Oracle, SAP Still Going At It Over TomorrowNow
February 28, 2011 Timothy Prickett Morgan
Will this lawsuit between Oracle and SAP concerning the long-defunct TomorrowNow third-party software support business ever end? It sure doesn’t look like it. Last week, after mulling over Oracle’s $1.3 billion jury award from last November for a few months, SAP’s lawyers came back and filed motions with the United States District Court for the Northern District of California in Oakland suggesting to Judge Phyllis Hamilton that the jury award was way out of whack with the reality of the damage caused by TomorrowNow. Back in March 2007, you will recall, after SAP had acquired TomorrowNow to offer third-party support for JDE, PeopleSoft, and Siebel Systems applications then owned by Oracle, the database and application giant sued SAP for billions in dollars of damages alleging that TomorrowNow was taking Oracle documentation and patches to do offer support to customers. TomorrowNow had 358 customers, and SAP has argued that the damages to Oracle were on the order of $28 million to $41 million. SAP has not contested the claims made by Oracle over how TomorrowNow operated, and agreed to pay legal fees before the trial started last October. But in its filings last week, it once again said that the actual damage to Oracle was a mere $28 million. “The jury’s award of hypothetical license damages totaling $1.3 billion was contrary to the weight of the evidence and grossly excessive,” SAP’s lawyers argued in their brief. “The verdict was based on Oracle’s legally improper hypothetical license theory and the unduly speculative evidence Oracle offered in support, rather than on evidence of defendants’ actual use of the copyrighted works and the objectively verifiable number of customers lost as a result. Oracle presented irrelevant evidence of purported value of intellectual property as a whole, elicited self-serving testimony of its executives regarding the price they might have demanded in an admittedly fictional negotiation, and tendered the wholly speculative opinion of its damages expert, which was based on little more than guesses about the parties’ purported expectations based on documents that evinced only one party’s subjective hopes, goals, and assumptions. At the same time, Oracle urged the jury to disregard evidence of Oracle’s actual customer losses resulting from infringement. Consequently, the verdict grossly exceeded the actual harm to Oracle in the form of lost customers, which was quantified by both sides’ experts (at $28 million by SAP’s expert and at $408.7 million by Oracle’s expert). Oracle’s daily presentation of prejudicial liability evidence, irrelevant to calculating damages, further distracted and inflamed the jury.” That sounds about right to me, but I ain’t no lawyer. And it seems likely that SAP will get its motion for a new trial upheld. The next round of hearings in the case will begin on July 13. RELATED STORIES SAP to Contest $1.3 Billion TomorrowNow Award to Oracle Rimini Street Says Third Party Support Biz Is Booming Jury Says SAP Owes Oracle $1.3 Billion Over TomorrowNow Theft Oracle and SAP Talk Settlement on TomorrowNow Legal Fees The Oracle vs. TomorrowNow/SAP Courtroom Drama Goes on as Scheduled Oracle to Put New HP CEO on the Stand in TomorrowNow Lawsuit Eyebrows Go Up as HP Hands the Reins to Former SAP CEO SAP Bows to Oracle on TomorrowNow, Argues Damages Rimini Street Counter Sues Oracle Big Executive Shakeup and Shakeout at SAP Oracle Sues Rimini Street Over Support Intellectual Property Third-Party JDE Maintenance Business Is Thriving Rimini Street Gets Equity Investment from Adams Street Rimini Street Says JD Edwards Support Business Quadrupled Last Year Oracle and SAP Still Haven’t Settled the TomorrowNow Suit SAP Shuts Down TomorrowNow Support Biz Top Execs at TomorrowNow Depart, SAP Hints at Sale netCustomer Delivers Regulatory Updates for J.D. Edwards, PeopleSoft netCustomer Capitalizes on Dissatisfaction with Oracle NetCustomer Discounts Third-Party Support Offerings for J.D. Edwards Shops Oracle-SAP Suit: TomorrowNow Acted Improperly, Admits SAP TomorrowNow Says Biz is Booming, Opens Mexico Office Oracle Sues SAP Over ‘Corporate Theft on a Grand Scale’ TomorrowNow Takes Steps to Ensure Rapid Response TomorrowNow Expanding Third-Party Maintenance Business J.D. Edwards Shops Get New Maintenance Options Rimini Street Hires SAP Execs as TomorrowNow Expands Operations Rimini Street Offers JDE Support Services netCustomer Tempts J.D. Edwards Shops with Third-Party Support
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