There are a lot of concerns about first to file, but I think they're overblown because they ignore the context in which "first to file" versus "first to invent" comes into play: when there are two simultaneous patent applications.
What the AIA does is two-fold:
1) It changes the rule from "first to invent" to "first to file" when two inventors simultaneously seek a patent for the same invention;
2) It expands the "prior user rights" defense so that if you've been using a technology commercially for a year before the patent filing, you're not liable for infringement.
So if you weren't going to patent something, and keeping it as a trade secret instead, it's not clear that under AIA you have a new incentive to go patent it. If you weren't going to patent it anyway, there wasn't going to be a "dueling applications" situation, and "first to file" wasn't going to come into play anyway. And if you disclosed the technology instead of keeping it secret, then prior art comes into play and AIA expands the cases in which prior art can be used to invalidate a patent.
I'd personally like to see a merging of the "prior user rights" and "prior art" defenses. It should be possible to invalidate a patent by showing that someone else was using the technology before the patent was filed, even if that other person didn't publish.
Of course, one way to achieve that effect under current rules is to publish instead of keeping technology secret. If the tech community is really opposed to patents, especially software patents, then it should take additional measures to publish exactly how all their technologies work. This is something Google, etc, can take the lead on without waiting for legislation. Establish a rich database of prior art that can be used to invalidate future patents.
What the AIA does is two-fold:
1) It changes the rule from "first to invent" to "first to file" when two inventors simultaneously seek a patent for the same invention;
2) It expands the "prior user rights" defense so that if you've been using a technology commercially for a year before the patent filing, you're not liable for infringement.
So if you weren't going to patent something, and keeping it as a trade secret instead, it's not clear that under AIA you have a new incentive to go patent it. If you weren't going to patent it anyway, there wasn't going to be a "dueling applications" situation, and "first to file" wasn't going to come into play anyway. And if you disclosed the technology instead of keeping it secret, then prior art comes into play and AIA expands the cases in which prior art can be used to invalidate a patent.
I'd personally like to see a merging of the "prior user rights" and "prior art" defenses. It should be possible to invalidate a patent by showing that someone else was using the technology before the patent was filed, even if that other person didn't publish.
Of course, one way to achieve that effect under current rules is to publish instead of keeping technology secret. If the tech community is really opposed to patents, especially software patents, then it should take additional measures to publish exactly how all their technologies work. This is something Google, etc, can take the lead on without waiting for legislation. Establish a rich database of prior art that can be used to invalidate future patents.