Oracle and SAP are at odds over whether the concept of”hypothetical” software license fees can be factored into damagesin the upcoming retrial of Oracle’s intellectual-property lawsuitagainst SAP, and the outcome could sharply affect the scope of anyjudgment in the case. Oracle sued SAP in March 2007 over actions taken by a formersubsidiary, TomorrowNow, that provided lower-cost support forOracle applications. [ Also on InfoWorld: Oracle-Google decision hangs over developers’ heads . | Discover what’s new in business applications with InfoWorld’s Technology: Applications newsletter . | Get the latest insight on the tech news that matters from InfoWorld’s Tech Watch blog. Bose Acoustic Noise Cancelling Headphones
] SAP admitted liability for illegal downloads of Oracle software andsupport materials performed by TomorrowNow staff, and in November2010 a jury awarded Oracle $1.3 billion against SAP based on hypothetical license fees. However, a judge tossed theaward out in September, saying it “grossly exceeded the harm causedto Oracle” and wasn’t backed by the evidence Oracle presented.Oracle opted to reject a lower award for $272 million, and thecourt ordered a new trial on damages based on lost profits andinfringer’s profits, which is scheduled to begin in June . Last week, Oracle said it would seek about $777 million in damagesfor lost profits and infringer’s profits in the retrial, but inApril also filed motions asking the court to allow hypotheticallicense damages as well. As in the first case, Oracle is arguing that SAP should have had topay the fair market value of what it would have cost to license thedownloaded software legally, as well as to develop it. China Ludacris Soul Headphones
Oracle alsocontends that its sales representatives would have had “cross-sell”and “up-sell” opportunities associated with legal licensing deals,resulting in additional money. Oracle also faced time constraints when presenting its case duringthe first trial and will present better evidence this time around,it said. “There is no dispute between the parties that it is possible tocalculate some objective value for a hypothetical license for theOracle copyrights that SAP has admitted infringing,” Oracle said inan April 17 filing. “At the first trial, SAP conceded both thatsuch a license could be valued, and that it would be worth tens ofmillions of dollars.” But in a filing this week , SAP voiced strong opposition to Oracle’s motions. “On numerous occasions, the Court has made clear that Oracle maynot seek damages based on saved development costs orcross-sell/up-sell opportunities — whether as standalone claims orin support of Oracle’s now-precluded hypothetical license claim,”it said. China Branded Headphones
Instead, the new trial should “be limited to determining lostprofits and infringer’s profits — the issues that could and shouldhave been tried in November 2010, but for Oracle’s overreaching,”SAP added. U.S. District Court Judge Phyllis J. Hamilton has yet to rule onOracle’s motions.
Chris Kanaracus covers enterprise software and general technologybreaking news for The IDG News Service . Chris’s email address is Chris_Kanaracus@idg.com.