Oracle Corp v. SAP AG

A plaintiff does not have to show it would have actually licensed its material to receive a hypothetical-license damage award, however, a hypothetical-license award cannot be based on undue speculation.

Oracle et al.(“Oracle”) brought suit against SAP et al.(“SAP”) alleging that TomorrowNow, an enterprise software company recently acquired by SAP, was engaging in systematic and pervasive illegal downloading of Oracle’s software. The jury awarded Oracle $1.3 million dollars but the district court granted a judgment as a matter of law (“JMOL”) for SAP stating that “Oracle failed to provide enough evidence for a jury to establish an objective, non-speculative price.” The District Court ordered a new trial conditioned on Oracle’s rejection of a remittitur and ruled that Oracle would not be able to argue for, or present evidence of, hypothetical-license damages. On appeal, Oracle argues among other things that the JMOL was incorrect, the grant of a new trial was incorrect, and the ruling that Oracle could not pursue hypothetical-license damages was incorrect. The panel upheld the district court’s grant of JMOL, but distinguished the merits of SAP’s arguments. It held that the JMOL should have been granted because the jury’s hypothetical-license damage award was based on undue speculation. However, the panel disagreed with SAP’s argument that Oracle would have had to show that it would have granted TomorrowNow a license to receive hypothetical-license damages. Nonetheless, because there was undue speculation, the JMOL was upheld. Finally, the panel held that the remittitur was erroneously set at $272 million. AFFIRMED in part, VACATED in part, and REMANDED.