Development-risk defense

Directive 85/374/EEC of July 25, 1985, Article 7(e), carried into Article 1245-10 of the French Civil Code: the producer escapes liability if it proves that the state of scientific and technical knowledge, when the product was placed on the market, did not allow the defect to be detected. The whole defense assumes an object frozen at the factory gate, and a single moment at which the state of the art is measured. That worked for a boiler or a mechanical car. It doesn't work for a connected product. The maker of an embedded system keeps control of the product after the sale, through updates, telemetry and remote access. The reference moment the defense relied on dissolves into a continuous flow of changes. The revised product liability directive draws the consequence. The defense survives, but it can no longer be raised where the defect comes from a related service, an update, or a failure to update that stayed within the manufacturer's control. As long as the product keeps changing, its liability never closes.