State of the art (patent law)

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The state of the art in the sense of patent law is the amount of technical and other knowledge at the time of the patent application. This is how the patentability of the registered invention is measured. The state of the art can also be relevant for determining the scope of protection of a patent.

The same applies to utility model law.

Legal basis

In most of the world's patent systems, the state of the art is a knowledge pool that is carefully defined by law and case law and, as a result, depends on the individual case. As a rule, it is defined by positive provisions, by exceptions thereto and by application provisions for the criteria that refer to the state of the art.

  • In the German Patent Act, the state of the art is defined in Section 3 PatG by positive provisions and exceptions to it. Application provisions can be found in § 4 PatG .
  • In German utility model law, the state of the art is defined in Section 3 GebrMG . These regulations differ from those in patent law.
  • In the Austrian Patent Act 1970 (PatG), the state of the art is defined in Section 3 as in the German PatG.
  • In European patent law, the state of the art in Art. 54 EPC is defined by positive provisions in the same way as in German law. 55 mentions exceptions and 56 application provisions.
  • The French patent law follows in his articles 8 to 10 with the same system as the German and European patent law.
  • The US patent law is addressed with “USC 35” (USC = United States Code). In USC 35 , the provisions on the state of the art can be found in Sections 102 ff.

Regulatory content, meaning

The justification of patent law lies in the idea of ​​a reward for above-average enrichment of the technology and the amortization of corresponding expenses. That is why the patentability of an invention is determined on the basis of the “surplus” it provides over a more precisely defined prior knowledge base.

In addition, the legal conflict of identical patent applications submitted promptly, which cannot be resolved using the published state of knowledge due to the lack of prior publication of the two applications with one another, must also be resolved.

In order to achieve the two goals above, two aspects are of primary importance in all major patent systems in the world today:

  • the seniority system of the younger patent applications to be assessed for patentability
  • the time of publication of technical teachings or the seniority of previously filed patents

Technical teachings that became known prior to the seniority of the patent application to be assessed are defined as state of the art and are referred to in the jargon as "prior art". Technical teachings that were filed for patent before the seniority of the patent application to be assessed for the same territory, but were only published later, are also defined as state of the art and are referred to in the jargon as "not pre-published state of the art" or "post-published state of the art" Technology ”or sometimes just called“ older law ”.

A technical teaching cannot by itself be classified as belonging to the "state of the art" or not. Rather, this classification is always only possible and meaningful relative to a patent application to be assessed.

Preliminary remark: seniority

The seniority of a patent application determines the cut-off date on and from which a publication or a teaching or its application for a patent no longer counts as prior art against the patent application.

Pre-published state of the art

In order for a technical teaching to qualify as pre-published state of the art, it must have become known before the priority of the patent application to be assessed. Becoming known also means that the teaching could legitimately have become known (e.g. if it was built into a product that was sold). The smallest unit is a day.

In patent law, when it comes to knowledge, neither the type nor the place nor the language of the publication or the becoming known matter. Publication includes technical descriptions, verbal presentations or prior public use of a product. The place can be anywhere in the world. The language can also be a relatively unknown one.

It doesn't matter whether an inventor actually knew a certain content. For the assessment of material patentability, it is assumed that a person skilled in the art was completely familiar with the current state of the art. It cannot be "argued away" qualitatively. It can only be argued against its factual relevance.

The state of the art claimed and used must be substantiated both in terms of content and circumstances of publication. This document is particularly easy to provide for published patent applications, because the official publication means that both the content and the date of publication are unequivocally clear.

Older rights than prior art

It is not uncommon for the situation to arise that similar or identical patent applications from different or even the same owners are filed, but without the older one being published when the younger one is applied for. The older application is then not pre-published compared to the younger one. Nevertheless, it is faked as the state of the art against the younger ones . This prior art not pre-published by prior rights is used in most patent systems

  • only taken into account insofar as the rights are in conflict, ie insofar as they concern the same territory, ie in "inland", and
  • is often treated differently than prepublished prior art.

General professional knowledge

For simple features, general technical knowledge is sometimes assumed to be state of the art beyond concrete evidence. From an empirical point of view, it comes in two different qualities:

  1. On the one hand, there is the background knowledge that a person skilled in the art has and that he easily combines with explicitly given teachings. In car technology, these can be statements such as "There are cars that are equipped with an electric motor and an internal combustion engine."
  2. On the other hand, this also partially addresses the knowledge that a person skilled in the art reads into a text and thus regards as the content of the text read without it being explicitly listed there. For example, for cars this is the knowledge that a car can have four wheels, even if it is not written. The difference from 1. above is relevant when it comes to understanding the content of earlier rights. Their content must not be viewed systematically in combination with other content, because otherwise one would be outside the legal requirements in the evaluation ("... is considered new if it does not belong to the state of the art").

If general professional knowledge is given without evidence, one can try to argue qualitatively against it.


Grace period

In utility model law, a publication does not belong to the state of the art if it was made within six months prior to the filing date and goes back to the applicant himself. In other words, you can still register a utility model six months after the publication of your own invention without your own announcement conflicting with it as state of the art. This option does not exist in German and European patent law.

US law grants a grace period of one year compared to its own pronouncement.

Confidentiality Agreement

A disclosure of the invention to a third party prior to its first application for a patent would a priori be considered state of the art. However, if the disclosure is made under a non disclosure agreement (NDA), it does not qualify as state of the art. In this way it is possible for the inventor to cooperate with others regarding his invention and to exchange ideas about it before it is registered without this counting as prior art against him.


An improper publication of the invention to the disadvantage of the applicant is also disregarded if it was not made earlier than six months before the filing date of the invention.

Relevance for patentability

In all major patent systems in the world, an invention applied for for patenting must be new and inventive compared to the state of the art.

"Novelty" criterion

For the criterion of novelty, both the pre-published and the not pre-published state of the art are used.

"Inventive step" criterion

For the criterion of inventive step, the relevant regulations stipulate that only the previously published state of the art should be used, but not that which has not been published in advance.

"Uniformity" criterion

A patent can only protect one invention. If a patent application contains several independent patent claims , these are regarded as one invention and are therefore permissible if the prior art can be argued for in the same way for both. If, on the other hand, the state of the art requires different arguments for the different claims, they are considered to be different inventions and are not allowed together. One must then be deleted and can then be followed up in a divisional application if necessary .


The state of the art can also be relevant for understanding the information in the patent application itself. It happens again and again that terms cannot be understood on their own. Then the entire content of the patent application must first be used to interpret the term. If there are still questions unanswered, reference can be made to the state of the art.

Relevance to protection area


The same applies as above for interpretation .

German infringement law: "molded stone wall"

In the area of ​​identical patent infringement, the infringement judge must accept the patent as it was granted or maintained by the patent office or the patent court. He may not decide that the patent is invalid compared to the state of the art. If, on the other hand, patent infringement is argued in the area of ​​equivalence, it is not bound by a decision to grant. He can then decide that the embodiment argued in an equivalent manner is not a patentable invention compared to the prior art, and thus deny the patent infringement.


Own announcement

In most patent systems, your own pronouncement is also included in the state of the art. This includes the German and the European. However, some patent systems grant the above. Grace period .

German utility model law

Many material patent regulations have been standardized across Europe, including those relating to the state of the art. The German utility model law, however, has some special features, also with regard to the current state of the art. The prior written publications are relevant as in patent law. However, unlike in patent law, the obvious prior uses are only relevant if they were made in Germany.


A patent search for the respective state of the art, something in the STN International database , enables an invention to be assessed as a patentable novelty before registration .

In the patent examination procedure, the patent examiners research the state of the art and communicate the result to the applicant. Opponents or nullity plaintiffs against a patent can conduct private searches and report any material they find to the patent office.

Obligation to provide

American patent law obliges the applicant to notify the patent office of any state of the art that has become known to him ( IDS - invention disclosure statement ). In German and European patent law, the offices can request the state of the art that has become known in parallel proceedings.