(Adds Oracle statement in paragraph 5)
By Jonathan Stempel and Dan Levine
Aug 29 Oracle Corp failed to revive a
$1.3 billion jury verdict in its long-running copyright dispute
with German software company SAP SE as a U.S. appeals
court said Oracle must choose to accept a lower amount or face a
In a ruling on Friday, the 9th U.S. Circuit Court of Appeals
in San Francisco said jurors used "an undue amount of
speculation" in awarding $1.3 billion in damages in 2010.
But the court found U.S. District Judge Phyllis Hamilton in
Oakland, California, had erred in concluding that Oracle
deserved only $272 million of damages, a sum Oracle rejected.
Writing for a three-judge 9th Circuit panel, Judge William
Fletcher directed Hamilton to offer Oracle a choice of $356.7
million of damages or a second trial.
In a statement, Oracle general counsel Dorian Daley said the
company is "thrilled about this landmark recovery." Asked
whether Oracle will accept the $356.7 million or proceed to
another trial, a company spokeswoman declined to comment.
SAP spokesman Andy Kendzie said the ruling is favorable and
"shows the strength of our position."
The case involved SAP's TomorrowNow unit, which the German
company had bought to provide software support to Oracle
customers at lower rates than what Oracle charged, hoping to
persuade them to become SAP customers.
Oracle sued SAP in 2007 after noticing thousands of
suspicious downloads of its software.
SAP later conceded that its employees were illegally
downloading Oracle files, but it couldn't agree with Oracle on
damages. The 2010 trial between the two enterprise software
competitors was widely watched at the time, as top Oracle
executives Larry Ellison and Safra Catz testified.
Subsequently, SAP agreed to pay Oracle $306 million, but
that agreement allowed Oracle to seek to restore the jury
verdict, or win a retrial based on its own damages theories.
During the 2010 trial, Oracle had said internal SAP
documents showed the German software company expected over $1
billion in revenue from TomorrowNow. However, the 9th Circuit
rejected that reasoning given that SAP had paid much less to buy
"If SAP truly anticipated that TomorrowNow would produce a
$1.3 billion benefit to SAP, as Oracle contends, a $10 million
acquisition price is strikingly low," Fletcher wrote.
In finding the $272 million damages award "below the maximum
amount sustainable by the proof," Fletcher said Hamilton erred
in finding that Oracle had lost just $36 million of profit, when
the proper figure should have been $120.7 million.
The case is Oracle Corp et al v. SAP AG et al, 9th U.S.
Circuit Court of Appeals, No. 12-16944.
(Reporting by Jonathan Stempel in New York and Dan Levine in
San Francisco; Additional reporting by Maria Sheahan; Editing by
Leslie Adler and Jonathan Oatis)