You are incorrect. Trade Secret laws and prior continuous use protect SpaceX very well if someone were to swoop in and patent a technology they use.
It wouldn't necessarily prevent a patent from being obtained, but it would protect SpaceX from being found in violation. I know this from first hand experience.
Disclaimer: I am a former software engineer turned patent attorney. However, I am not your lawyer, nor am I the lawyer of anyone who reads this. (Sorry, I have to say that)
Anyway, another thing that many people miss on the "first to file" issue is that it's the first INVENTOR to file. So, employee can't leave company, steal the invention, then file if employee was not the inventor.
The law really is only changing in the situation where two people invent the same thing, independently of one another. Under the current law, if both inventors file, only one is entitled to the patent - the inventor who actually invented it first (perhaps determined in an interference proceeding in the patent office or perhaps in court). Each inventor would try to prove the date of invention through documentation (keep those lab notebooks - or that git repo, or the old svn or cvs repo backed up!). Whoever successfully proves an earlier date of invention wins.
Under the new law, it's just who filed first. If two people file for the same invention, there will be a "derivation" proceeding in the patent office to determine whether one of the inventors "derived" his/her invention from another (ie, is that person actually the inventor).
The period to file was supposed to be important though in non-conflicting applications. It allowed, for example, potential applicants to seek investment in various ways without fear of a specified disclosure causing loss of priority. Do you know how much inventors availed themselves of that ability?
This career choice is not for everyone. It can be very stressful, but also very rewarding.
Although I do write software patents for some clients, my practice is more broad than that. I deal with patent, trademark, and copyright (intellectual property) issues, as well as contracts regarding software, books, art, and ip issues. I also handle litigation about all of those issues.
No. We are afraid that someone will read what we say and think that we represent them or are giving them legal advice. We have to be very careful about what we say we are doing and what we say we're not doing. If you go to your doctor and he says you need to have a mole removed, if you don't schedule an appointment to have the mole removed, it's your fault. With legal services, if I tell someone they need to file a patent or what not, if it's not really clear that I'm not doing it unless they engage me to, then they might have an argument that they thought I was taking that action.
So, on most legal blogs, you'll see something that says "I'm not the reader's lawyer."
I disagree it happens on "most" legal blogs, maybe legal blogs written by lawyers who don't understand the law. Show me one case where a lawyer has been successfully sued for "offering legal advice" through a public blog post or comment. There is no basis for these disclaimers and the practice just pollutes discussion.
Prior Use Right says that if a you have used a technology commercially for more than a year prior to the file date of a patent[1], or public disclosure thereof if your technology is a derivative of the that disclosure, you cannot be held in violation of the patent. This holds regardless of if you have publicly disclosed your use of this technology or not.
When you combine this with Trade Secret law you protect yourself from one of your employees taking your technology, starting a new company and patenting it (potentially coming in under the 1 year mark).
First-to-File only comes into play when multiple entities file for overlapping patents, it simply finds in favor of the first to file for a provisional patent. This avoids a mess of trying to determined who came up with the idea first, which was always a contest of who documented first.
[1] You could still be in violation and not know it as provisional patents are non publicly disclosed for 18 months, so in reality there is technically a 2.5 year window where you can't be absolutely sure someone else has filed.
It wouldn't necessarily prevent a patent from being obtained, but it would protect SpaceX from being found in violation. I know this from first hand experience.