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.
"Exhaustive" has a specific legal definition.
The examiner indeed identifies existing work 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" system.
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.
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).
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" 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.
Also, the FITF system only became effective for patents filed on or after March 16, 2013, whereas this patent was filed back in 2008.