Oracle asks for retrial against SAP in TomorrowNow case

A federal judge last year lowered the award to Oracle by $1 billion

Oracle has chosen a new trial in its lawsuit against SAP for copyright infringement, rejecting the reduction of a jury verdict by about $1 billion by a federal court in September last year.

The company rejected the Judge's ruling lowering the jury verdict, and chose a new trial, Oracle's attorney, Geoffrey M. Howard said in a filing Monday before the United States District Court, Northern District of California, Oakland division.

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"We are disappointed that Oracle has passed up yet another opportunity to resolve this case," SAP said in a statement. "We will continue to work to bring this case to a fair and reasonable end."

Judge Phyllis Hamilton overturned in September a $1.3 billion award Oracle won against SAP in its corporate theft trial, in which SAP admitted liability for illegal downloads of Oracle software and support materials by a former subsidiary, TomorrowNow, which provided lower-cost support for Oracle applications.

The Judge however approved SAP's request that Oracle accept a lower award. The verdict grossly exceeded the actual harm to Oracle in the form of lost customers, she said.

If Oracle were to reject the reduction of the amount to $272 million, the court would order a new trial as to the amount of actual damages, Judge Hamilton said.

Oracle had argued that SAP should pay damages based on a "hypothetical" cost that SAP would have to pay to license the software legally. The court found that there was insufficient evidence for a reasonable jury to find that Oracle was entitled to a hypothetical license.

Accepting the Judge's ruling would force Oracle to risk waiving its right to appeal the court's decision on motions for judgment as a matter of law and for a new trial, Howard said in the filing.

"Oracle's objective is to obtain clarification of the law and, if it is right about what the law is and what the evidence supports in this case, to vindicate the verdict of the jury and Oracle's intellectual property rights as a copyright owner," Howard added.

John Ribeiro covers outsourcing and general technology breaking news from India for The IDG News Service. Follow John on Twitter at @Johnribeiro. John's email address is

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