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 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 emph ...

, and a legally significant phrase with respect to both patent law 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. 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 The ''Oxford English Dictionary'' (''OED'') is the first and foundational historical dictionary of the English language, published by Oxford University Press (OUP). It traces the historical development of the English language, providing a c ...

'' dates back to 1910, from an engineering manual by

Henry Harrison Suplee Henry may refer to: People *Henry (given name) *Henry (surname) * Henry Lau, Canadian singer and musician who performs under the mononym Henry Royalty * Portuguese royalty ** King-Cardinal Henry, King of Portugal ** Henry, Count of Portugal, ...

(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 A performance is an act of staging or presenting a play, concert, or other form of entertainment. It is also defined as the action or process of carrying out or accomplishing an action, task, or function. Management science In the work place ...

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 metalwor ...

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 clichés" that should be avoided in advertising.

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, and is a synonym of the expression "prior art". In the European Patent Convention (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 ...

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". 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 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 Lis ...

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