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Jack Smith

Is 'State of the Art' Patently Ill Defined?

June 15, 1988|Jack Smith

Louise Hauter reminds me that I was unable to define "state of the art" when asked its meaning recently. Mrs. Hauter notes that the phrase used to be hyphenated, but the hyphens have been dropped. She asks, "Do you suppose that is significant?"

I don't know why it was hyphenated in the first place, and I don't know why the hyphens have been dropped, except possibly that the language tends toward simplicity of punctuation. (How often do you see your for you're ?)

Until now, I have only guessed at the meaning through textual inference. Since I have often seen it used in ads to describe some new electronic gadget, I have supposed that it meant an application of the very latest, up-to-the-minute technology.

My videocassette recorder was advertised as state of the art when I bought it, for $800, and it was indeed so technologically advanced that I haven't mastered its complexities yet. I'm sure that most of my failures are due to my own ineptitude and ignorance. Once, though, the cassette would not eject, and I took it into an authorized shop. Without even looking at it, the serviceman said it would cost a minimum of $90. A minimum charge for fixing anything that goes wrong with an electronic device (plus parts and extra labor) is apparently state of the art.

Now I am informed by William K. Rieber, a Pacific Palisades patent lawyer, that in patent law, where the phrase evidently originated, it means exactly the opposite of new.

"In patent law," he writes, " 'state of the art' does not connote even superiority, let alone the superlative quality the ad writers would have us ascribe to the term."

In patent law, he explains, a product that is described by a patent examiner as merely "state of the art" does not even qualify for a patent. "State of the art" means merely ordinary, or old and unpatentable.

Rieber notes that patent law is derived from a phrase in the U.S. Constitution giving Congress the power "to promote the Progress of Science and the useful Arts" by granting patents to inventors.

From those few words, he says, a rule has developed that if a patent applicant's invention does not "promote the Progress of the useful Arts," the invention is not entitled to a patent.

In patent parlance, he says, "state of the art" is virtually synonymous with "ordinary," or "obvious"--the antithesis of patentable invention. Patent examiners use printed forms that usually include a category of "state of the art" references in which they list the most devastating examples of prior art.

Rieber suggests that "state of the art' is one of a number of terms and phrases that have been mindlessly borrowed from legal jargon and developed by persistent misuse into a popular malapropism.

"I suppose the use of 'state of the art' in a supposedly laudatory sense is a product of the same sort of malformed logic that leads to 'I could care less' as an expression of complete indifference."

Rieber also condemns the misuse of the word relevant, which he compares to the misuse of "state of the art." He says, "It has recently come to be used, not to describe a relationship between two propositions, but a single object, as though it were something that came in a can and could be sprayed onto a situation to give it a desirable quality."

William Safire, in his book "On Language," recalls that when he questioned the meaning of "state of the art" he heard from patent attorneys who also traced the phrase to the Constitution, and said that patent law describes existing technology as "prior art."

As inappropriate as it may be in its currently popular meaning, "state of the art" has evidently been integrated into the language in that sense. It is listed in the distinguished new supplement to the Oxford English Dictionary, which I can read only with a magnifying glass. (Is that state of the art?)

"state of the art: the current stage of development of a practical or technological subject; frequently (especially in attributive use) implying the use of the latest techniques in a product or activity."

But remember: If you buy something advertised as state of the art and it turns out to be out-of-date, you probably won't be able to sue.

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