The state of the art (sometimes cutting edge or leading edge) refers to the highest level of general development, as of a device, technique, or scientific field achieved at a particular time. However, in some contexts it can also refer to a level of development reached at any particular time as a result of the common

methodologies In its most common sense, methodology is the study of research methods. However, the term can also refer to the methods themselves or to the philosophical discussion of associated background assumptions. A method is a structured procedure for bri ...

employed at the time. The term has been used since 1910, and has become both a common term in

advertising Advertising is the practice and techniques employed to bring attention to a product or service. Advertising aims to put a product or service in the spotlight in hopes of drawing it attention from consumers. It is typically used to promote a ...

and

marketing Marketing is the process of exploring, creating, and delivering value to meet the needs of a target market in terms of goods and services; potentially including selection of a target audience; selection of certain attributes or themes to empha ...

, and a legally significant phrase with respect to both

patent law A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A p ...

and

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

liability. In advertising, the phrase is often used to convey that a product is made with the best or latest available 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 In everyday language, puffery refers to exaggerated or false praise. Puffery serves to "puff up" what is being described. In law, puffery is usually invoked as a defense argument: it identifies futile speech, typically of a seller, which does n ...

. The use of the term in patent law "does not connote even superiority, let alone the superlative quality the ad writers would have us ascribe to the term".

Origin and history

The origin of the concept of "state of the art" took place in the beginning of the 20th century. 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 – after 1943), an engineering graduate (

University of Pennsylvania The University of Pennsylvania (also known as Penn or UPenn) is a Private university, private research university in Philadelphia. It is the fourth-oldest institution of higher education in the United States and is ranked among the highest- ...

, 1876), titled ''The 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" refers to technics, rather than performing or

fine art In European academic traditions, fine art is developed primarily for aesthetics or creative expression, distinguishing it from decorative art or applied art, which also has to serve some practical function, such as pottery or most metalwork. ...

s. Over time, use of the term increased in all fields where this kind of art has a significant role. 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". 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 " thas no punch left and actually sounds like a lie". A 1994 essay listed it among "the same old tired

cliché A cliché ( or ) is an element of an artistic work, saying, or idea that has become overused to the point of losing its original meaning or effect, even to the point of being weird or irritating, especially when at some earlier time it was consi ...

s" that should be avoided in advertising.

Legal importance

Patent law

In the context of

European European, or Europeans, or Europeneans, may refer to: In general * ''European'', an adjective referring to something of, from, or related to Europe ** Ethnic groups in Europe ** Demographics of Europe ** European cuisine, the cuisines of Europe ...

and Australian patent law, the term "state of the art" is a concept used in the process of assessing and asserting

novelty Novelty (derived from Latin word ''novus'' for "new") is the quality of being new, or following from that, of being striking, original or unusual. Novelty may be the shared experience of a new cultural phenomenon or the subjective perception of an ...

and

inventive step The inventive step and non-obviousness reflect a general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive—i.e., non-obvious—in order to be patented. In other words, " henon ...

, and is a synonym of the expression "prior art". In the

European Patent Convention The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to ...

(EPC), " e 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 . Due account should be taken of as well, but merely for the examination of novelty. The expression "background art" is also used in certain legal provisions, such as (previously ), and has the same meaning.

Tort liability

The state of the art is important in the law of

liability, specifically in the areas of

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...

and

product liability Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has bro ...

. 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 product liability, manufacturers generally have

strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...

for any injury caused by defects in their products. However, in some jurisdictions a manufacturer may raise as a

legal defense In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat ...

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, " der

German law The law of Germany (german: das Recht Deutschlands), that being the modern German legal system (german: Deutsches Rechtssystem), is a system of civil law which is founded on the principles laid out by the Basic Law for the Federal Republic of G ...

, 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 The European Economic Community (EEC) was a regional organization created by the Treaty of Rome of 1957,Today the largely rewritten treaty continues in force as the ''Treaty on the functioning of the European Union'', as renamed by the Lisbo ...

under the Product Liability Directive, art. 7(e). Pursuant to this article: 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 magazine explained in 1984:

References

External links