Oracle Corporation et al v. SAP AG et al

Filing 1089

MOTION for 1292(b) Certification for Interlocutory Review filed by Oracle International Corporation. Responses due by 10/7/2011. Replies due by 10/14/2011. (Attachments: # 1 Proposed Order)(Howard, Geoffrey) (Filed on 9/23/2011) Modified on 9/26/2011 (kc, COURT STAFF).

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BINGHAM MCCUTCHEN LLP
DONN P. PICKETT (SBN 72257)
GEOFFREY M. HOWARD (SBN 157468)
HOLLY A. HOUSE (SBN 136045)
ZACHARY J. ALINDER (SBN 209009)
BREE HANN (SBN 215695)
Three Embarcadero Center
San Francisco, CA 94111-4067
Telephone: [phone]
Facsimile: 415.393.2286
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
BOIES, SCHILLER & FLEXNER LLP
DAVID BOIES (Admitted Pro Hac Vice)
333 Main Street
Armonk, NY 10504
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
STEVEN C. HOLTZMAN (SBN 144177)
FRED NORTON (SBN 224725)
1999 Harrison St., Suite 900
Oakland, CA 94612
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
DORIAN DALEY (SBN 129049)
JENNIFER GLOSS (SBN 154227)
500 Oracle Parkway, M/S 5op7
Redwood City, CA 94070
Telephone: [phone]
Facsimile: 650.506.7144
[e-mail]
[e-mail]
Attorneys for Plaintiffs Oracle USA, Inc., et al.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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ORACLE USA, INC., et al.,
Plaintiffs,

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v.

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SAP AG, et al.,

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No. 07-CV-01658 PJH (EDL)
[PROPOSED] ORDER GRANTING
ORACLE’S MOTION FOR CERTIFICATION
FOR INTERLOCUTORY REVIEW
PURSUANT TO 28 U.S.C. § 1292(b)

Defendants.

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[PROPOSED] ORDER GRANTING ORACLE’S MOTION FOR 1292(b) CERTIFICATION OF ORDER, CASE NO. 07-CV-01658 PJH

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Before the Court is the Motion for Certification for Interlocutory Review Pursuant

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to 28 U.S.C. § 1292(b) (the “Motion”) filed by Plaintiff Oracle International Corporation. After

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considering the pleadings, memoranda, and supporting papers submitted by the Parties, and

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having heard the arguments of counsel, IT IS HEREBY ORDERED that Oracle’s Motion is

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GRANTED.

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The Court amends its Order Granting Defendants’ Motion for JMOL, and Motion

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for New Trial; Order Denying Plaintiffs’ Motion for New Trial; Order Partially Vacating

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Judgment (the “Post-Trial Order”) to certify the Post-Trial Order, as clarified by the Order of

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September 16, 2011 (“Clarification Order”), and the Clarification Order, for interlocutory

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review, pursuant to 28 U.S.C. 1292(b) and Fed. R. App. Proc. 5(a)(3). The Post-Trial Order, as

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clarified by the Clarification Order, and the Clarification Order itself, involve the following

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controlling questions of law as to which there is substantial ground for difference of opinion and

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an immediate appeal may materially advance the ultimate termination of the litigation:

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1. Whether copyright damages measured by the amount a willing buyer would

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have paid a willing seller for a hypothetical license to the rights infringed are sufficiently

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established by evidence of: (a) the infringer’s contemporaneous projections of the profits it

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would realize from use of the rights, (b) the copyright owner’s contemporaneous evidence

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valuing the business it would lose if it licensed those rights, and (c) reliable expert testimony as

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to the fair market value of a hypothetical license to the rights, based upon that evidence.

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2. Whether a jury’s assessment of the fair market value of the rights infringed
may be set aside as speculative when based upon such objective evidence.
3. Whether a jury’s verdict falling within the reasonable range of hypotheticallicense damages established by such objective evidence, may be set aside as excessive.

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IT IS SO ORDERED.

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DATED: _______________, 2011
Hon. Phyllis J. Hamilton
United States District Court Judge

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1

[PROPOSED] ORDER GRANTING ORACLE’S MOTION FOR 1292(b) CERTIFICATION OF ORDER, CASE NO. 07-CV-01658 PJH

07 CV 01658 PJH (EDL)