35 USC § 154(d) provides that for a patent application which is subject to early publication [77], the applicant has provisional rights to obtain a reasonable royalty from any one who uses the invention as long as the invention as claimed in the early publication is "substantially identical to the invention as claimed in the published application." At least until case law clarifies what this means, in order to take advantage of this provision one should try to ensure that one has present in the application at least by the time it is published claims that have a good chance of proceeding to grant without the need for amendment. Additionally, if one is forced to amend and wishes to be able to take advantage of the reasonable royalty provision, one can republish the application after each amendment is filed so as to establish the earliest possible publication date for the revised claims and so maximize the period for which a reasonable royalty will be payable.

Whether one needs to change one's practice in the light of these changes in the law, however, probably depends upon whether there is any real risk that a potential infringer will wish to use the invention in the period between publication and grant of the patent. In most cases this is likely to depend on the capital investment and lead time required to carry out an infringement. A wise businessperson is unlikely to invest heavily in a development which he or she knows is likely to be patented within a year or two so that the investment cannot be productive after patenting has occurred. For inventions whose production or use requires little capital investment or lead time, there will be a large temptation for third parties to try to make some money between publication of the application and grant of the patent and the patent applicant should draft claims with these provisions in mind and consider republication after amendment.