How do consultants find prior art that patent examiners miss?

Ever wonder how consulting organizations work to help discover prior art for patent infringement defendants?  Let’s look at one case in particular, where Patexia was asked to help.

Company A is sued for infringing patent claims granted on a type of ear muff. Their best defense may be to invalidate the patent in suit, rather than mount an “I didn’t infringe…” defense. Company A determines its best shot at invalidating the patent is to find prior art not discovered by the initial examiner.  The company engages a consultant to help find that prior art.

In this case, Company A went to Patexia, an organization founded in 2010, asking for a search for prior art on claims 14-20 of US patent 6,735,784  - “Apparatus and method for making an ear warmer and an ear warmer frame.” Patexia has a following, a network, a membership community of over 2,000 science and technology experts, and the company incentivizes the community to help search for prior art through contests.

The problem is delineated, complete with pictures and patent claim explanations, with as much detail as practicable, including known references, and then a contest is created with prize money that is probably commensurate with the amount  Patexia is getting from the defendant company. The contest pays off to the individual who submits the best solution.  There are referral fees that come out of the prize money as well.

Finally, in order to determine the best submission, there are a series of questions specific to the patent in suit submitters must try to answer:


The reference(s) should clearly satisfy the following:

For claims 9-11 of the ‘645 patent and claims 14 – 21 of the ‘784 patent:

  1. Was it published before April 5th, 1999 (clearly dated)?
  2. Does it show ear warmers shaped approximately like those pictured?
  3. Does the ear warmer have a shell?
  4. Is there a solid frame inside the shell?
  5. Is the frame single (unitary)?
  6. Does the frame have an ear portion that defines an opening?
  7. Is the width of the middle portion smaller than the width of the ear portions?
  8. Is the frame inside the ear portion substantially circular?
  9. Is the frame approximately shaped like that in Fig. 3 (picture supplied on website)?
  10. Is the outer shell made by attaching (sewn/glued) the edges of two flat pieces of material shaped like Fig. 1 (picture supplied on website)?
Contest entries could have alternatively include a combination of several references from which the above ear warmers are obviously made.