Oracle Corporation et al v. SAP AG et al

Filing 1123

Declaration of Kyle Zipes in Support of 1122 MOTION for Leave to File Motion for Reconsideration Regarding Saved Development Costs filed byOracle International Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 1122 ) (Howard, Geoffrey) (Filed on 4/17/2012)

EXHIBIT B

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

BY:

BOIES, SCHILLER & FLEXNER LLP
1999 HARRISON STREET, SUITE 900
OAKLAND, CALIFORNIA 94612
DAVID BOIES,
STEVEN C. HOLTZMAN, ATTORNEYS AT LAW

(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]

Page 2134

Page 2136

1

SLIGHTLY. SO THESE ARE NO LONGER TOMORROWNOW'S NUMBERS, THEY

1

HE TESTIFIED THREE YEARS AGO WHEN HE WAS ON THE OTHER SIDE.

2

ARE TOMORROWNOW'S NUMBERS REVISED FOR REALITY, AND THAT GOES TO 2

AND IN THIS OTHER CASE, HE TESTIFIED WHEN HE'S STILL DOING THE

3

308.

3

FAIR MARKET VALUE HYPOTHETICAL NEGOTIATION, THIS IS WHAT HE
TESTIFIED.

4

AND WHEN YOU STUDY THIS DOCUMENT, YOU CAN COMPARE

4

5

THE LAST DOCUMENT AND THIS DOCUMENT WITH THE NET INCOME LINE,

5

"YOU WANT TO BE AWARE OF WHAT HAPPENS IN THE

6

AND YOU WILL SEE THAT WHEN IT WAS REVISED TO REALITY FROM

6

FUTURE TO MAKE SURE YOU GET THE PROPER RESULT AT

7

TOMORROWNOW'S NUMBERS TO SAP'S NUMBERS, THESE NET INCOME

7

THE TIME OF THE HYPOTHETICAL."

8

NUMBERS GO DOWN. THAT'S BECAUSE THE COSTS WERE GOING UP.

8

COMMON SENSE. IT PROVIDES AN INSIGHT.

9

"SO WE ARE SORT OF USING SOME MONDAY MORNING

9

AGAIN, MEYER IGNORED THAT IN HIS RUSH TO FIND A
NUMBER LIKE 3,000, HE LOOKS AT THE ZIEMEN DOCUMENT WHICH IS

10

QUARTERBACKING AND HINDSIGHT TO HELP US, BUT

APPLES AND ORANGES, AND HE NOT ONLY MAKES A MISTAKE OF USING

11

WE'RE ABLE TO DO THAT IF WE DO IT IN A WAY

12

3,000 FOR SAP'S EXPECTATIONS, BUT HE USES THE SAME NUMBER FOR

12

THAT'S REASONABLE."

13

ORACLE'S EXPECTATIONS.

13

SO IN THAT CASE WHERE IT HELPED HIM, HE DID WHAT WAS

14

RIGHT, HE USED A REALITY CHECK. IN THIS CASE WHERE HE KNOWS IT
WOULDN'T HELP HIM, HE DIDN'T USE A REALITY CHECK.

10
11

14

THEIR LUMP SUM APPROACH IS ALSO TOO UNREASONABLE.

15

AND THIS IS WHERE WE GET INTO THE REALITY CHECK, THE BOOK OF

15

16

WISDOM.

16

17

THE COURT WILL INSTRUCT YOU THAT YOU CAN USE WHAT

IN THE BOEING CASE, I ASKED HIM THIS. REMEMBER, IN

17

THE BOEING CASE, INSTEAD OF COMING IN AND SAYING YOU CAN ONLY

18

ACTUALLY HAPPENED IF IT PROVIDES AN INSIGHT INTO WHAT THE

18

DO THIS ON A LUMP SUM BECAUSE ONE COMPANY -- THE GOVERNMENT HAD

19

PARTIES WOULD HAVE BEEN THINKING AT THE TIME. WHAT THEY WOULD

19

ALREADY PAID FOR THE PATENT AND SO IT WOULD HAVE A LOT OF

20

HAVE BEEN THINKING AT THE TIME.

20

UNCERTAINTY IF IT DIDN'T KNOW HOW MUCH IT WAS GOING TO GET AND

21

IT HAD ALREADY INVESTED ALL THIS MONEY, SO HE JUST WOULD HAVE

22

IN AND SAYS, YOU KNOW, WE COULD HAVE LOST 2,000 TO 3,000

22

TO HAVE A LUMP SUM. HE DIDN'T SAY THAT.

23

CUSTOMERS, THE QUESTION FOR HIM UNDER THE REALITY CHECK IS,

23

24

YOU'VE GOT A VERY SUCCESSFUL COMPANY. YOU HAVE GOT REALLY

24

25

SMART FORECASTERS DOWN THERE. ARE WE REALLY TO BELIEVE YOU

25

21

AND THINK ABOUT IT THIS WAY. WHEN MR. ELLISON COMES

IN BOEING HE SAID: "A RUNNING ROYALTY IS THE ONLY
THING THAT MAKES SENSE."
AND HIS RUNNING ROYALTY WAS 3.75 PERCENT OF SALES

Page 2135

Page 2137

1

WHEN YOU SAY YOU THINK YOU WOULD HAVE THOUGHT THAT YOU COULD 1

2

HAVE LOST 3,000 CUSTOMERS WHEN WE KNOW YOU ONLY LOST 358? HOW

2

3

COULD YOU BE SO WRONG? THAT'S THE REALITY CHECK.

3

4

THEY HAVE NEVER EXPLAINED WHAT THEY WERE THINKING OR

AND THE COURT FOUND HE WAS THREE TIMES TOO HIGH.
THIS IS WHAT HAPPENED.
"DO YOU REMEMBER IN THE BOEING CASE, THE COURT SAID

4

THAT BECAUSE YOUR BASELINE WAS LITTLE MORE THAN CONJECTURE, IT

5

IF THEY WOULD HAVE BEEN THINKING THEY WOULD LOSE 3,000

5

MATTERS LITTLE HOW YOU APPLIED THE OTHER GEORGIA-PACIFIC

6

CUSTOMERS. HOW COULD THEY BE SO WRONG? AND THE FACT THAT

6

FACTORS BECAUSE PLUS OR MINUS A GUESS IS, AFTER ALL, STILL A

7

3,000 IS SO DIFFERENT FROM 358 SUGGESTS THAT MAYBE YOU

7

GUESS?"

8

SHOULDN'T GIVE TOO MUCH CREDIT, TOO MUCH CREDENCE TO THEM WHEN

8

AND HE SAID -- "DO YOU REMEMBER THAT?"

9

THEY COME IN AND SAY WE THOUGHT WE WOULD HAVE -- COULD HAVE

9

"I RECALL READING THE JUDGE'S DECISION."

10

LOST 20 TO 30 PERCENT. YOU USE REALITY TO PROVIDE INSIGHT INTO

10

DO YOU REMEMBER READING THAT PART?

11

WHAT THEY REALLY WOULD HAVE BEEN THINKING AT THE TIME.

11

"I JUST SAID THAT."

12

SO, MR. MEYER SAYS:

12

BUT ON THE ROYALTY RATE THE COURT FOUND YOUR

13

THERE'S NO REASON TO HAVE TO DO A REALITY CHECK.

13

OPINION WAS TOO SPECULATIVE TO STAND.

14

I DON'T HAVE TO DO A REALITY CHECK GOING PASSED

14

WELL HE, HE DID SAY THAT HE DIDN'T LIKE THE

15

THE DATE OF THE HYPOTHETICAL.

15

ROYALTY RATE AND HE USED LANGUAGE THAT YOU HAVE.

16

AND HE'S SAYING THAT BECAUSE IF YOU DO A REALITY

16

AND HE SAID IT BORE LITTLE RELATIONSHIP TO WHAT

17

CHECK, THERE IS NO WAY YOU CAN SELL 3,000 CUSTOMERS WHEN ONLY

17

A WILLING BUYER AND A WILLING SELLER WOULD USE

18

358 ACTUALLY BOUGHT.

18

IN THE REAL WORLD. I DON'T HAVE IT IN FRONT OF

19

ME, BUT IF THAT'S WHAT YOU HAVE IN THE OPINION,

20

HE SAID A FEW THINGS LIKE THAT.

19
20

DURING THIS TRIAL HE TESTIFIED UP AT THE TOP, I
ASKED HIM:

21

"SO NO MONDAY MORNING QUARTERBACKING, NO

21

AND, WELL, HE REJECTED YOUR ROYALTY RATE AS

22

HINDSIGHT TO HELP US OUT; THAT'S YOUR POSITION?"

22

THREE TIMES TOO HIGH?

23

HE SAYS: "THAT'S MY POSITION ABOUT THE FAIR

23

I'VE ALREADY SAID THAT.

24

MARKET VALUE OF THE LICENSE."

24

AND HE FOUND YOUR APPROACH ON THIS ROYALTY RATE

25

WELL, I ASKED HIM THAT QUESTION BECAUSE I KNEW WHAT

25

WAS CAPRICIOUS, CORRECT?

30 (Pages 2134 to 2137)
Raynee H. Mercado, CSR, CRR, FCRR & Diane E. Skillman, CSR, RPR, FCRR

Page 2138

Page 2140

1

WE CAN LOOK AT HIS LANGUAGE, BUT HE WAS PRETTY

1

2

AGGRESSIVE IN HIS LANGUAGE, THAT'S CORRECT.

2

EXPECTATIONS AND THEY'RE TRYING TO TURN ZIEMEN'S ASSUMPTIONS

3

WHERE THERE HE WAS ARBITRARY, HE SPECULATED AND HE

3

INTO EXPECTATIONS SO FIRM THAT WE WOULD WRITE A BILLION DOLLAR

4

CAME AND PUT THE ROYALTY RATE THAT WAS THREE TIMES TOO HIGH.

4

CHECK ON IT? THE ONE THAT GOT ME GOING WHEN THEY WERE QUIZZING

5

WHAT HE DID IN THAT CASE MAKES WHAT HE DID HERE LOOK LIKE

5

MEYER AND ALSO JUST A COUPLE OF HOURS AGO, WAS THIS ONE, CHART

6

CHILD'S PLAY.

6

169.

7
8
9
10

HE IS WAY, WAY TOO HIGH. IF ONLY HE HAD DONE A
REALITY CHECK.

7
8

WHAT DOES MR. MEYER (SIC) SAY? MR. MEYER (SIC)
SAYS:

9

WHEN THEY ARE TRYING TO TALK ABOUT SAP'S

(SLIDE DISPLAYED ON SCREEN.)
THE ZIEMEN DOCUMENT, EVERYBODY KNOWS BY NOW IS
DECEMBER 23, 2004. AND THAT'S THE DOCUMENT WITH THE 3,000

10

ASSUMED CUSTOMERS. EVERYBODY ALSO KNOWS THAT THE BUSINESS CASE
IS JANUARY 7, AND THAT'S THE ONE THAT HAS 300 CUSTOMERS.

11

"I THINK IT'S IMPERATIVE IN THESE CASES THAT YOU

11

12

SEE WHETHER THE ANSWERS YOU'RE COMING UP WITH

12

SO THEY SHOW, JUST NOW, WHEN HE WAS GIVING YOU HIS

13

MAKE SENSE WHEN YOU KNOW WHAT YOU KNOW

13

TALK, HE SAID, AND MR. AGASSI SAID, THEY COULD DO EVEN BETTER

14

DOWNSTREAM. THAT'S VERY MUCH THE CASE HERE.

14

THAN ZIEMEN'S NUMBERS. BUT I WILL SHOW THIS TO YOU AGAIN.

15

AND I THINK THAT MY LICENSE MAKES SENSE WHEN YOU

15

THE QUESTION TO AGASSI IS:

16

CONSIDER WHAT THE ACTUAL USE WAS AND HOW

16

"DID YOU HAVE ANY REASON TO QUESTION THE

17

SUCCESSFUL OR UNSUCCESSFUL THESE PROGRAMS

17

PROJECTIONS EITHER IN THE ONE PRESENTED IN THE

18

ACTUALLY WERE."

18

JANUARY 7, 2000 (SIC) BUSINESS PLAN OR," AND

19

THAT'S THE BEAUTY OF A RUNNING ROYAL. BEAUTY OF A

19

THEN THEY STUCK IN 50 PERCENT CUSTOMER GOAL,

20

RUNNING ROYALTY IS YOU SET THE RATE, THE VALUE AT THE TIME, AND 20

THAT IS NOT IN THE TESTIMONY, "OR SUBSEQUENTLY?"

21

THEN YOU SEE HOW IT PLAYS OUT.

"I THOUGHT WE COULD, WE COULD DO BETTER."

22

21

NOW, ORACLE SAYS THAT THE WAY WE KNOW THIS VALUE ON

22

HE'S SAYING WE COULD DO BETTER THAN THE JANUARY 7,

23

THIS LUMP SUM IS SUPPOSED TO BE REALLY HIGH IS BECAUSE SAP TOOK 23

2005 PLAN FOR 300 CUSTOMERS, WHICH WAS BEFORE IT. HE'S NOT

24

THIS REALLY BIG RISK.

24

SAYING WE COULD DO BETTER THAN THE 3,000 THAT WAS IN ZIEMEN'S

25

DOCUMENT.

25

WHAT IS WRONG WITH THAT ARGUMENT? IT IS A CIRCULAR

Page 2139

Page 2141
OKAY. I AM COMING NOW TO THE RUNNING ROYALTY. IF

1

ARGUMENT. THEY ARE SAYING AND I HAVE GOT THEIR CHART HERE.

1

2

HERE IS MY FAVORITE CHART. THIS IS 72.

2

THE HYPOTHETICAL LICENSE APPROACH WERE GOING TO WORK AT ALL, IT

3

(SLIDE DISPLAYED ON SCREEN.)

3

WOULD ONLY WORK ON A RUNNING ROYALTY BASIS. WHY IS THAT?

4

THEY SAY SAP CHOSE TO TAKE THE RISK BECAUSE IT KNEW

4

BECAUSE THAT'S THE ONLY ONE THAT SHARES THE RISK. IT DOESN'T

5

THAT IT WOULD COST BILLIONS OF DOLLARS TO BUY A LICENSE. SO WE

5

GIVE ORACLE EVERYTHING THEY WANT. IT DOESN'T GIVE TOMORROWNOW

6

TOOK THIS ENORMOUS RISK BECAUSE IT WAS GOING TO COST US

6

EVERYTHING IT WANTS, BUT IT SHARES THE RISK.

7

BILLIONS OF DOLLARS TO BUY A LICENSE.

7

UNLIKE A LUMP SUM WHICH PUTS THE RISK ON ONE PARTY

8

IF THEY ARE TOO HIGH OR TOO LOW, THIS ONE YOU SET THE RATE AND

9

THEN YOU SEE HOW IT PLAYS OUT.

8
9

WHERE DOES THAT COME FROM? HOW ABOUT YOU PUT IN
THERE 40 MILLION, WHICH IS CLARKE'S NUMBER. THIS IS CIRCULAR.

NOW, THEY SAY THEY DON'T LIKE THE RUNNING ROYALTY

10

THEY SAY IT'S AN ENORMOUS RISK BECAUSE THEY SAY IT'S A HIGH

10

11

NUMBER. IT'S SELF-FULFILLING. THEY JUST STICK BILLIONS OF

11

BECAUSE THEY WOULD LOSE MONEY. THEY WOULDN'T MAKE AS MUCH

12

DOLLARS IN THERE AS IF THAT MAKES IT LOOK LIKE WE TOOK THIS

12

MONEY ON THE RUNNING ROYALTY AS IF THEY HAD KEPT THE CUSTOMER.

13

ENORMOUS RISK.

13

14

I AM NOT PROUD OF THIS AND SAP SHOULDN'T BE PROUD OF

14

BUT WHAT THE MISTAKE THEY MADE IS THEY ARE
ASSUMING -- THEY MADE TWO MISTAKES. ONE IS THEY MISUNDERSTAND

15

THIS. YOU SAW THAT EARLY DOCUMENT WHERE THEY SAID WE ARE GOING 15

WHAT MR. CLARKE TESTIFIED VERY CLEARLY. HE IS GIVING THEM

16

TO USE TOMORROWNOW AS A LIABILITY SHIELD. THEY'LL STAY

16

50 PERCENT OF ALL OF TOMORROWNOW'S REVENUES. NOT THE PROFIT

17

INCORPORATED IN TEXAS AND THEY WILL HAVE THE LIABILITY. BAD

17

BECAUSE THEY DIDN'T MAKE PROFIT. HE IS BEING GENEROUS IN

18

IDEA. WE ARE NOT STANDING BEHIND THAT. SAP IS HERE TO PAY THE

18

GIVING THEM 50 PERCENT OF ALL OF TOMORROWNOW'S REVENUES. HE IS

19

DAMAGES AWARDED AGAINST TOMORROWNOW, BUT THAT TELLS YOU

19

NOT JUST GIVING HIM -- GIVING THEM THE 50 PERCENT ON CUSTOMERS

20

SOMETHING ABOUT WHAT THEY THOUGHT THE RISK WAS AT THE TIME.

20

THAT WOULDN'T HAVE LEFT ORACLE ANYWAY.

21

AGAIN, BAD IDEA. THAT WAS NOT A GOOD WAY TO DO IT,

21

SO, WE HAVE ALL AGREED THAT OUT OF THE 358

22

BUT IT SORT OF PROVIDES A LITTLE OFFSET TO THEIR ARGUMENT THAT,

22

TOMORROWNOW CUSTOMERS, THERE ARE SOME CUSTOMERS IN THERE THAT

23

WELL, THERE WAS THIS ENORMOUS RISK BECAUSE THERE WAS GOING TO

23

WOULD HAVE LEFT ORACLE ANYWAY. SO THEY WERE GOING TO LOSE THE

24

BE THIS HUGE JUDGMENT.

24

PROFIT ON THEM ANYWAY.

25

IF YOU WILL FORGIVE ME, I WANT TO GO BACK ONE STEP.

25

MR. MEYER AND MR. CLARKE DISAGREE ON HOW MANY OF

31 (Pages 2138 to 2141)
Raynee H. Mercado, CSR, CRR, FCRR & Diane E. Skillman, CSR, RPR, FCRR

Page 2166
1

AND AS WE HAVE SEEN IN ALL THESE NUMBERS, THERE'S NO

Page 2168
1

STILL END UP WITH AN ASSUMPTION.

2

REASON TO THINK THAT ANY CUSTOMER SWITCHED FROM ORACLE TO SAP

2

3

FOR SOFTWARE BECAUSE OF THE LITTLE SAVINGS AT TOMORROWNOW. SO

3

IMPORTANT ISSUES; THE USE OF THE BOOK OF WISDOM, HIS USE OF

4

MEYER'S TOTAL WOULD BE 272 FOR THE SAME TIME PERIOD; CLARK'S

4

RUNNING ROYALTIES IN OTHER CASES, AND SO FORTH.

5

TOTAL IS 28 MILLION.

5

6

THEY HAVE TALKED ABOUT THE GOAL OF DISRUPTING

MY CROSS-EXAMINATION OF MEYER FOCUSED ON THE

THE CROSS-EXAMINATION OF CLARKE DIDN'T. THERE WAS A

6

LOT OF TALK ABOUT CEDARCRESTONE AND WHETHER THEY WERE IN

7

ORACLE. THEY HAVE PUT ON NO EVIDENCE THAT THERE WAS ANY HARM

7

BUSINESS IN 2005. EVEN IF CEDARCRESTONE WASN'T IN BUSINESS IN

8

TO THEM FROM DISRUPTION.

8

2005, ON THAT CHART IT SHOWED PLENTY OF OTHERS WHO WERE.

9

WHAT DID IT MATTER ABOUT CEDARCRESTONE? AS IT

9

THEY TALKED ABOUT, WELL, THEY HAVE GOT $4 BILLION IN
R&D THAT THEY SPEND EVERY YEAR. THEY HAVE NOT SAID ANYTHING

10

TURNED OUT, THE DOCUMENT SHOWED CEDARCRESTONE WAS IN BUSINESS

ABOUT HOW LOSING FOUR CUSTOMERS OR $19 MILLION HAD ANY EFFECT

11

FOR UP TO FIVE YEARS BEFORE 2008. YOU REMEMBER THE

10
11
12

WHATSOEVER ON THEIR $4 BILLION RESEARCH AND DEVELOPMENT BUDGET. 12

13

AGAIN, IT'S HIT AND RUN. THEY SAY IT, BUT THEY DON'T TRY AND

13

14

PROVE IT.

14

SUN DOCUMENTS AND WHERE HE GOT THE INFORMATION. AND THE

CROSS-EXAMINATION ON THAT.
YOU WILL ALSO REMEMBER WHEN HE WAS QUESTIONED ABOUT

15

(COUNSEL AT EASEL.)

15

QUESTION WAS, WELL, IT WOULD BE WRONG, WOULDN'T IT, IT WOULD BE

16

ANDREW NELSON. LET ME JUST TAKE ONE MINUTE ON

16

WRONG, WOULDN'T IT, IF YOU DIDN'T HAVE THAT IN YOUR BINDER?

17

ANDREW NELSON AND HIS $1 AND $18 IN CASE THAT COMES BACK ON

17

18

REBUTTAL.

18

GOING TO DO IS PULL OUT THE BINDER. HE DIDN'T. THAT WAS JUST

I AM SITTING THERE THINKING WELL NEXT THING HE'S

19

THEY HAVE A CHANCE TO TALK TO YOU AGAIN. I DON'T

19

INNUENDO. IT WAS AN INSINUATION THAT THERE'S SOMETHING WRONG

20

GET TO GET UP AND GIVE AN ANSWER. I AM PRETTY SURE I WOULD

20

WITH THE WITNESS' TESTIMONY. AND IT'S NITPICKING ON CUSTOMERS

21

HAVE AN ANSWER. AND I ASK YOU TO THINK WHAT THAT ANSWER WOULD 21

22

BE AND EVALUATE THAT.

23

22

ALL ANDREW NELSON DID, I WILL JUST HAVE TO HOLD IT,

23

24

ALL ANDREW NELSON DID WAS TO SAY THAT IF ORACLE CHARGES $2 FOR

25

SUPPORT, AND TOMORROWNOW CHARGES $1 FOR SUPPORT, AND IF YOU RUN 25

24

LIKE SARA LEE THAT BOTH SIDES HAVE EXCLUDED.
THE CONCLUSION ON THE DAMAGE SUMMARY ARE THESE
NUMBERS.
IF WE CAN SWITCH TO THE ELMO.
(DOCUMENT DISPLAYED ON ELMO.)

Page 2167
1
2

THAT OUT NINE YEARS, THAT TURNS OUT TO BE $18.
AND SO WHAT HE SAYS, YOU CAN EVALUATE WHETHER THIS

Page 2169
1
2

3

MATH MAKES ANY SENSE OR WHETHER SAP WOULD EVER RELY ON THIS. 3

4

WHAT HE SAYS, IF WE GET A CUSTOMER AND GET $1, THAT'S WORTH $18

4

5

TO ORACLE.

THIS IS GOING TO BE THE VERDICT FORM THAT THE COURT
GIVES YOU.
AND THE FIRST QUESTION WILL BE ACTUAL DAMAGES FOR
COPYRIGHT INFRINGEMENT. AND IT SAYS:

5

WHAT IS THE DOLLAR AMOUNT THAT ORACLE IS ENTITLED TO

6

NOT QUITE BECAUSE YOU REALLY HAVE TO DO $1 EVERY

6

FROM DEFENDANTS TO COMPENSATE ORACLE FOR ITS ACTUAL DAMAGES

7

YEAR, SO IT COMES OUT TWO TO ONE. FOR EVERY DOLLAR THAT WE

7

UNDER THE COPYRIGHT INFRINGEMENT CLAIM IN THE FORM OF" AND

8

GET, IT COST ORACLE IN SUPPORT $2. SO THAT CALCULATION THAT

8

HERE'S WHERE YOU HAVE YOUR CHOICE. EITHER A FAIR MARKET VALUE

9

THEY USE ONE OUT OF 18 JUST DOESN'T HAVE ANYTHING TO DO WITH

9

LICENSE FOR COPYRIGHT INFRINGEMENT OR LOST PROFITS?

10

THIS, AND IT'S CERTAINLY NO WAY TO CALCULATE DAMAGES.

10

11

OKAY. I AM ALMOST DONE. WHY VALUE CLARKE'S

11

12

APPROACH OVER MEYER'S? CLARKE STUDIED THE CUSTOMERS ONE BY 12

13

ONE. MEYER DIDN'T.

14
15
16
17
18
19

DON'T TRUST SOMEBODY WHO DOESN'T BELIEVE IN REALITY
CHECKS.
DON'T TRUST SOMEBODY WHO DOESN'T LET YOU LOOK UNDER
THE HOOD.
DON'T TRUST SOMEBODY WHO USES A FOUR-YEAR GAP AND
THEN DENIES IT.

13
14

AND SO ONE WAY TO FILL THIS OUT, AND I DON'T MEAN TO
BE PRESUMPTUOUS, I'M JUST SAYING WHERE OUR NUMBERS WOULD COME
OUT. IT'S UP TO YOU TO DECIDE.
ONE WAY TO FILL THIS OUT WOULD BE TO PUT IN CLARKE'S
NUMBER FOR LOSS PROFITS, 19.3 MILLION.

15

AND THEN IT SAYS: "IF YOU ASSIGNED ACTUAL DAMAGES

16

IN THE FORM OF FAIR MARKET VALUE, PLEASE PROCEED TO THE END."

17

SO THAT WOULD BE IT.

18

"IF YOU ASSIGNED ACTUAL DAMAGES IN THE FORM OF LOST

19

PROFITS," WHICH I HAVE, "PLEASE PROCEED TO THE NEXT." AND THE
NEXT IS: INFRINGERS' PROFITS. THESE ARE THE SOFTWARE SALES.

20

DON'T TRUST SOMEBODY WHEN HE'S PUT IN A REALLY TOUGH

20

21

POSITION IN HIS CLIENT TO COME UP WITH A BIGGER NUMBER THAN

21

22

THERE'S ANY BASIS IN REALITY FOR.

22

TO FROM DEFENDANTS AS INFRINGERS' PROFITS FOR THE COPYRIGHT

23

INFRINGEMENT?"

23

DON'T TRUST SOMEBODY LIKE IN THE BOEING CASE WHERE

24

THE COURT CRITICIZED HIM FOR STARTING WITH A GUESS, STARTING

24

25

WITH AN ASSUMPTION AND THEN ADDING PLUS OR MINUS TO IT. YOU

25

"WHAT IS THE DOLLAR AMOUNT THAT ORACLE IS ENTITLED

AND HERE CLARKE'S NUMBER IS 8.7 MILLION. AND THAT
INCLUDES, LET ME WRITE THIS WITH A SMALLER PEN, THAT INCLUDES

38 (Pages 2166 to 2169)
Raynee H. Mercado, CSR, CRR, FCRR & Diane E. Skillman, CSR, RPR, FCRR