$1.33 billion damages fails for lack of ‘real world’ comparables

In another high-profile, high-stakes litigation concerning high-tech IP, a jury awarded the plaintiff (Oracle USA) $1.3 billion in damages against the defendant SAP, the world’s largest business application software manufacturer. Not only was the jury award the largest in 2010—and the largest ever for copyright infringement—but it also equaled the defendant’s 4Q2010 net income, according to recent reports. On appeal in 2011, the defendant claimed the award was “grossly excessive” and based on “fictitious” evidence. In particular, since Oracle admitted that it never would have licensed the software in the “real world” and no comparable licenses existed, its expert simply “invented” the price of a hypothetical license, the defendant argued, relying on factors such as the amount that Oracle executives claimed they would have charged for a license (unsupported by any benchmark deals), and the value of the infringed technology as a whole, including the costs of acquisition and development.

The U.S. District Court agreed, finding the plaintiff’s expert “confused the jury” by presenting “fictitious and speculative negotiating factors” that he purportedly derived fromGeorgia-Pacific but which actually came from the “self-serving” testimony by Oracle executives. Look for the complete digest of Oracle USA, Inc. v. SAP AG, 2011 WL 3862074 (N.D. Cal.)(Sept. 1, 2011), in the November Business Valuation Update; the court’s opinion is posted at BVLaw.