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[klaviernista]

Off the cuff, does anyone know of any cases that support an argument that it is possible to willfully infringe a published patent application (provided, of course, that a patent issues with substantially the same claims as the published application of which the defendant had notice)?

Thanks in advance,

Klav

[Isaac]

The cases I'm aware of suggest the opposite result.

[klaviernista]

Did a quick bit of research on this issue, and it seems my question may be a bit of a moot point. 

35 U.S.C. 284 governs damages that can be awarded for patent infringement.  According to it's terms, "When the damages are not found by a jury, the court shall assess them. In either event the court may increase the damages up to three times the amount found or assessed. Increased damages under this paragraph shall not apply to provisional rights under section 154(d) of this title."

Sections 154(d)(1) and (2) define provisional rights that stem from the date of the publication of a patent application.  I.e., if a party infringes the claims of a published patent of which he was aware, and the published claims are substantially identical to the issued (and infringed ) claims, the patentee is entitled to recover a reasonable royalty as of the a alleged infringer was aware the published application.

So, it would seem that enhanced damages are barred for infringement occuring during the provisional rights period. 

That said, Let me modify my question.  Is anyone aware of any cases in which infringement of the claims of a published patent application (which later issues with substantially identical claims) contributed to a finding that the case was "exceptional" and therefore an aware of attorney's fees was warranted under 285?