State of the art

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The state of the art (SOTA, 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 employed at the time.

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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 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. [1] 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". [2]

Origin and history

The concept of the "state of the art" originated at the beginning of the 20th 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 – after 1943), an engineering graduate (University of Pennsylvania, 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". [4] The term "art" refers to technics, rather than performing or fine arts. [5]

Over time, use of the term increased in all fields where this kind of art has a significant role. [6] 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". [6]

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 "[it] has no punch left and actually sounds like a lie". [7] A 1994 essay listed it among "the same old tired clichés" that should be avoided in advertising. [8]

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, [9] and is a synonym of the expression "prior art". [10] In the European Patent Convention (EPC), "[t]he 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. [11]

Tort liability

The state of the art is important in the law of tort liability, specifically in the areas of negligence and product 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". [12] With respect to product 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. [13] 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". [14] 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. [15]

In the United States, the state of an industry is "merely evidence of due care rather than a controlling factor", [16] 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". [16] 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:

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. [17]

See also

Related Research Articles

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 broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.

In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but-for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

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 by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

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.

<span class="mw-page-title-main">European Patent Convention</span> International patent treaty

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 which European patents are granted. The term European patent is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally enforceable, nationally revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.

<span class="mw-page-title-main">Disclaimer</span> Any statement intended to specify or delimit the scope of rights and obligations

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In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability.

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English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

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<span class="mw-page-title-main">Tort reform</span> Legal reforms aimed at reducing tort litigation

Tort reform consists of changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation or to reduce damages they can receive. Such changes are generally justified under the grounds that litigation is an inefficient means to compensate plaintiffs; that tort law permits frivolous or otherwise undesirable litigation to crowd the court system; or that the fear of litigation can serve to curtail innovation, raise the cost of consumer goods or insurance premiums for suppliers of services, and increase legal costs for businesses. Tort reform has primarily been prominent in common law jurisdictions, where criticism of judge-made rules regarding tort actions manifests in calls for statutory reform by the legislature.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

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<i>Greenman v. Yuba Power Products, Inc.</i>

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The first Tort Law in China wasn't enacted until 2009, though ideas similar concepts about social obligations and duties can be found in Confucianism upon which Ancient Chinese law was based.

References

  1. ↑ Borchers, Timothy A. (2022). Persuasion in the Media Age (4th ed.). Long Grove, Illinois: Waveland Press. p. 82. ISBN   978-1-4786-4691-4.
  2. ↑ Smith, Jack (15 June 1988). "Is 'State of the Art' Patently Ill Defined?". Los Angeles Times . Retrieved 24 December 2022.
  3. ↑ Haase, Fee-Alexandra (2010). "'The State of the Art' as an Example for a Textual Linguistic 'Globalization Effect'. Code Switching, Borrowing, and Change of Meaning as Conditions of Cross-cultural Communication" (PDF). Revista de Divulgação Científica em Língua Portuguesa, Linguística e Literatura. 6 (13). ISSN   1807-5193. Archived from the original (PDF) on 22 July 2011. Retrieved 24 December 2022.
  4. ↑ Suplee, Henry Harrison (1910). The Gas Turbine: Progress in the Design and Construction of Turbines Operated by Gases of Combustion. Philadelphia: J. B. Lippincott Company. p. 6.
  5. ↑ George Washington used the term in a letter to Lafayette (29 January 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". Fitzpatrick, John C., ed. (1939). The Writings of Washington from the Original Manuscript Sources, 1745–1799. Vol. 30. Washington: United States Government Printing Office. p. 186. 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).
  6. 1 2 Anderson, John D. Jr. (1998). A History of Aerodynamics and Its Impact on Flying Machines. Cambridge: Cambridge University Press. p. 4. ISBN   978-0-521-66955-9.
  7. ↑ Executive (1985), Vol. 27, p. 56.[ full citation needed ]
  8. ↑ Zweig, Mark C. (2010) [11 July 1994]. "Better Writing". Management from A to Zweig: The Complete Works of Mark Zweig. Fayetteville, Arkansas: ZweigWhite. p. 115. ISBN   978-1-60950-017-7.
  9. ↑ Under the European Patent Convention: Article 54 EPC and Article 56 EPC.
  10. ↑ Sreenivasulu, N. S.; Raju, C. B. (2008). Biotechnology and Patent Law: Patenting Living Beings. Noida: Manupatra. p. 95. ISBN   978-81-89542-31-3. The European Patent Convention uses the term 'state of the art' which is equivalent to prior art
  11. ↑ "T 0011/82 (Control Circuit) of 15.4.1983". European Patent Office. Retrieved 31 May 2018. Headnote II. The expression 'background art' used in the English text of Rule 27(1)(c) and (d) EPC must have the same meaning as the more familiar expression 'prior art'.
  12. ↑ Cleland, David I.; Kocaoglu, Dundar F. (1981). Brown, Julienne V.; Maisel, J. W. (eds.). Engineering Management. New York: McGraw-Hill. p. 440. ISBN   978-0-07-011316-9.
  13. ↑ Rufe, Philip D. (2013). Fundamentals of Manufacturing (3rd ed.). Dearborn, Michigan: Society of Manufacturing Engineers. p. 209. ISBN   978-0-87263-870-9.
  14. ↑ Zekoll, Joachim; Reimann, Mathias, eds. (2005). Introduction to German Law. Kluwer Law International. p. 220. ISBN   978-90-411-2261-2.
  15. ↑ Bergkamp, Lucas (2003). European Community Law for the New Economy. Intersentia. p. 440. ISBN   978-90-5095-229-3.
  16. 1 2 Vandall, Frank J. (2011). A History of Civil Litigation: Political and Economic Perspectives. Oxford: Oxford University Press. p. 75. ISBN   978-0-19-539191-6.
  17. ↑ Standley, Gerald F. (October 1984). "Don't ignore a 'safer alternative'". Commercial Carrier Journal. Vol. 141, no. 10. p. 7. ISSN   0734-1423.
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