Oracle Corp. v. Sap Ag

Oracle Corporation and SAP AG are competitors in the enterprise software market. In 2007, Oracle et al. (collectively, “Oracle”) brought suit against SAP et al. (collectively, “SAP”) alleging that To-morrowNow, an enterprise software company recently acquired by SAP, was engaging in systematic and pervasive illegal downloading of Oracle’s software. SAP eventually stipulated to liability, and the parties went to trial solely on damages.

The jury awarded Oracle $1.3 billion as the fair market value of a hypothetical license from Oracle encompassing SAP’s infringement of Oracle’s copyrights. SAP moved for judgment as a matter of law (“JMOL”) on two grounds: (1) that Oracle failed to show that it actually would have granted a license; and (2) that Oracle failed to provide enough evidence to permit the jury to establish an objective, non-speculative hypothetical-license price. The district court granted JMOL, making clear in a later order that it agreed with only the second of the two grounds.

The district court ordered a new trial, conditioned on Oracle’s rejection of a $272 million remittitur measured by the copyright holder’s lost profits plus infringer’s profits, rather…