State of the art

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The state of the art is an indefinite legal term that is used in various areas of law and refers to the development of science and technology .

The state of the art , European as best available techniques (best available techniques - BAT) refers, is available after the Kalkar decision of the Federal Constitutional Court developed three-stage theory between the established rules of the technology and the more advanced state of science .

Environmental law


The technology standard includes the state of the art

1. According to the manual of the legal formality of the Federal Ministry of Justice dated September 22, 2008, the “state of development of progressive procedures, facilities and operating modes, which, according to the prevailing opinion of leading experts, makes the achievement of the legally prescribed goal appear assured. Procedures, facilities and operating modes or comparable procedures, facilities and operating modes must have proven themselves in practice or - if this is not the case yet - should have been successfully tested in the company if possible. "

2. In environmental law, the requirements for practical devices to protect against harmful environmental impacts that a plant requiring approval must meet or that can be given to the plant operator.

The term is legally defined in Section 3 (6) BImSchG and almost identically in Section 3 (11) WHG and Section 3 (28) KrWG as a model for other areas and aligned with the European legal requirements:

" State of the art is the level of development of progressive processes, facilities or operating modes, which indicates the practical suitability of a measure to limit emissions to air, water and soil, to ensure plant safety, to ensure environmentally compatible waste disposal or otherwise to avoid or reduce effects makes the environment appear secure in order to achieve a generally high level of protection for the environment as a whole. When determining the state of the art , the criteria listed in the annex [of the respective legal standard] must be taken into account. "

These provisions are specified in the respective legal annexes, such as the annex to § 3 Paragraph 6 BImSchG, statutory ordinances such as the acc. § 48 BImSchG issued 13th BImschV and norm-concretizing administrative regulations such as the TA Luft or the TA Lärm .

Since the implementation of the Industrial Emissions Directive by federal law of April 2013, the BVT information sheets issued by the European Commission are also binding in Germany. According to According to Section 52, Paragraph 1, Clause 4, No. 2 of the BImSchG, existing systems are checked and, if necessary, brought up to the latest state of the art through subsequent orders ( BAT conclusions ).


In § 71a of the Austrian Trade Regulations (GewO) there is the definition:

"The state of the art within the meaning of this federal law is the state of development of progressive processes, facilities, construction or operating methods based on the relevant scientific knowledge, the functionality of which has been tested and proven."

The following also refer to the state of the art:

Patent law

In patent law , “state of the art” refers to those processes or devices that are already known and have been published in some form. The most important condition for the granting of a patent is that the invention is new , i.e. different from the state of the art. As a result, it is an essential concept of the patent system. In the patents, reference is often made to the prior art in order to then describe the innovation.

European patent law anchors the term in the European Patent Convention (EPC), where in Art. 54 Paragraph 2 it says almost word for word:

"(2) The state of the art is everything that has been made available to the public by written or oral description, by use or in any other way prior to the filing date of the European patent application."

Section 3 (1) of the German Patent Act (PatG) reads:

“(1) An invention is considered new if it does not belong to the state of the art. The state of the art includes all knowledge that was made available to the public by written or oral description, by use or in any other way prior to the day relevant for the priority of the registration. "

In the Austrian Patent Act 1970 (PatG), the state of the art is defined in Section 3 (1) as follows:

"The state of the art is everything that has been made available to the public by written or oral description, by use or in any other way before the priority date of the application."

In the Swiss Patent Act (PatG), Art. 7 Para. 2 Novelty of Invention gives the definition:

"The state of the art is everything that has been made available to the public by written or oral description, by use or in any other way before the registration or priority date."

Occupational health and safety and product safety

In the case of occupational health and safety measures , the state of the art, occupational medicine and hygiene as well as other established ergonomic findings must be taken into account (Section 4 No. 3 ArbSchG ). The specific requirements for the individual measures result, for example, from trade association regulations .

To protect against hazards from systems requiring monitoring , Section 34 (1) No. 4 ProdSG contains an authorization to issue statutory ordinances that determine that such systems must meet the state of the art . Such a regulation is, for example, the elevator regulation .

Compliance with the state of the art of a smart meter gateway is assumed if the protection profiles and technical guidelines of the Federal Office for Information Security listed in the annex to the Metering Point Operation Act (MsbG) are observed (Section 22 (2) MsbG).

See also


  • Stefan Weise: Supplementary performance based on the latest technology , NJW Special 22/2011, p. 684
  • Paul T. Schrader: Identity of the "state of the art" in patent and utility model law. In: Mitteilungen der Deutschen Patentanwälte Vol. 104, Issue 1, pp. 1–8 (2013), ISSN  0026-6884

Web links

Individual evidence

  1. BVerfG, decision of August 8, 1978 - 2 BvL 8/77
  2. Mark Seibel: Differentiation of the "recognized rules of technology" from the "state of the art" ( Memento from November 23, 2015 in the Internet Archive ) NJW 2013, 3000
  3. cf. Art. 2, 7 and 8 of the law for the implementation of the EIA amendment directive , the IVU directive and other EC directives on environmental protection of July 27, 2001 ( Federal Law Gazette I, p. 1950 )
  4. Criteria for determining the state of the art
  5. Law for the implementation of the directive on industrial emissions of April 8, 2013 ( Federal Law Gazette I p. 734 )
  6. European Patent Office : State of the art according to Article 54 (2)
  7. Swiss Patent Act (PatG) , (pdf; 258 kB)
  8. Law on the implementation of occupational safety measures to improve the safety and health protection of employees at work (Occupational Safety and Health Act - ArbSchG) of 7 August 1996 (Federal Law Gazette I p. 1246), which was last amended by Article 427 of the ordinance of 31 August 2015 (BGBl. I p. 1474) has been changed
  9. Overview of Arbeitsschutzrecht, accessed on 23 March 2016
  10. BGBl. 2016 I p. 2034