Editing State of the art (section)

== Legal importance ==

=== Patent law ===
{{main|Prior art}}
In the context of [[European patent law|European]] and [[Australian patent law]], the term "state of the art" is a concept used in the process of assessing and asserting [[novelty (patent)|novelty]] and [[inventive step and non-obviousness|inventive step]],<ref>Under the European Patent Convention: {{EPC Article|54}} and {{EPC Article|56}}.</ref> and is a synonym of the expression "prior art".<ref>{{cite book |last1=Sreenivasulu |first1=N. S. |last2=Raju |first2=C. B. |year=2008 |title=Biotechnology and Patent Law: Patenting Living Beings |url=https://books.google.com/books?id=9-3bWNnOuloC&pg=PA95|location=Noida |publisher=Manupatra |page=95 |isbn=978-81-89542-31-3 |quote=The European Patent Convention uses the term 'state of the art' which is equivalent to prior art}}</ref> 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 {{EPC Article|54|2}}. Due account should be taken of {{EPC Article|54|3}} as well, but merely for the examination of novelty.

The expression "background art" is also used in certain legal provisions, such as {{EPC Rule|42|1|b) and(c}} (previously {{EPC 1973 Rule|27|1|b) and (c}}), and has the same meaning.<ref>{{cite web|url=http://www.epo.org/law-practice/case-law-appeals/recent/t820011ep1.html|title=T 0011/82 (Control Circuit) of 15.4.1983|publisher=European Patent Office|quote=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'.|access-date=31 May 2018}}</ref>

=== Tort liability ===
The state of the art is important in the law of [[tort]] [[legal liability|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".<ref>{{cite book|last1=Cleland|first1=David I.|author-link1=David I. Cleland|last2=Kocaoglu|first2=Dundar F.|year=1981|editor-last1=Brown|editor-first1=Julienne V. |editor-last2=Maisel|editor-first2=J. W.|title=Engineering Management|url=https://books.google.com/books?id=X4cjAQAAIAAJ|location=New York|publisher=McGraw-Hill|page=440|isbn=978-0-07-011316-9}}</ref> 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.<ref>{{cite book|last=Rufe|first=Philip D.|year=2013|title=Fundamentals of Manufacturing|url=https://books.google.com/books?id=Xs2Wx787hpcC&pg=PA209|edition=3rd|location=Dearborn, Michigan|publisher=Society of Manufacturing Engineers|page=209|isbn=978-0-87263-870-9}}</ref> For example, "[u]nder [[law of Germany|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".<ref>{{cite book|editor-last1=Zekoll|editor-first1=Joachim |editor-last2=Reimann|editor-first2=Mathias |year=2005|title=Introduction to German Law|publisher=Kluwer Law International|page=220|isbn=978-90-411-2261-2}}</ref> This defense is available throughout the [[European Community]] under the Product Liability Directive, art. 7(e). Pursuant to this article:

{{quotation|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.<ref>{{cite book|last=Bergkamp|first=Lucas |year=2003|title=European Community Law for the New Economy |url=https://books.google.com/books?id=_H9sBl9eN5sC&pg=PA440 |publisher=Intersentia |page=440|isbn=978-90-5095-229-3}}</ref>}}

In the United States, the state of an industry is "merely evidence of due care rather than a controlling factor",<ref name="Vandall">{{cite book|last=Vandall|first=Frank J.|year=2011|title=A History of Civil Litigation: Political and Economic Perspectives|url=https://books.google.com/books?id=L9VMAgAAQBAJ&pg=PA75|location=Oxford|publisher=Oxford University Press|page=75|isbn=978-0-19-539191-6}}</ref> 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".<ref name="Vandall" /> 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:

{{quotation|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.<ref>{{cite magazine|last=Standley|first=Gerald F. |date=October 1984 |title=Don't ignore a 'safer alternative'|url=https://books.google.com/books?id=I40qAQAAMAAJ|magazine=Commercial Carrier Journal|volume=141 |number=10 |page=7|issn=0734-1423}}</ref>}}