courtesy : Art Examination
Legal importance
Patent law
Main article: Prior art
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, and is a synonym of the expression “prior art” 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.
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”. 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. 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”. 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.
In the United States, the state of an industry is “merely evidence of due care rather than a controlling factor”, 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”. 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.
