I understand that the AIA considers prior art (among other states of publication/use not relevant here) anything that is greater than 12 months from the date of inventor's disclosure. I understand that works disclosed within that 12 month period by the inventor isn't considered prior art as well as publications which derived from the inventors disclosure. But, from what I read (and may need clarifying on), is if that 3rd party creates that same invention/element(s) of that invention independently in the grace period before the inventor files for a patent, the 3rd party would be able to challenge the inventor's patent with a request for re-examination via submission of the 3rd party's evidence. However, I read here (https://www.ipwatchdog.com/2017/06/10/patentability-novelty-requirement-102/id=84321/):
Under the U.S. first to file system it is true that the inventor will still have a personal grace-period to remove their own disclosures. This personal grace-period says that the inventor’s own disclosures, or the disclosures of others who have derived from the inventor, are not capable of being used as prior art as long as they occurred within 12 months of the filing date of a patent application. However, and this is a very big however, disclosures of third-parties who independently came up with the invention information themselves will be used against the inventor unless the disclosure is of the same subject matter.
Does this bold part mean that an independent 3rd party who releases a printed publication which is of the same subject matter of the inventor's disclosure after the inventor's disclosure and before the inventor's filing mean that the independent third party will be unable to effectively file their work as prior work or would they be able to file certain elements of it?
To clarify, I'm assuming subject matter means the contents of the elements of the independent 3rd party matches the contents of the inventor's disclosure/patent in a definitive way. Also, the 3rd party mentioned throughout this question has no intention to file a patent and wants to keep a patent from being enforceable. When I refer to disclosures I'm referring to the USPTO definition of "printed publication(s)"
The reason why I find this confusing is that the law described here looks like it's putting the burden on the patent holders to file before anyone else but screwing anyone who doesn't see the inventor's disclosure. I feel it should be fair game (i.e. spontaneous disclosures of the same thing by an independent body that can be enforced/protected) up until the inventor files. Any accurate clarification would be helpful.