Oracle Corporation et al v. SAP AG et al

Filing 1149

RESPONSE (re 1120 MOTION for Clarification ) Defendants' Opposition to Oracle's Motion for Clarification filed bySAP AG, SAP America Inc, Tomorrownow Inc. (Attachments: # 1 Proposed Order)(Froyd, Jane) (Filed on 5/1/2012)

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Robert A. Mittelstaedt (SBN 060359)
Jason McDonell (SBN 115084)
Elaine Wallace (SBN 197882)
JONES DAY
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
Tharan Gregory Lanier (SBN 138784)
Jane L. Froyd (SBN 220776)
JONES DAY
1755 Embarcadero Road
Palo Alto, CA 94303
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Scott W. Cowan (Admitted Pro Hac Vice)
Joshua L. Fuchs (Admitted Pro Hac Vice)
JONES DAY
717 Texas, Suite 3300
Houston, TX 77002
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Attorneys for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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ORACLE USA, INC., et al.,

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Plaintiffs,

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v.

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SAP AG, et al.,

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Defendants.

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Case No. 07-CV-1658 PJH (EDL)
DEFENDANTS’ OPPOSITION TO
ORACLE’S MOTION FOR
CLARIFICATION
Date: N/A
Time: N/A
Courtroom: 3, 3rd Floor
Judge: Hon. Phyllis J. Hamilton

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SVI-107806v1

DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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I.

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INTRODUCTION AND SUMMARY OF ARGUMENT
The Court’s September 1, 2011 Order granting judgment as a matter of law (“JMOL”) and

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a new trial requires no clarification—the Court ruled that Oracle is not entitled to actual damages

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for copyright infringement in the form of “hypothetical” license fees as a matter of law and

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ordered that any new trial be limited to “the amount of actual damages in the form of lost

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profits/infringer’s profits” only. ECF No. 1081 (9/1/11 Order) at 19; see also ECF No. 1088

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(9/16/11 Order) at 2 (confirming grant of JMOL on hypothetical license theory). The Court

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neither “reaffirmed that hypothetical license damages are available as a matter of law,” nor

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“appeared to invite the introduction of hypothetical license damages evidence in the new trial,” as

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Oracle claims. ECF No. 1120 at 1, 5. The unquestionable clarity of the Court’s orders shows that

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Oracle seeks not clarification, but rather reconsideration of the Court’s ruling excluding Oracle’s

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hypothetical license theory from the case. But Oracle’s failure to comply with the Local Rules’

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requirements for such requests alone justifies denial. The Court should deny Oracle’s Motion for

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Clarification and guide the parties to focus their remaining weeks of trial preparation on the only

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issues remaining—lost and infringer’s profits.1

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II.

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ARGUMENT
A.

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The Court’s Order Is Clear: Oracle May Not Seek License Damages as a
Matter of Law, and the New Trial Is Limited to Lost and Infringer’s Profits.

Oracle asks the Court to “clarify” “that, at the second trial, it may submit evidence of

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hypothetical license damages.” ECF No. 1120 at 1, 5-6. But “where an order or direction of the

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court is clear, it follows that clarification is unnecessary.” Mohammed v. City of Morgan Hill, No.

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5:10–cv–05630 EJD, 2011 WL 5085497, at *1 (N.D. Cal. Oct. 25, 2011) (denying clarification

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motion where “nothing in the . . . order requires clarification”). No “clarification” is needed here,

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as the Court’s post-trial orders plainly state that Oracle may not seek hypothetical license damages

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as a matter of law and that the new trial is limited to lost and infringer’s profits only.

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On September 1, 2011, this Court granted JMOL vacating the hypothetical license

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Such a ruling would render moot Oracle’s separately-filed motions for leave. See Defs.’
Opp. to Oracle’s Mots. for Leave (filed concurrently).
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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damages award and conditionally ordering a new trial. ECF No. 1081 (9/1/11 Order) at 10-15

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(directing that “judgment shall be entered in SAP’s favor on this issue, pursuant to Rule 50”), 17-

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19. The order left no room for doubt that Oracle may not pursue hypothetical license damages in

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this case. The Court’s JMOL ruling rested on two independent grounds. First, Oracle failed to

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prove that it lost any licensing opportunities; in fact, the undisputed evidence proved that Oracle

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did not lose, and never would have lost, any license fees. Id. at 10-11, 14 (finding Oracle failed to

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offer any “evidence of the type on which plaintiffs ordinarily rely to prove that they would have

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entered into such a license” and that evidence confirmed Oracle “would not ever license to

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anyone”). Second, even if “hypothetical” license fees were recoverable absent proof of lost

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licensing opportunities, Oracle failed to offer any objective (let alone sufficient) evidence to

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calculate a non-speculative license price. Id. at 10-15 (holding that “evidence Oracle presented

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was insufficient to establish an objective non-speculative license price” and that Oracle offered

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only subjective evidence in the form of “what Oracle would have demanded” for a license).

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The Court also granted Defendants’ new trial motion because the verdict was against the

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weight of the evidence. Id. at 17. Having determined that as a matter of law Oracle is not entitled

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to copyright damages in the form of hypothetical license fees, the Court awarded a new trial

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allowing Oracle to prove “actual damages in the form of lost profits/infringer’s profits.” Id. at

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17-18. The Court offered Oracle a remittitur to $272 million in lost profits and infringer’s profits

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and stated that should Oracle reject the remititur, “the court will order a new trial as to the amount

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of actual damages in the form of lost profits/infringer’s profits.” Id. at 19; see also id. at 20

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(limiting evidence at new trial if Oracle rejects remittitur). The Court concluded by holding:

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In accordance with the foregoing, the court GRANTS judgment as a matter of law
as to the award of hypothetical license damages. The court finds further that the
award of hypothetical license damages totaling $1.3 billion was contrary to the
weight of the evidence, and was grossly excessive. Given SAP’s concession of
liability, and request for a remittitur, the court GRANTS the motion for a new
trial as to actual damages, conditioned on Oracle’s rejection of a remittitur to
$272 million. Should Oracle reject the remittitur, the court will order a new trial
as to actual damages in the form of lost profits/infringer’s profits only. Id. at 20.
After the September 1 ruling, the Court repeatedly confirmed that the hypothetical license
theory was excluded as a matter of law and that the new trial is limited to lost and infringer’s
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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profits. On September 16, 2011, the Court reaffirmed that it “grant[ed] judgment as a matter of

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law” on the hypothetical license theory. ECF No. 1088 (9/16/11 Order) at 2. It also corrected

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Oracle’s misunderstanding of the JMOL order, as expressed in Oracle’s Motion for 1292(b)

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Certification for Interlocutory Review (ECF No. 1085). Referring to the second basis for the

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JMOL ruling (i.e., the type of evidence sufficient to price a hypothetical license, assuming the

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threshold requirement of establishing lost licensing opportunities is met), the Court explained that

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its September 1 Order did not require that a copyright owner point to “actual” or “benchmark”

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licenses to prove the value of a lost license, but rather held that Oracle was required to offer

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evidence to “establish an objective, non-speculative license price” and failed to do so. ECF No.

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1088 (9/16/10 Order) at 2 (noting Oracle “failed to provide objective evidence of what a willing

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buyer would have paid” and “failed to provide evidence sufficient to allow the jury to assess fair

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market value without undue speculation”). This clarification did not, however, alter the Court’s

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finding that Oracle failed to establish that it lost licensing opportunities—the first, threshold basis

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for the Court’s JMOL ruling. Far from “invit[ing] the introduction of hypothetical license

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damages evidence in the new trial,” as Oracle argues (ECF No. 1120 at 5), the Court’s September

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16 Order simply confirmed the ruling’s second, independent basis: As a matter of law, Oracle

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failed to present sufficient evidence of an objective, non-speculative license price. ECF No. 1081

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(9/1/11 Order) at 11 (“[T]he evidence Oracle presented was insufficient to establish an objective

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non-speculative license price.”); ECF No. 1088 (9/16/11 Order) at 2 (explaining Oracle failed “to

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establish an objective, non-speculative license price”).

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In January, when this Court denied Oracle’s motion for certification for interlocutory

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appeal, the Court again confirmed that the “new trial” will be limited to “lost profits/infringer’s

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profits.” ECF No. 1103 (1/6/12 Order) at 4. Specifically, in rejecting Oracle’s argument that

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certification for interlocutory would obviate the need for a “third trial,” the Court held:

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Should Oracle opt to reject the remittitur and to proceed with a new trial on lost
profits/infringer’s profits, any subsequent appeal will present the Ninth Circuit
with two verdicts to consider—one on hypothetical damages, and one on lost
profits/infringer’s profits. At that point, Oracle will be free to make any argument
that it cares to make regarding the sufficiency of the evidence, whereupon the
Ninth Circuit can issue a ruling. Id. (emphasis added).
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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As these orders make clear, contrary to Oracle’s contention, the Court never has

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“appeared to invite the introduction of hypothetical license damages evidence in the new trial.”

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ECF No. 1120 at 5. Since the Court “‘directly address[ed]’” this issue multiple times, there is

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simply no room for Oracle to argue that there is “‘confusion as to the actual claims’” that remain

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in the case. Id. (quoting California v. Infineon Techs. AG, No. C 06-4333 PJH, 2007 WL

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3034372, at *1-2 (N.D. Cal. Oct. 16, 2007)). Indeed, Oracle has conceded that, absent an appeal,

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the new trial will not encompass its hypothetical license claim and will be limited to lost and

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infringer’s profits. ECF No. 1089 (Oracle’s Mot. for 1292(b) Certification) at 3 (“If the JMOL is

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error but the grant of new trial is affirmed, there will be no apparent basis for limiting the new

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trial to lost profits and infringer’s profits.”); id. at 19 (“Absent certification, any appeal must wait

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until after the new trial is held and a new judgment is entered. Only on that post-second-trial

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appeal would the Ninth Circuit finally be able to review the sufficiency of Oracle’s hypothetical-

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license evidence admitted in the first trial . . . .”); id. (“the second verdict will be erroneously

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limited to lost/infringer’s profits”). Although Oracle may disagree with the Court’s many rulings

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on this issue, mere disagreement is no basis on which to seek clarification.

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B.

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Oracle Cannot Satisfy This Court’s Strict Standards for Granting Leave to
File a Motion for Reconsideration.

Faced with the clarity of the post-trial orders, Oracle effectively admits—in a footnote to

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its Motion for Clarification—that the Court’s rulings were clear and that its real goal is to seek

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reconsideration. ECF No. 1120 at 2 n.1. But the Local rules set strict standards for obtaining

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leave to file a motion for reconsideration, and Oracle cannot avoid these standards by disguising

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its motion as one for “clarification.” Civ. L.R. 7-9(b).

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1.

Oracle Failed to Move for Leave.

Where a court’s ruling has not resulted in a final judgment or order, a party may seek

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reconsideration of the ruling under Civil Local Rule 7-9, but must first obtain leave of the court to

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do so. Civ. L.R. 7-9(a)-(b). Oracle’s informal request for reconsideration does not even comply

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with this threshold requirement and can be denied on that basis alone. Id.; see also, e.g., United

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States v. Beardslee, No. CR-94-0186-DLJ, 2008 U.S. Dist. LEXIS 105667, at *3 (N.D. Cal. Dec.
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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22, 2008) (holding that “failure alone” to move for leave sufficed to deny reconsideration).

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2.

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This Court Did Not Manifestly Fail to Consider Material Facts or
Dispositive Legal Arguments.

Even had Oracle properly moved for leave to file a motion for reconsideration, Oracle’s

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request does not comply with Civil Local Rule 7-9 because Oracle fails to “specifically show”

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that one of three permissible bases for reconsideration applies. Civ. L.R. 7-9(b). The Rule allows

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reconsideration only if the moving party “specifically show[s]” (1) “a material difference in fact

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or law” of which it was unaware “in the exercise of reasonable diligence”; (2) “[t]he emergence

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of new material facts or a change of law occurring after the time of such order;” or (3) “[a]

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manifest failure by the Court to consider material facts or dispositive legal arguments” presented

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to the court before the order that the party seeks to revisit was issued. Id. In requesting leave, a

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party may not “repeat any oral or written argument” that it made “in support of or in opposition to

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the interlocutory order which the party now seeks to have reconsidered.” Civ. L.R. 7-9(c). “Any

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party who violates this restriction shall be subject to appropriate sanctions.” Id. Courts may

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summarily deny motions that are not filed in compliance with the Local Rules. Grove v. Wells

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Fargo Fin. Cal., Inc., 606 F.3d 577, 582 (9th Cir. 2010) (upholding district court’s denial of

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motion to tax costs that was not in compliance with court’s local rules); Elder-Evins v. Casey, No.

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C 09-05775 SBA, 2011 U.S. Dist. LEXIS 103080, at *5-6 (N.D. Cal. Sept. 13, 2011) (denying

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motion for leave to file motion for reconsideration for failing to show any of three conditions

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required for reconsideration under Civil Local Rule 7-9).

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The sole basis for Oracle’s request is that this Court’s September 1, 2011 Order amounted

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to “[a] manifest failure by the Court to consider material facts or dispositive legal arguments

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which were presented to the Court before such interlocutory order.” Civ. L.R. 7-9(b)(3). This is

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the key to Oracle’s entire motion, yet Oracle addresses this point in a scant footnote with little

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explanation. This too is a reason that leave should be denied. Civ. L.R. 7-9(b) (requiring movant

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to “specifically show” basis for allowing reconsideration).

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Oracle’s one-sentence justification for granting leave is that “[t]he facts and arguments
before the Court on the post-trial motions showed that Oracle’s trial evidence met the standard for
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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sufficiency that had been established before and at trial, and Oracle’s evidence cannot be

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precluded on retrial for failing to meet a different standard that had not yet been stated.” ECF No.

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1120 at 2 n.1. But Oracle’s reliance on “[t]he facts and arguments before the Court on the post-

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trial motions” does not support reconsideration, as this “repeat[s] . . . written argument” offered to

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oppose the JMOL ruling. Civ. L.R. 7-9(c). Oracle points to no fact or argument that the Court

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“manifest[ly] fail[ed] . . . to consider,” and its reassertion of previous arguments is prohibited and

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sanctionable. Civil L.R. 7-9(b)(3)-(c); see also, e.g., Salinas v. City of San Jose, No. 5:09-cv-

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04410 EJD, 2011 U.S. Dist. LEXIS 94354, at *9 (N.D. Cal. Aug. 23, 2011) (denying motion for

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leave where “[t]here [was] no indication the court ‘manifestly’ failed to consider anything that

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could prove dispositive”); Jackson v. Walker, No. CIV S-06-2023 WBS GGH P, 2010 U.S. Dist.

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LEXIS 45974, at *10 (E.D. Cal. May 11, 2010) (“Disagreement with a decision or the

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recapitulation of rejected arguments are not adequate bases for reconsideration”); Sconiers v.

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Fresno Cnty. Superior Court, No. 1:11-cv-00113-LJO-SMS, 2011 U.S. Dist. LEXIS 122195, at

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*2-3 (E.D. Cal. Oct. 21, 2011) (holding motion to reconsider “has no apparent purpose other than

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to challenge the authority of the Court” and “warning will serve as a predicate for sanctions”),

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sanctions imposed at 2011 U.S. Dist. LEXIS 152225, at *1-2 (E.D. Cal. Dec. 13, 2011).

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More importantly, the premise of this argument—that the JMOL order articulated “a

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different standard that had not yet been stated,” ECF No. 1120 at 2 n.1—is plainly refuted by this

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Court’s prior orders. The September 1 Order denying Defendants’ summary judgment motion

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“was not intended as a definitive ruling as to what Oracle was or was not required to show.” ECF

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No. 1081 (9/1/11 Order) at 13. Rather, “the most salient guidance provided by” the Court’s order

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“was the instruction that Oracle could claim lost license fees only if it ‘present[ed] evidence

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sufficient to allow the jury to assess fair market value without “undue speculation.’” Id. After

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having had “the benefit of [hearing] all the evidence,” the Court granted JMOL because “Oracle

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failed to present such objective, non-speculative evidence”—both for proving lost licensing

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opportunities as well as for proving a hypothetical license value. Id. at 14; see also ECF No.

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1088 (9/16/11 Order) at 2 (explaining that Oracle failed to “establish an objective, non-

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speculative license price”); ECF No. 1103 (1/6/12 Order) at 3 (“[T]he court clearly indicated in
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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the order granting judgment as a matter of law that Oracle had not presented sufficient objective

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evidence . . . for a reasonable jury to find that Oracle was entitled to a hypothetical license.”).

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Contrary to Oracle’s arguments, this “objective and non-speculative” requirement is not a new or

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“different standard.” ECF No. 1120 at 2 n.1, 5-6 (arguing that the September 16 order “clarif[ied]

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that hypothetical license damages are available if sufficient objective evidence supports them”).

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As this Court observed, “Oracle put on the evidence it chose to present,” and it cannot blame this

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Court for its own failure to present objective, non-speculative evidence to support its hypothetical

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license theory. ECF No. 1081 (9/1/11 Order) at 14; see also ECF No. 1103 (1/6/12 Order) at 4.

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3.

No New Facts Warrant Reconsideration.

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Although Oracle does not seek leave to file a motion for reconsideration based on “a

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material difference in fact,” or “emergence of new material facts,” it devotes eight pages to

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discussing additional evidence that it would offer in a second hypothetical-license trial. Civ. L.R.

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7-9(b)(1)-(2). None of the evidence qualifies as a “material difference in fact” that Oracle “did

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not know” at the time of this Court’s orders, nor is it “new” evidence that became available only

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“after the time of [this Court’s] order.” Civ. L.R. 7-9(b)(1)-(2).

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Oracle cites this evidence in an apparent attempt to convince the Court that the result

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would be different in a second trial with more evidence. But this evidence would not lead to a

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different outcome. Again, this Court’s JMOL ruling was based on two separate grounds. Even if

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Oracle could present additional evidence regarding the value of the hypothetical license (see ECF

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No. 1120 at 7-14), it could not overcome the first basis for the Court’s JMOL ruling—Oracle’s

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failure to prove lost licensing opportunities. No additional evidence could remedy Oracle’s

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fundamental failure at the first trial to show—or even argue—that it actually lost any licensing

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opportunities. ECF No. 1081 (9/1/11 Order) at 10. This is because the evidence Oracle did offer

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actually proves that it did not lose any licensing opportunities to Defendants or any third parties.

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As this Court recognized, Oracle “admitted that it had never given any entity a license” for the

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particular use at issue. Id. And Oracle voluntarily elicited testimony that affirmatively “showed

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that Oracle had not only not licensed to anyone . . . in the past, but would not ever license to

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anyone. . . . ” Id. at 14. Without evidence of lost licensing opportunities, Oracle is prohibited, as
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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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a matter of law, from recovering actual damages for copyright infringement in the form of

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“hypothetical” lost license fees. Additional speculation about a license price would make no

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difference in the outcome of a second hypothetical-license trial where, as here, the only evidence

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is that there never was or would be a license to price.

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4.

Oracle’s Reliance on “Fairness” Is Misplaced.

In the end, Oracle relies only on its notion of “fairness” to justify grant of its Motion.

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ECF No. 1120 at 6, 10. But under this Court’s rules, leave to file a motion for reconsideration

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requires a more specific showing. Civ. L.R. 7-9(b). In any event, denying Oracle’s motion is

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exceedingly “fair” and consistent with Civil Local Rule 1’s policy of “just, efficient, speedy and

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economical determination of” litigation. Civ. L.R. 1-2(b); see also Fed. R. Civ. P. 1. The Court

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gave Oracle a full and fair opportunity to present its best case for a hypothetical license, and

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“after the benefit of having heard all the evidence,” ECF No. 1081 (9/1/11 Order) at 14, the

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Court excluded the hypothetical license as a matter of law and granted a new trial to offer Oracle

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a chance to prove lost and infringer’s profits. Id. at 20. Oracle sought no “clarification” at that

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time. Instead, it elected a new trial with full knowledge that “[i]f Oracle rejects the remittitur

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and opts for a new trial, the parties will be limited to putting on evidence regarding lost profits.”

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Id. Now, less than two months before trial, Oracle asks this Court to resurrect Oracle’s plainly-

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excluded hypothetical license claim in the second trial.

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Lacking legal justification, the only plausible explanation for Oracle’s eleventh-hour

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motion is that it is attempting to distract Defendants from trial preparation or to delay the trial.

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Oracle even admits that its pretrial submissions include exhibits and witnesses relevant only to

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the license theory. Defendants are compelled to deal with that in their trial preparation, even

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though these claims do not belong in the case. Oracle’s attempts at distraction and delay already

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have caused prejudice to Defendants, who should be focusing on the second trial rather than

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opposing motions to “clarify” and reconsider past rulings, and needless burden on the Court.

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Cf. Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1062 (9th Cir. 2005) (“Disruption to the

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schedule of the court and other parties . . . is not harmless.”).

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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)

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III.

CONCLUSION

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This Court’s September 1, 2011 Order clearly excluded the hypothetical license remedy

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from this case as a matter of law and limited the second trial to lost and infringer’s profits. No

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clarification is necessary and the Court should deny Oracle’s Motion for Clarification.

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Furthermore, the Court should deny Oracle’s alternative, informal request for leave to file a

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motion for reconsideration because Oracle has failed to specifically show that leave is proper

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under Civil Local Rule 7-9(b). And, to permit the parties to focus their trial preparation and

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reduce the prejudice to Defendants caused by Oracle’s unnecessary motions, the Court should

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direct Oracle to immediately submit narrowed exhibit and witness lists and deposition and

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discovery designations that omit evidence or materials relating specifically to the excluded

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hypothetical license theory and other irrelevant matters addressed in Oracle’s moot motions for

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leave to file motions for reconsideration.

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Dated: May 1, 2012

JONES DAY

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By: /s/ Tharan Gregory Lanier
Tharan Gregory Lanier

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Counsel for Defendants
SAP AG, SAP AMERICA, INC., and
TOMORROWNOW, INC.

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DEFS.’ OPPOSITION TO ORACLE’S
MOTION FOR CLARIFICATION
Case No. 07-CV-1658 PJH (EDL)