On January 14, 2013, President Obama signed H.R. 6621, which makes a number of technical corrections to the Leahy-Smith America Invents Act (AIA), into law following its passage by 112th Congress just before the end of its just-concluded session.
The AIA, which President Obama signed on September 16, 2011, constitutes the most significant reform of U.S. patent law in the past 60 years. The first of the two phases of reforms, include new inter partes and post-grant review proceedings, “virtual” patent marking and limitations on false marking suits, and third-party submissions, are in place. The final phase, including the transition from a “first to invent” to a “first inventor to file” system, become effective on March 16, 2013.
Guess what? When it comes to the claims you make in your advertising, substantiation matters – a lot. The FTC’s recent Final Order against POM Wonderful (POM) in which it found nearly 40 claims made by POM about its pomegranate juice products to be false and misleading based on the absence of proper substantiation, should leave no doubt that the FTC takes the issue of claim support very seriously. And the fact that most of POM’s challenged claims – claims regarding potential health benefits of the products, including that consumption could help treat, prevent, or reduce the risk of heart disease, prostate cancer, or erectile dysfunction – were not actually express claims, but rather implied claims (from both the wording and imagery of the ad), should be a reminder to us all that the entire advertisement and the overall “net impression” it conveys must be carefully considered.
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