aerotel’s patent revoked. Aerotel had their patent revoked by summary judgment on 3 May 2006. They are now appealing to have it reinstated.

In Macrossan’s Application [2006], they applied for a UK patent for a computer program. The software allows users to obtain all the necessary legal documentation for the incorporation of a company. The users answer questions asked by a remote server and from their answers the appropriate forms are compiled and filled in automatically. The users are then sent the documents. In the initial application, the UK Patent Office took the view that the subject matter of the patent was unpatentable. Mr Macrossan has now appealed to have the application reviewed.

The new 4 Stage Test: The decision introduced a new 4 stage test in establishing whether an invention is patentable. The UK Patent Office is of the opinion that this decision should be treated as the definitive way in which the law on patentable subject matter of an invention is to be applied in the UK. This substantially reduces the need to refer back to previous case law. The new 4 stage test to be used by patent examiners is consistent with previous UK judgments and is as follows:

Step One: Properly construe the claim. This new first step is designed to make the examiners establish what monopoly would be created were the patent to be granted. Once the monopoly has been identified, the examiners will then go on to ask whether the monopoly is in an excluded class of monopolies:-

o If the monopoly is in an excluded class, then the first step would fail.

o If the monopoly is not in one of the excluded classes, then the first step would be passed.

Step Two: Identify the actual contribution. The purpose of this step is to allow the patent examiners to identify categorically what an inventor has contributed to the stock of human knowledge through the creation of his or her invention. It is the substance of the invention which requires the consideration. The invention is looked at as a whole. As long as the overall substance of the invention, when it is considered in its entirety, contributes suitably to the stock of human knowledge, the second step will be passed. In the end the test must be what contribution has actually been made, not what the inventor says he has made.

Step Three: Ask whether it falls solely within the excluded subject matter. This third step is intended to establish whether the invention is comprised of solely unpatentable subject matter. There is a list of matters which will not be afforded patent protection under Article 52(2) of the EPC. These are outlined above. If the invention in question falls:-

o wholly within excluded subject matte, it would fail the third step

o only partly within excluded subject matter, it would pass

o outside all the categories of excluded subject matter, then it would also pass.

Step Four: Check whether the actual or alleged contribution is actually technical in nature. The final step is relatively simple in comparison to the previous three. The examiners will merely consider whether the contribution to the stock of human knowledge is technical in nature:-

o If it is held by the patent examiners that it is not technical in nature, then the fourth step would fail.

o If it is held by the patent examiners that it is technical in nature, the fourth step would be passed.

The Application Of The New Test In The Cases: The Aerotel Appeal: The patent application consisted of two halves. The first half was for the method of carrying out the telephone calls. The second half was for the actual system which needed to be used in carrying out the telephone calls. It was held by the court that the system as a whole was new, despite it partly being made up of existing components, and therefore the patent application was for something more than merely a method of doing business. The method of carrying out the telephone call would be impossible without using the new system.

The monopoly to be created was the method of carrying out the telephone calls by using the new system. Thus the claim was held to be properly construed. The actual contribution to the stock of human knowledge was the new system, which included a piece of new hardware. The claim partly fell within one of the excluded categories (namely the ‘business method’ category) due to the fact that the application was for both the new system and the method of carrying out telephone calls. And finally it was clear that the contribution was technical in nature. For these reasons the appeal was granted.

The Macrossan Appeal: The court held that the patent application was for both a business method and a computer program. The monopoly to be created was for the system comprising of the method of selling documents to users by using the computer program. Although no new hardware has been created, the court held that the overall contribution was the system itself. It is the third step where the Macrossan Appeal falls down. The contribution concerns solely excluded subject matter. It is for both a business method and a computer program. Nothing more. It was therefore not necessary for the court to consider the fourth step, even though; the contribution was clearly technical in nature.

The Position Outside Europe: Both business methods and computer programs are patentable in the USA. These decisions were made in the cases of State Street Bank v Signature Financial Group (1998) and Re Alappat (1994) respectively. The primary reason is that there is no equivalent of Article 52(2) under US law. This means that the excluded categories in Europe and the UK are not represented across the Atlantic.

The fact that patents can be granted in the USA for what are excluded categories in the UK has resulted in an increase in such US patent applications. It is a commercial necessity that if patents are applied for, and granted, in the USA, then they should be applied for everywhere. However, it is interesting to note that there is no significant data which suggests that there has been an increase in innovation or investment in the excluded categories, especially business methods and computer programs, in the USA since the decisions in 1998 and 1994.

Conclusion: If all four parts of the test are passed, the invention in question is likely to be afforded patent protection. The Patent Office insists that this new test does not change the boundaries between what is and what is not patentable. The purpose is to improve the way the decision process takes place and to provide evidence of better reasoning behind a decision where a patent application is turned down. It does however recognise that there is likely to be the odd cases on the boundary which would be decided differently under this new method. As this early stage, we would have to wait and see whether this decision leads to an increase in the number of patent applications for business methods, games or computer programs and the number of granted patents for such subject matters.

If you require assistance with patenting your business method or computer programs, contact us at enquiries@rtcoopers.com.

© RT COOPERS, 2006. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Intellectual property law firm advising on patents, intellectual property law, intellectual property lawyers, intellectual property licensing, copyright infringement, trademark search, trademark infringement, trademark lawyers, internet law, Patent attorneys, Patent Lawyers, Copyright, know-how, trade marks, trademarks, copyright law, IP lawyers, IP law Firm, IP valuations IP solicitors freedom to operate copyright lawyers, patent solicitors, branding,intellectual property lawyers, intellectual property solicitors.

Visit rtcoopersiplaw.com rtcoopersiplaw.com or rtcoopers.com/practice_intellectualproperty.php rtcoopers.com/practice_intellectualproperty.php

One of the basic requirements of filing a Fiancé Visa (K-1) on behalf of your fiancé is that you both have met in person within the past two years.

One of the misnomers of the term “Mail Order Bride” is that you can’t just order your bride from a catalog and have her delivered to your doorstep in America.

The Fiancé Visa (K-1) was originally designed for those people who, for cultural reasons, had their marriage pre-arranged by their families. For example, people from Indian Hindu culture frequently have their marriages pre-arranged by their families.

One fiancé may be a US citizen of Indian decent and the other fiancé may be a citizen of India. Their families arrange the marriage and the US citizen must petition the US government to bring his fiancé to America for marriage.

The US Department of Immigration and Naturalization (INS) adopted the Fiancé Visa provisions to allow for this circumstance, but they put the proviso in that the two fiancés had to meet in person before the US citizen could petition the INS to issue a Fiancé Visa.

The exception to this rule is that the two of you are not required to meet if it violates your cultural beliefs. Of course, you have the burden of proof to show that not meeting your intended prior to marriage is a cultural belief of yours.

The INS Is Suspicious Of “Green Card Marriages”:

It’s much easier just to go and meet her. Besides, you want to meet the person you are going to spend the rest of your life with before you marry her anyway, wouldn’t you?

Consequently, one of the main requirements for the processing of the Fiancé Visa application is proof that the couple to be married has met within the past two years.

The INS is very cautious about ‘Green Card Marriages,’ where the sole purpose of the marriage is to get a so-called Green Card (indicating lawful immigrant status) to the person immigrating to America.

The term ‘Green Card’ comes from the predominant color of the US Permanent Residency card.

Many INS personnel and US embassy personnel are naturally suspicious of Russian women marrying American men. Many of them believe that the main reason that the Russian women are marrying Americans is to ‘get to America.’

You Have The Burden Of Proof:

Regardless of your feelings about their attitudes toward your motivations, you have the burden of proof to show that your petition for a Fiancé Visa is a valid one.

As a petitioner on behalf of your fiancé, you must provide documentary evidence of having met your wife in person within the past two years. The best evidence of the two of you having met is having photographs of the two of you together.

When you are taking your world wind tour of Russia, make sure you take plenty of photographs of the women that are special to you. When you are on each leg of your trip, have lots of pictures taken of the two of you together.

I know this may sound a little obvious, but make the photographs of you together look like you like each other. You know, the ‘lovey-dovey’ type pictures with your arms around each other.

I have seen pictures where the couple is standing together in front of Red Square with six inches distance between them. That could be a picture of you with your tour guide.

Make the pictures cheek to cheek, with your arms around each other, and look like you are having a good time.

Take Lots Of Lovey Dovey Pictures:

If you are traveling from city to city and you have a number of women that you are courting, have these kinds of pictures taken with each woman. This comment is made to be eminently practical.

If you have not made up your mind who you are going to ask to marry while you are taking your tour – and you may not until you are at the end of your tour – are you going to retrace your steps to go have pictures taken with the woman you finally decide to bring to America?

In other words, if you finish your tour in Kiev and the woman you want to marry is the one you met in St. Petersburg, are you going back to St. Petersburg to have your lovey-dovey pictures taken?

It probably makes sense to take these kinds of pictures while you are there with her.

You don’t have to have ‘lovey-dovey’ pictures taken with all two hundred women at the Social, but if you have one or two women in each city that you really like, it makes sense to have lots of pictures taken with each of them.

Also, it makes sense to have some pictures taken in front of monuments or other famous locations to show that you were together in her country. You may have to show proof of when the pictures were taken, so keep processing receipts or, better yet, take pictures with the date imprinted on the photo.

John has been to Russia and CIS countries many times. He has been successfully married to his Belarussian wife for over five years. He will show you how to meet her, how to bring her home, and how to successfully survive marriage to a Russian woman.
russian-luv.com/evidence.html russian-luv.com/evidence.html

Whenever a personal injury case is settled for a minor, the court must give its permission. Without this permission, the settlement cannot be finalized. What follows is a typical petition to the court for such permission.

The Petition of Jane Doe, a minor, by her parent and guardian, Janet Doe, and by her attorney, respectfully represents:

1. Petitioner is Jane Doe, a minor, by her parent and guardian, Janet Doe.

2. The minor was born on November 26, 2003 and her social security number is 199-80-3313.

3. The minor resides with her parent and guardian, Janet Doe at 8 Davis Circle, Meriville, PA 19053.

4. A guardian was not appointed for the minor.

5. The minor’s mother is Janet Doe and her father is John Doe.

6. The defendants are Humane Society of Philadelphia and Trio Trains &

Trams, Inc.

7. On April 5, 2006, the minor sustained a thumb injury as the result of an incident that occurred on that date.

8. Attached hereto are true and copies of all of the medical reports regarding the minor’s incident-related injuries.

9. These reports show a minor non-displaced fracture through the finger, for which Jane rapidly recovered full range of motion.

10. Attached is a statement under oath of the minor’s parent, Janet Doe, certifying the minor’s physical and/or mental condition, as well as her approval of the proposed settlement and distribution.

11. The following settlement has been proposed:

To: Jane Doe, a minor, in restricted accounts not to be withdrawn before maturity or upon prior leave of the court - $4,831.52

12. Counsel is of the professional opinion that the proposed settlement is reasonable since there is a significant liability issue in the nature of defendants’ notice of the hazard that caused the injury, and the minor had only five visits with medical providers, and rapidly recovered full range of motion of the injured body part.

13. Counsel has incurred the following expenses and reimbursement is sought:

Medical Records $23.22

Prothonotary $219.50

B and R $10.00

14. No other costs have been incurred by or on behalf of the minor that must be paid from the proceeds of the settlement.

15. There are no claims or liens against the plaintiff.

16. Counsel requests a fee in the amount of $2,415.76, which is 33 1/3 percent of
the net settlement after deduction for costs. A copy of the retainer agreement is attached.

17. Counsel has not and will not receive collateral payments as counsel fees for representation involving the same matter from third parties.

18. All of the medical bills for the minors relating to this incident have been paid in full.
19. The net settlement payable to the minor after deduction of costs and
attorney’s fees is $4,831.52.

WHERFORE, Petitioner requests that he be permitted to enter into the settlement recited above.

For more information about Evan Aidman, a legalaidman.com Philadelphia, PA Personal Injury Lawyer and his work with clients with serious injuries click here: legalaidman.com Philadelphia, PA Personal Injury Attorney

Evan Aidman is the founder and principal of the Law Offices of Evan K. Aidman. Mr. Aidman received a Bachelor’s Degree in psychology from the University of Florida where he was elected to the Phi Beta Kappa Honor Society after compiling a near perfect scholastic record. He graduated from the University of Pennsylvania Law School, an Ivy League Institution, in 1983.

Click Here for Attorney Aidman’s website: legalaidman.com Philadelphia, PA Personal Injury Attorney

It’s an all too familiar story: A child is abused, finally finds the courage to tell someone, and nothing is done. The child is then forced to live with not only any abuse still continuing, but with the past abuse and all the issues abuse brings. The child is also forced to suffer silently and is made to feel as though it is his or her fault because their abuser was never held accountable.

I am one of those adult children.

When I was 10, I was adopted by a single lesbian woman in New York. Before I was adopted, she molested me. I never was asked if I wanted to be adopted by her. My caseworker at the time only wanted to hear the good things. I’d already been through three other foster homes and I was too much to handle, so it was natural that everyone wanted me adopted.

Finally, a few years later, I found the courage to report the abuse to my high school guidance counselor, Dr. Jason Schwartz, Nyack High School in Nyack, N.Y. He believed me.

Unfortunately, CPS did not.

I kept my mouth shut for years after that. There is another story in between that which forced my silence as my abuser made sure I was ridiculed enough to that point.

I tried for several years after turning 18 to get her to take responsibility and tell the truth.

She went from all out denying everything to eventually coming as close as she would to telling the truth by letting me know that it could have happened; she just didn’t remember it. By then, it was too late to bring her to court. In the meantime, she ensured my silence by demeaning me when I attempted to get help for myself.

Now, at 37, I’ve developed bipolar disorder. My doctors believe the bipolar manifested as a direct result of the abuse. I am a single parent, medically disabled, worse than broke and angry that I cannot take this woman to court because there are statutes of limitation on reporting abuse.

There are none for murder. That makes sense, since a victim of murder will always be a victim; they can no longer speak.

But for victims of abuse who are trying to survive, there’s no help. We are stuck with monstrous medical bills, counselor bills, medications, nightmares, issues- the list goes on.

We don’t want huge sums of money, because money won’t take away the horror. However, the money would pay for our medical bills, and help in the interim as we await disability.

We never asked for what they did to us, yet we are forced to pay as a common criminal.

We are in our own private prison for something we did not do.

The laws must be changed!

Thanks-
Jacqui Odell

LifeWriter is an author on Writing.Com/ Writing.Com/
which is a site for Writing.Com/ Writers.

She writing.com/main/view_item/user_id/lifewriter writes frequently on issues of child abuse, mental health and animal issues.

The concern of food poisoning used to be primarily limited to improper handling and preparation of meals in restaurants and in the home. Over the last few years, massive outbreaks of serious illness and death caused by large scale food contamination, such spinach contaminated with E Coli, peanut butter carrying salmonella, and the pet food contamination which we later discovered crossed over into contamination of human foods, have made most of us leery about the foods we buy and eat.

We cannot, however, simply stop eating, and with the government’s very limited capacity to inspect foods coming in from overseas, these outbreaks are likely to continue. Of course, the element of food handling, storage, and contamination in restaurants and local stores has not been removed, but merely added to by these large scale concerns.

The Centers for Disease Control (CDC) estimates that there are bout 76 million cases of food poisoning in the U.S. every year, with about 5,000 resulting in death. We typically think of food poisoning as illness caused by bacteria, but food can also become harmful or deadly when it is contaminated with viruses passed along by infected food handlers, chemicals and even foreign objects.

Food can be contaminated when bacteria are transferred from a person, animal, preparation surface, or other food, due to poor hygiene or improper food handling practices. Improper storage can cause food to spoil, and failure to fully cook foods can also cause food poisoning.

E Coli
There are many strains of E Coli. Not all of them are harmful, but some are deadly. E Coli bacteria come from feces. Food can be contaminated during storage and preparation by people’s hands, utensils, packaging, or preparation surfaces. Undercooked meats are a common source because meat typically comes into contact with feces during the slaughtering process. E Coli can also reach produce in the fields through contaminated irrigation water, animals defecating in fields, and improper fertilization methods.

Salmonella
Undercooked poultry is the most commonly known source of salmonella poisoning. Salmonella is spread among poultry largely due to the poor conditions in which the birds are raised. The bacteria can be killed by cooking meat to temperatures over 150 degrees, and proper refrigeration controls its growth. Cross contamination of other foods is a common result of poor food handling and lack of cleanliness.

Staphylococcus aureus
Mayonnaise-based foods are a common source of food poisoning, and it is a common misconception that salmonella is the culprit. In reality, bacteria called staphylococcus aureus is the underlying problem. It is found in the skin, nose, and respiratory passages of about half of all people, and it is not the bacteria which causes the illness, but a toxin produced by the bacteria as it grows. The bacteria itself can be destroyed by cooking, but the toxin cannot. Most foods containing mayonnaise, such as potato salad and cole slaw, are not cooked. Proper refrigeration and hand washing are necessary to prevent this type of food poisoning.

Botulism
Very rare, but very deadly, botulism kills about 30% of its victims. Canned foods are the most common source. Boiling food for 10 minutes will kill the bacteria.

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1. INTRODUCTION

India, the world’s largest democracy, is today one of the most favoured destinations of foreign investors and businesses for various reasons including a rapidly growing economy, educated and skilled workforce, huge market size, increasing purchasing power, low costs and political stability.

This Synopsis provides a bird’s eye view of the Indian legal framework as applicable to foreign investors and collaborators. The purpose of this Synopsis is to provide a brief idea of the overall Indian legal and regulatory framework, the process of establishment of business in India and the crucial issues involved.

2. ENTRY STRATEGY

2.1 Legal Entity

A foreign entity may establish a business presence in India through a liaison office, branch office, project office, wholly owned subsidiary company or joint venture.

A liaison office can be established to primarily explore and understand the business opportunities and climate in India for the foreign parent entity. A liaison office is not permitted to carry on commercial activities in India.

A branch office can carry on the business activities while a project office can be established to execute a specific project. However, since a branch office or a project office would not be considered a legal entity separate from its parent company, the business income generated by them would be taxable at the rate of tax applicable to the foreign companies (40% plus surcharge and cess) which is higher than the rate of tax applicable to companies incorporated in India (35% plus surcharge and cess proposed to be reduced to 30% plus surcharge and cess by the Union Budget 2005-06).

In view of restrictions on the activities and tax implications for liaison, branch and project offices, establishment of a wholly owned subsidiary, or strategic alliances through joint ventures or technical collaborations with existing Indian companies by and large remain the preferred options for foreign entities to establish a long term presence in India.

2.2 Options for Collaboration

In addition to the option of establishing a wholly owned subsidiary, a foreign entity may enter into following kinds of collaborations with existing Indian companies for its presence in India:

a. Financial Collaboration: Joint Ventures, by investment in the shares or convertible debentures (“securities”) of the Indian company together with Indian partner
b. Technical Collaboration: By licensing technology or patents to the Indian partner and
c. Trademark/Brand Name License: To the Indian partner with/without technical collaboration.

In addition, a foreign entity can import– export goods and services to and from India and appoint distributors for its products in India with or without trademark license. It would, however, be preferable to appoint these distributors on a principal to principal basis to avoid the possibility of taxability of the foreign entity in India.

3. REGULATORY PERMISSIONS AND COMPLIANCES

The Foreign Investment Promotion Board (“FIPB”) and the Reserve Bank of India (“RBI”) are the nodal government authorities to permit and supervise foreign investments in India. In addition, Ministry of Commerce and Industry and various other ministries and departments of the government prescribe sector specific regulatory compliances and approvals.

3.1 Financial Collaboration

Foreign investment upto 100% of the securities of Indian companies is freely permitted in most of the sectors, except a few sectors where FDI beyond prescribed percentages is not permitted without prior government approval, such as insurance, aviation, banking, telecom, real estate, etc., and a few manufacturing sectors requiring industrial license such as alcoholic drinks, tobacco products, defense equipment, hazardous chemicals etc. (“regulated sectors”). Foreign investment is however prohibited in certain sectors including retail trading, atomic energy, lottery, gambling, etc.

A financial collaboration in these regulated sectors consequently requires presence of an Indian equity partner and/or requisite prior government approvals from the FIPB, the RBI and other applicable ministries.

The securities of an existing unlisted Indian company in unregulated sectors can be transferred from its holders to the foreign investor without prior government approval.

To meet additional financial needs, a foreign collaborator can also provide loans to the Indian company as per the detailed government guidelines issued in this regard prescribing interest rate, average maturity period, end use and prior approval in certain cases.

3.2 Technology Collaboration & Trademark License

Under these arrangements, foreign entities can provide technical know how and/or license their trademarks to Indian companies against payment of fee and royalty.

For use of foreign technology, Indian companies can remit lump sum fee of upto US$ 2 million and royalty upto 5% of domestic sales and 8% of exports to the technology licensor without any prior government approval. Similarly, for use of trademarks and brand name of the foreign collaborator without technology transfer, payment of royalty upto 2% of exports and 1% of domestic sales is allowed without prior government approval. In case of trademark/brand name license together with technology transfer, the payment for technology transfer subsumes the payment of royalty for use of trademark and brand name of the foreign collaborator.

3.3 Post Collaboration Compliances

In regulated as well as free sectors, an Indian company is required to effect certain one time as well as periodic filings with prescribed government regulatory and tax authorities. These filings include intimation of receipt of foreign investment, letters of acceptance, intimation of issue of securities, annual tax, accounts and returns, etc.

In addition, specific industries need to file periodic reports with the administrative ministry and departments, such as quarterly and annual returns by the software technology parks with the Director, STPI.

3.4 Incorporation, Registrations and Licenses

Incorporation of a company in India is an administrative process which takes approximately 15 to 20 working days from filing of incorporation related documents. A company incorporated anywhere in India is entitled to carry on business activities throughout India.

In addition, an Indian company would require to obtain various sector and location specific licenses and registrations, including registrations and licenses under the direct and indirect taxes, import-export regulations, labour laws and trade and municipal regulations. These license and registrations can ordinarily be obtain within three weeks of filing the requisite documents.

4. TAXES AND TAX BENEFITS

4.1 Tax Structure

India has a multi tier tax system comprised of direct and indirect taxes. The main taxes are income tax, sales tax, excise (levied on manufacturing/value addition), service tax (levied on provision of specified services), customs duty, octroi (on entry of goods in certain areas), stamp duty (on execution of specified documents) and property taxes.

The income tax applicable to Indian companies is 35% plus surcharge and cess (proposed to be reduced to 30% plus surcharge and cess by the Union Budget 2005-06). No minimum corporate income tax is payable by Indian companies in absence of profits. Generally all business expenses are deductible from taxable income. Indian companies are also required to withhold income tax from various payments and deposit it with the government.

India proposes to introduce a uniform value added tax systems with effect from April 1, 2005, in an attempt to unify certain indirect taxes.

4.2 International Taxation

India has entered into double taxation avoidance agreements (“DTAA”) with several countries around the world. Generally, the provisions of DTAA prevail over the domestic tax provisions and offer bilateral relief to residents in both jurisdictions in respect of foreign taxes paid. Foreign investors can consider to route their investments into India through any of the tax heavens having beneficial DTAA with India.

Most of the DTAA’s provide that, if a foreign company has a permanent establishment (“PE”) in India, its income accruing in India would be taxable in India at the rate applicable to foreign companies (i.e. 40% plus surcharge and cess).

4.3 Transfer Pricing Regulations

India has implemented transfer pricing regulations. Generally speaking, these rules govern the minimum profit margin to be maintained by the Indian companies in transactions with associated enterprises. Arguably, the transfer pricing regulations legitimize provision of services by Indian companies to foreign parent and other entities on a cost plus basis, as per the industry norm and avoid PE implications for the foreign entity in India.

4.4 Tax Benefits

In India, substantial direct and indirect tax benefits/exemptions for the initial few years are provided to units engaged in specific business activities, such as export oriented software and hardware units; specified infrastructure projects; units in backward areas, special economic and free trade zones.

The export oriented software and services units are offered exemption of customs duty on imports, exemption of excise duty and sales tax on domestic purchase of capital goods in addition to exemption of octroi. Due to availability of tax benefits/exemptions and availability of educated workforce, India is fast becoming the global hub for software development and business process outsourcing.

The DTAA, transfer pricing regulations and tax benefits provide an opportunity to the foreign investors to arrive at an efficient tax structuring of investments and business in India. Foreign investors can, considering the tax rates in both jurisdictions, ability of the Indian companies to provide services at a cost plus basis and tax exemption available for specific activities, decide the quantum of their investments in India.

5. RETURN ON INVESTMENTS

Foreign investors can repatriate funds out of India though a number of options including dividends, fees for technical and administrative services, royalties, etc.

5.1 Repatriation of Profits

Indian companies can remit their profits to a foreign collaborator by way of dividend subject to dividend distribution tax @ 12.5% plus surcharge and cess. There is no limit on the rate of dividend that can be distributed or repatriated out of India. However, there are certain conditions with regard to computation of profits and transfer of upto 10% of profits of the company to its reserves before declaring dividend.

Branch offices of foreign companies can also remit business profits to their principal subject to withholding tax @ 40% plus surcharge and cess (unless lower tax rate is prescribed by the DTAA).

5.2 Repatriation of Fees and Royalties

The royalty for transfer and use of technology, trademark and brand name, can be remitted to foreign collaborators subject to withholding tax @20% plus surcharge and cess (unless lower tax rate is prescribed by the DTAA). If the foreign collaborator belongs to a country having DTAA with India, it can avail credit of withholding taxes paid in India. Research and Development Cess @5% is also payable by the Indian importer of technology on payments towards imported technology.

6. IP PROTECTION

India recognizes the value of intellectual property rights and has well established procedures for protection of patents, trademarks, designs and copyrights.

The true and first inventor of a product or process can register it as a patent in India. Trademarks, for services and goods, and designs (industrial designs, excluding functional designs) can also be registered in India by its owner. As far as copyrights are concerned, registration is not compulsory. Copyrights in original literary, dramatic, musical and artistic works, cinematography films and sound recordings can also be registered. The registration of copyright is however not compulsory to initiate a legal action against infringement.

Violation of IP rights is a punishable offence in India. The owners of patents, trademarks, designs and copyrights can institute appropriate legal actions against the infringer and restrain the infringer from using the IP pending conclusion of the legal action.

7. HUMAN RESOURCES AND LABOUR ISSUES

7.1 Costs

India arguably has the world’s largest educated workforce available at salaries substantially below the international standards. A statute prescribing minimum wages to be paid to different classes of employees is in force in India. However, the minimum wages prescribed under this statute are not only far below the minimum wages payable to similarly qualified and skilled workers in developed economies across the world, they are also much below the salaries ordinarily paid in India to such workers by reputed employers.

In addition to salary, certain other employee benefits and contributions, such as provident fund and employee state insurance are also payable by the employer (together with the employees).

The availability of economical educated workforce facilitates the foreign investors to source international quality services and products at comparatively lower costs.

7.2 Key Issues

Due to rapid industrial development and growth of employment opportunities in big cities, the employers in these cities often face problems of attrition. Foreign investors may therefore review the industry salary standards before employing workforce, check the employment history of prospective employees for consistency and sincerity and include adequate protection in the employment documentation to avoid breach of confidentiality and attrition.

Indian labour statutes are employee friendly and discourage hire and fire practices. While the employment of manager and administration level employees is governed by and can be terminated as per their employment contracts, employees at lower levels, called “workman”, can be terminated only in accordance with the procedure laid down under law (unless the termination as per the employment contract is more beneficial to the employees).

Export oriented units situated at most of the prominent locations in India are permitted to employ workers in shifts, beyond the regular office hours.

8. DISPUTE RESOLUTION

The judicial structure in India consists of courts and tribunals in defined hierarchy. The apex court in India is the Supreme Court, at New Delhi. Below the Supreme Court, every state has its own High Court and subordinate courts. The courts exercise jurisdiction based on their territorial, pecuniary and statutory limits. In addition, specific disputes, such as consumer and tax disputes are adjudicated by specially constituted tribunals.

Litigation in India is usually long drawn. Further, judgments of only a few foreign courts can be directly executed in India. Consequently, arbitration and conciliation are prevalent methods of dispute resolution. A foreign investor and its Indian partner can agree to resolve the disputes arising between them through arbitration conducted in or outside India. India is signatory to the Geneva Convention of 1927 and the New York Convention of 1958 and consequently the awards under these conventions are enforceable in India through specified statutory procedure.

9. DUE DILIGENCE

We provide below a non-exhaustive list of viability verifications that may be conducted and caution that may be exercised by the foreign investors while establishing business in India through wholly owned subsidiaries or collaborations:

1. Verify the financial position of and possession of assets by the prospective partner;
2. Verify that the sector permits the proposed investment and obtain requisite approvals
3. Ensure that the business understanding is well documented and is tax efficient;
4. Consider PE implications in India while finalizing the collaboration structuring;
5. Discuss in detail and decide the control and management issues of the Indian venture, including shareholding structure, constitution of its board of directors and committees
6. Ensure inclusion of provisions concerning control and management of the company in its articles of associate and timeline for issue of securities after receipt of investment and procedure for dissolution of the venture;
7. Timelines in India may, sometime, due to unavoidable circumstances extend beyond the time originally expected. The business plans should take this factor into account;
8. Take steps towards IP registration and protection
9. Verify employment history of the employees and
10. Adopt alternative dispute resolution mechanisms.

10. DISCLAIMER

This Synopsis is not intended to be and should not be construed as legal advise. While adequate care and caution has been exercised by the author in preparing and providing this Synopsis, the business requirements of different foreign investors may differ and require in depth consideration and resolution of crucial legal issues. Before taking any concrete business decisions, readers are advised to obtain specific legal advise from competent counsel in their own judgment. The author and the firm disclaim all liability to any person or entity concerning consequences of anything done or omitted to be done wholly or partly in reliance upon this Synopsis.
________________________________

Alishan Naqvee has experience in areas of transactional law and dispute resolution and regularly authors on Indian legal issues.

In Vogon International Limited v The Serious Fraud Office [2005], a dispute arose in relation to the interpretation of the payment terms in the contract between the parties.

The Serious Fraud Office (“SFO”) hired Vogan International Limited (“Vogon”) to retrieve email data from computerised tapes used during a criminal investigation. Prior to entering into the agreement, Vogon calculated its estimated fee based upon number of completed backups. When Vogon later submitted its quotation to the SFO, the costs were determined in relation to number of completed Microsoft Exchange databases.

Vogon processed 39 backups from the tapes provided by the SFO in relation to two Microsoft Exchange Databases. Vogon sent an invoice to the SFO for £314,375 for the 10 days′ work needed to process the 39 backups.

The SFO claimed that the sum due was based upon the number of completed Microsoft Exchange databases, so paid Vogon £22,500.

The court ruled in the SFO′s favour as follows:-

the word “database” had no single meaning and so it was necessary to consider the word in its contextual meaning;

the question was not what the word “database” was capable of meaning, but what it meant within the contract;

in the context of the quotation and the accompanying cover letter, all references to databases were references to a server;

furthermore, Vogon’s construction of “database” was commercially unlikely, given the difference between the resulting charges;

Vogon could not claim a case of mistake or estoppel as this would be contrary to legal principle and

Vogon should pay the SFO’s costs as Vogon’s invoice for such a large sum had been dishonest and opportunistic.

Vogon appealed this decision to the Court of Appeal (“CA”). The CA held that:-

the court was correct in its interpretation of the contract and awarding the SFO its costs;

however, court was wrong to make a finding against Vogon that it had been dishonest and opportunistic where dishonesty had not been argued by the SFO nor did Vogon have the opportunity to defend itself against such findings.
Comment : Parties should seek legal advice at the outset of negotiations. This could avoid excessive legal fees and save valuable time, in the event of a dispute.

If you require further information contact us at: enquiries@rtcoopers.com

© RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.

Intellectual property/IT law firm advising on patents, Patent attorneys, Patent Lawyers, Copyright, IT Contracts, trade marks, trademarks, copyright law, IP law, IP law Firm, IP valuations IP solicitors freedom to operate copyright lawyers, patent solicitors, branding,intellectual property lawyers, intellectual property solicitors
If you require further information contact us at mailto:enquiries@rtcoopers.com enquiries@rtcoopers.com or visit our website at rtcoopers.com rtcoopers.com

The first thing you should understand about child custody when going through a divorce in New Jersey is that “physical” and “legal” custody are not equivalent. Legal Custody refers to which parent makes important decisions about the child’s health, education, and welfare. Physical Custody refers to the child’s primary residence. These two types of custody can be thought of in four categories explained as follows:

Shared Physical Custody

The child lives with each parent for an approximately equal amount of time on a rotating basis.

Joint Physical Custody

The child lives with one parent most of the time, but the other parent has parenting time.

Joint Legal Custody

Both parents consult with each other to make important decisions on behalf of the child, and both have access to the child’s personal records.

Sole Legal Custody

One parent is authorized to make important decisions on behalf of the child, and the other parent must be consulted, but the parent with sole legal custody has the final word.

Unless there is a real problem with one parent’s ability to parent or unless the parties cannot work together for the benefit of their child, courts favor joint legal custody.

According to Karen Meislik, a custody and visitation attorney in New Jersey, “in most instances, parents are given joint legal custody of their children.”

Court look at many aspects of a family’s relationship when asked to determine custody. They may consider what the child, if of sufficient age, has to say, and may look at the parents’ medical records, criminal records (if any), job histories, and similar items. However, according to the family law firm of Meislik & Levavy (www.meislikfamilylaw.com ), your chances of obtaining sole custody of your child are improved if you can show that you were the primary caregiver before and during the separation.

Proving that you were the primary caregiver

Which of the following statements are true, and cannot be said of the other parent?

&amp#9679; I arranged for daycare / babysitters
● I fixed breakfast for my child each day
● I took my child to doctor’s appointments
● I supervised my child most of the time
● I stayed at home from work when my child missed school
&amp#9679; I reviewed school report cards and helped with my child’s homework
● I disciplined my child in a responsible way
● I toilet trained my child
● I put my child to bed each night and/or woke my child each morning
● I attended parent – teacher conferences
● I took my child shopping for clothes and school supplies

Above all, the Court will assess the best interest of your child before any custody determination is made.

These, along with any other parental responsibilities you can prove, will help your visitation attorney obtain custody of your child for you.

This article does not constitute a client attorney relationship in any way. It is not meant to be used as professional legal advice. If you are involved in a divorce please meislikfamilylaw.com contact a custody attorney for formal legal council before proceeding.