This case was originally filed in 2012 in Massachusetts. The case went to trial and BU won on infringement and validity, with the jury awarding damages in the form of a fully paid-up lump sum. On the jury verdict form, the jury chose a one-time payment for the life of the patent, as opposed to a running royalty rate based on sales.
The interesting question for damages came in post-judgment motions, when BU asked for prejudgment interest. BU argued such interest should accrue from the date of the hypothetical negotiation (i.e., January 2000), rather than from the point in time six to twelve years (for the three defendants) later, when notice occurred and damages began to accrue.
In her opinion, Judge Saris explained that since damages could not accrue until after the hypothetical negotiation, prejudgment interest could also not accrue until notice occurred. Her conclusion was based largely upon BU’s lack of supporting case law:
On December 8, 2017, the CAFC heard oral arguments on the issue (N.b., the relevant argument begins at 29 minutes & 30 seconds into the recording available below). The prejudgment interest case discussed was Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 655 (1983). Counsel for BU argued that the case supports the notion that lump-sum damages awarded by a jury should accrue interest from the hypothetical negotiation. It will be interesting to read the Court’s eventual opinion on this specific issue.