Oracle and SAP are at odds over the matter whether the concept of "hypothetical" software license fees can be factored into damages in the upcoming retrial of Oracle's intellectual-property lawsuit against SAP, and the outcome could sharply affect the scope of any judgment in the case.
Oracle sued SAP in March 2007 for actions taken by a former subsidiary, Tomorrow. Now, that provided the lower-cost support for Oracle applications.
SAP admitted liability for illegal downloads of Oracle software and support materials performed by Tomorrow . In November 2010 a jury awarded Oracle $1.3 billion against SAP based on hypothetical license fees. However, a judge tossed it out in September, saying "it grossly exceeded the harm caused to Oracle" and wasn't backed by enough evidence Oracle presented. Oracle opted to reject a lower award for $272 million, and the court ordered a new trial on damages based on lost profits, which is scheduled to begin in June.
Last week, Oracle said it would seek about $777 million in damages for lost profits in the retrial, but in April it also filed motions asking the court to allow hypothetical license damages too.