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> because the patent examiner did indeed grant the patent.

I am not a patent lawyer but I don't think that how it works. The patent examiner is not qualified to do and does not do an exhaustive check for novelness. They mainly do a procedural check.




I've been through the process both in the US and in Europe.

"Exhaustive" has a specific legal definition.

The examiner indeed identifies existing work[1] and asks for an explanation.

They usually focus on existing grants, but they also look at other applications (that are published). They do not have to pay as much attention to un-filed prior art because the US uses a "first-to-file"[2] system.

[1]: https://www.google.com/patents/US20090300541#backward-citati...

[2]: https://www.uspto.gov/sites/default/files/aia_implementation...


From your comments in this thread, your understanding of first to file is incorrect.

First to file doesn't invalidate un-filed prior art or give it lower presedence.

First to file only really matters when there are overlapping patent applications. Basically a situation where one person files first but the other applicant claims they actually invented first but didn't publish the invention.

Had the person who claims they invented first published their invention, they'd have a year to file.

If that year was up, their prior art could still prevent the other applicant from being granted a patent the same as it would be under first to invent.


> First to file doesn't invalidate un-filed prior art or give it lower presedence.

I'm not saying it invalidates anything.

I'm saying this kind of arm-chair lawyering isn't going to impress a judge.

> First to file only really matters when there are overlapping patent applications.

35 USC 102 (b).


35 USC 102 (b) covers the exception that allows an inventor up to a year to file after publishing their invention. It prevents an inventor's own disclosure from being used as prior art to deny the inventor's patent request--provided the patent was filed within a year of the disclosure.

What do you think it says?

>I'm not saying it invalidates anything.

You said this:

>They do not have to pay as much attention to un-filed prior art because the US uses a "first-to-file"[2] system.

That implies that un-filed prior art was made less important by first to file, which is incorrect.

>I'm saying this kind of arm-chair lawyering isn't going to impress a judge.

Good thing I'm not trying to impress a judge. I'm just trying to stop the spread of misinformation on first to file.


No, unfiled prior art counts as always, as long as it's published somewhere. It's only secret prior art that stopped counting.

Also, the FITF system only became effective for patents filed on or after March 16, 2013, whereas this patent was filed back in 2008.


Yes, and they have an incentive to pass as many patents as possible (because more patents is more money).


Are you saying that patent examiners are paid for each application that is filed?




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