State of the art

State of the art (sometimes cutting edge) refers to the highest level of general development, as of a device, technique, or scientific field achieved at a particular time. It also refers to such a level of development reached at any particular time as a result of the common methodologies employed at the time. The term has been used since 1910, and has become both a common term in advertising and marketing, and a legally significant phrase with respect to both patent law and tort liability. In advertising, the phrase is often used to convey that a product is made with the best possible technology, but it has been noted that "the term 'state of the art' requires little proof on the part of advertisers", as it is considered mere puffery.^[1] The use of the term in patent law, by contrast, "does not connote even superiority, let alone the superlative quality the ad writers would have us ascribe to the term".^[2]

Origin and history

The origin of the concept of "state of the art" took place in the beginning of the twentieth century.^[3] The earliest use of the term "state of the art" documented by the Oxford English Dictionary dates back to 1910, from an engineering manual by Henry Harrison Suplee (1856-post 1943), an engineering graduate (University of Pennsylvania, 1876), titled Gas Turbine: progress in the design and construction of turbines operated by gases of combustion. The relevant passage reads: "In the present state of the art this is all that can be done". The term, "art", itself refers to the useful arts, skills and methods relating to practical subjects such as manufacture and craftsmanship, rather than in the sense of the performing arts and the fine arts.^[4]

Over time, use of the term increased in all fields where this kind of art has a significant role.^[5] In this relation it has been quoted by the author that "Although eighteenth century writers did not use the term, there was indeed in existence a collection of scientific and engineering knowledge and expertise that can be identified as the state of the art for that time".^[5]

Despite its actual meaning, which does not convey technology that is ahead of the industry, the phrase became so widely used in advertising that a 1985 article described it as "overused", stating that "[i]t has no punch left and actually sounds like a lie".^[6] A 1994 essay listed it among "the same old tired clichés" that should be avoided in advertising.^[7]

Legal importance

Patent law

In the context of European and Australian patent law, the term "state of the art" is a concept used in the process of assessing and asserting novelty and inventive step,^[8] and is a synonym of the expression "prior art".^[9] In the European Patent Convention (EPC), "[the] state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the European patent application" according to Article 54(2) EPC. Due account should be taken of Article 54(3) EPC as well, but merely for the examination of novelty.

The expression "background art" is also used in certain legal provisions, such as Rule 42(1)(b) and(c) EPC (previously Rule 27(1)(b) and (c) EPC 1973), and has the same meaning.^[10]

Tort liability

The state of the art is important in the law of tort liability, specifically in the areas of negligence and products liability. With respect to negligence, "an engineer may defend against a claim of negligence by contending that he met the standards of his profession and the state of the art".^[11] With respect to products liability, manufacturers generally have strict liability for any injury caused by defects in their products. However, in some jurisdictions a manufacturer may raise as a legal defense the assertion that their product represents the "state of the art", and that the manufacturer therefore could not have made the product any safer in light of the knowledge available at the time.^[12] For example, "[u]nder German law, the producer can also raise the state of the art defense: general tort law does not hold him liable if he could not know or discover the defect for lack of fault, and the Product Liability Statute expressly provides for this defense".^[13] This defense is available throughout the European Community under the Product Liability Directive, art. 7(e). Pursuant to this article:

The state-of-the-art defense allows a defendant to be absolved of liability if he can prove that the state of technical and scientific knowledge, at the time when he put the product into circulation, was not such as to enable the existence of the defect to be discovered. The Directive allows Member States to eliminate the state- of-the-art defense, but only Luxembourg, which has little manufacturing industry, has done so.^[14]

In the United States, in those states that follow the common law, the state of an industry is "merely evidence of due care rather than a controlling factor",^[15] but a number of states have State-of-the-Art statutes that "make a manufacturer's compliance with technological feasibility an absolute defense to a products liability suit".^[15] Because the state of the art is constantly advancing, the ability of manufacturers to claim that their products are "state-of-the-art" tracks their potential liability when these products are defective. As an industry journal explained in the 1980s:

Remote control rear view mirrors, disc brakes, automatic slack adjusters for drum brakes and sealed lighting systems are just a few examples of products that have advanced the state of the art. When one of these gains a degree of industry acceptance, it begins to bridge a legal gap between what is state of the art from a design standpoint, and what is state of the art from a usage standpoint. This could place a carrier in a vulnerable position in the not too distant future.^[16]

Uses of hyphens

This term is frequently used in scientific writings. Hyphens are used when the phrase is used as an adjective. For example, "This bike is the current state of art" is not hyphenated, but "This bike is produced using state-of-art techniques" is hyphenated because "state-of-art" is an adjective.

See also

• Bleeding edge
• Cutting edge (disambiguation)
• High end

References

1. Timothy Borchers, Persuasion in the Media Age: Third Edition (2012), p. 85.
2. Jack Smith, "Is 'State of the Art' Patently Ill Defined?", Los Angeles Times (15 June 1988).
3. , LetraMagna.com
4. George Washington used the term in a letter to Lafayette (29 Jan. 1798). Washington distinguished commerce from useful arts by stating, "While our commerce has been considerably curtailed for want of that extensive credit formerly given in Europe, and for default of remittance; the useful arts have been almost imperceptibly pushed to a considerable degree of perfection". The Writings of Washington from the Original Manuscript Sources, 1732-1799 (Fitzpatrick ed.). Other literary sources are collected in the United States Patent and Trademark Office's Supplemental Brief in In re Bilski, p. 11 n.4 (useful arts are manufacturing processes).
5. Anderson, John (1999). A history of aerodynamics and its impact on flying machines. Cape Town: Cambridge University Press. ISBN 978-0-521-66955-9.
6. Executive (1985), Vol. 27, p. 56.
7. Mark Zweig, "Better Writing" (1994), republished in Management from A to Zweig: The Complete Works of Mark Zweig (2010), p. 115.
8. Under the European Patent Convention: Article 54 EPC and Article 56 EPC.
9. Sreenivasulu, N. S.; Raju, C. B. (2008). Biotechnology and Patent Law: Patenting Living Beings. Manupatra. p. 95. ISBN 9788189542313. The European Patent Convention uses the term 'state of the art' which is equivalent to prior art (...)
10. Decision T 11/82 of 15 April 1983 of the Boards of Appeal of the European Patent Office
11. David I. Cleland, Dundar F. Kocaoglu, Julienne Brown, Engineering Management (1981), p. 440.
12. Philip D. Rufe, Fundamentals of Manufacturing (2012), p. 209.
13. Mathias Reimann, Joachim Zekoll, Introduction to German Law (2005), p. 220
14. Lucas Bergkamp, European Community Law for the New Economy (2003), p. 440.
15. Frank J. Vandall, A History of Civil Litigation: Political and Economic Perspectives (2010), p. 75.
16. Chilton's Commercial Carrier Journal for Professional Fleet Managers (1984), Vol. 141, Issues 7-12, p. 7.

External links

• Regarding the patent law concept, see for example:
  • Guidelines for Examination in the EPO, section g-iv : "State of the art"
  • Legal Research Service for the Boards of Appeal, European Patent Office, Case Law of the Boards of Appeal of the EPO (7th edition, September 2013), i.c.1 : "Defining the state of the art"