Oracle Corporation et al v. SAP AG et al

Filing 1022

Declaration of Tharan Gregory Lanier in Support of 1021 Response filed by SAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21)(Related document(s) 1021 ) (Froyd, Jane) (Filed on 12/23/2010) Modified on 12/27/2010 (kc, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 1022 Att. 7

EXHIBIT 7

Dockets.Justia.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE PHYLLIS J. HAMILTON, JUDGE ORACLE CORPORATION, ET AL. ) ) PLAINTIFFS, ) ) VS. ) ) SAP AG, ET AL., ) ) DEFENDANTS. ) ____________________________) JURY TRIAL NO. C 07-01658 PJH VOLUME 12 PAGES 2021 - 2230 OAKLAND, CALIFORNIA MONDAY, NOVEMBER 22, 2010

TRANSCRIPT OF PROCEEDINGS APPEARANCES: FOR PLAINTIFFS: BY: BINGHAM MCCUTCHEN LLP THREE EMBARCADERO CENTER SAN FRANCISCO, CALIFORNIA 94111-4607 ZACHARY J. ALINDER, HOLLY A. HOUSE, GEOFFREY M. HOWARD, DONN P. PICKETT, ATTORNEYS AT LAW BOIES, SCHILLER & FLEXNER LLP 1999 HARRISON STREET, SUITE 900 OAKLAND, CALIFORNIA 94612 DAVID BOIES, STEVEN C. HOLTZMAN, ATTORNEYS AT LAW

BY:

(APPEARANCES CONTINUED NEXT PAGE)

REPORTED BY:

RAYNEE H. MERCADO, CSR NO. 8258 DIANE E. SKILLMAN, CSR NO. 4909

RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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CLOSING ARGUMENT \ BOIES YEAH, MOVE IT UP HIGHER. MR. BOIES: THAT WORK BETTER?

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(OFF-THE-RECORD DISCUSSION.) MR. BOIES: THE COST OF THE DEVELOPING SOFTWARE AND

CONTINUOUSLY IMPROVING THAT SOFTWARE IS VERY EXPENSIVE. NOW, BECAUSE THE COST ASSOCIATED WITH SERVICING ADDITIONAL CUSTOMERS IS LOW, SOFTWARE SUPPORT IS A VERY, VERY HIGH-MARGIN BUSINESS. YOU HEARD MR. ELLISON SAY THAT. YOU'VE

HEARD SEVERAL WITNESSES, INCLUDING THE DEFENDANTS' WITNESSES, SAY THIS. THIS MEANS THAT THE PROFITS THAT YOU GET FROM INDIVIDUAL CUSTOMERS, THE ADDITIONAL CUSTOMERS IS VERY HIGH. YOU NEED THAT PROFIT TO PAY FOR THE RESEARCH AND DEVELOPMENT THAT GOES INTO BUILDING SOFTWARE IN THE FIRST PLACE. ONCE YOU

DESIGN, DEVELOP, TEST SOFTWARE, THE ADDITIONAL COST OF DELIVERING IT IS VERY SMALL. THE REASON THAT THAT'S IMPORTANT

IS IT MEANS EACH INCREMENTAL CUSTOMER, EACH ADDITIONAL CUSTOMER, IS VERY, VERY VALUABLE. IF CUSTOMERS ARE LOST, THE SUPPLIER LOSES THE PROFIT FROM THOSE CUSTOMERS. AND IF ALL CUSTOMERS WERE THE SAME --

LIKE, FOR EXAMPLE, IF YOU'RE BUILDING AN AUTOMOBILE, BECAUSE SO MUCH OF THE COST OF THE AUTOMOBILE GOES INTO EACH CAR THAT'S MANUFACTURED, IF YOU LOSE A CUSTOMER, AN ADDITIONAL CUSTOMER IN THE AUTOMOBILE INDUSTRY, YOU SIMPLY LOSE THE PROFIT FROM THAT ONE CAR.
RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR [phone]

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VALUE. THE FAIR VALUE MARKET VALUE IS AN OBJECTIVE MEASURE OF ORACLE'S DAMAGES THAT IS MEANT TO APPROXIMATE THE FAIR MARKET VALUE OF A LICENSE FOR ALL OF THE COPYRIGHTS DEFENDANTS' INFRINGED CALCULATED AT THE TIME THE INFRINGEMENT COMMENCED, WHICH THE PARTIES AGREE IS JANUARY 19TH, 2005 FOR THE PEOPLESOFT, J.D. EDWARDS AND THE DATABASE COPYRIGHTS, AND SEPTEMBER 29TH, 2006 FOR THE SIEBEL COPYRIGHTS. THE VALUE OF A HYPOTHETICAL LICENSE IS NOT NECESSARILY THE AMOUNT THE DEFENDANTS IN THIS CASE WOULD HAVE AGREED TO PAY OR THAT ORACLE WOULD HAVE ACTUALLY AGREED TO ACCEPT. YOU MAY CONSIDER EVIDENCE OF EVENTS AND FACTS THAT

HAPPENED AFTER THE DATE OF THE HYPOTHETICAL NEGOTIATION ONLY TO THE EXTENT THAT IT PROVIDES INSIGHT INTO THE EXPECTATIONS OF THE PARTIES AT THE TIME THE INFRINGEMENT FIRST BEGAN OR INSIGHT INTO THE AMOUNT A WILLING BUYER WOULD HAVE BEEN REASONABLY REQUIRED TO PAY A WILLING SELLER AT THE TIME OF INFRINGEMENT. AND YOU MAY NOT LIMIT OR INCREASE THE FAIR MARKET VALUE OF THE RIGHTS INFRINGED BASED ON THE ACTUAL PROFITS DEFENDANTS MADE. IF YOU DECIDE THAT THE BEST MEASURE OF ORACLE'S DAMAGES IS LOST PROFITS, YOU MUST DETERMINE WHAT PROFITS ORACLE PROVES IT WOULD HAVE MADE WITHOUT THE INFRINGEMENT. LOST PROFITS ARE THE REVENUE ORACLE WOULD HAVE MADE WITHOUT THE INFRINGEMENT LESS ANY ADDITIONAL EXPENSES IT WOULD HAVE INCURRED IN MAKING THE SALES.

DIANE E. SKILLMAN, OFFICIAL COURT REPORTER, USDC [phone]

2230 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TUESDAY, NOVEMBER 23, 2010 ___________________________________ DIANE E. SKILLMAN, CSR, RPR, FCRR ___________________________________ RAYNEE H. MERCADO, CSR, RMR, CRR, FCRR, CCRR CERTIFICATE OF REPORTER WE, RAYNEE H. MERCADO AND DIANE E. SKILLMAN, OFFICIAL REPORTERS FOR THE UNITED STATES COURT, NORTHERN DISTRICT OF CALIFORNIA, HEREBY CERTIFY THAT THE FOREGOING PROCEEDINGS IN C07-01658PJH, ORACLE USA, INC., ET AL. V. SAP AG, ET AL., WERE REPORTED BY US ON, MONDAY, NOVEMBER 22, 2010, CERTIFIED SHORTHAND REPORTERS, AND WERE THEREAFTER TRANSCRIBED UNDER OUR DIRECTION INTO TYPEWRITING; THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE RECORD OF SAID PROCEEDINGS AS BOUND BY US AT THE TIME OF FILING. THE VALIDITY OF THE REPORTER'S CERTIFICATION OF SAID TRANSCRIPT MAY BE VOID UPON DISASSEMBLY AND/OR REMOVAL FROM THE COURT FILE.

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