Oracle Corporation et al v. SAP AG et al

Filing 955

Proposed Jury Instructions by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc. Joint Preliminary Instructions [Corrected]. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Alinder, Zachary) (Filed on 10/31/2010)

Oracle Corporation et al v. SAP AG et al

Doc. 955 Att. 4

Exhibit 4

Dockets.Justia.com

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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: [phone] [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) 1999 Harrison St., Suite 900 Oakland, CA 94612 Telephone: [phone] Facsimile: [phone] [e-mail] DORIAN DALEY (SBN 129049) JENNIFER GLOSS (SBN 154227) 500 Oracle Parkway, M/S 5op7 Redwood City, CA 94070 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc. et al.

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: (415) 626­3939 Facsimile: (415) 875­5700 [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: (650) 739­3939 Facsimile: (650) 739­3900 [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: (832) 239­3939 Facsimile: (832) 239­3600 [e-mail] [e-mail] Attorneys for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. Plaintiffs, No. 07-CV-01658 PJH (EDL) TRIAL STIPULATION AND [PROPOSED] ORDER NO. 1 REGARDING LIABILITY, DISMISSAL OF CLAIMS, PRESERVATION OF DEFENSES, AND OBJECTIONS TO EVIDENCE AT TRIAL
07-CV-01658 PJH (EDL)

SAP AG, et al., Defendants.

TRIAL STIPULATION AND [PROPOSED] ORDER NO. 1

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Pursuant to Local Rule 7-12, Plaintiffs Oracle USA, Inc., Oracle International Corporation and Siebel Systems, Inc. ("Plaintiffs" or "Oracle") and Defendants TomorrowNow, Inc. ("TN"), SAP AG and SAP America, Inc. ("SAP"; and, together with TN, "Defendants"; and, all together with Oracle, the "Parties"), jointly submit this Trial Stipulation and [Proposed] Order regarding liability, dismissal of certain claims, the preservation of certain defenses, objections to evidence at trial, and the length of the Parties' evidentiary presentations and arguments. The Parties agree that the terms of this stipulation shall not be binding or effective unless and until the Court accepts the stipulated terms in their entirety. The Parties reserve the right to withdraw agreement to any or all terms if the Court chooses not to accept any term. NOW, THEREFORE, THE PARTIES HEREBY STIPULATE AND AGREE, through their respective counsel of record, as follows: TRIAL STIPULATION AND PROPOSED ORDER 1. TN stipulates to all liability on all claims (preserving no defenses,

including any raised on summary judgment, but retaining all defenses to damages as described in paragraph 5 below). TN therefore stipulates to all liability on Oracle's claims for copyright infringement, violations of the Federal Computer Fraud and Abuse Act and California's Computer Data Access and Fraud Act, breach of contract, intentional interference, negligent interference, unfair competition, trespass to chattels, unjust enrichment/restitution and an accounting. SAP will not contend that Oracle has failed to prove indirect liability as to SAP due to a failure of proof against TN. 2. SAP stipulates to vicarious liability on the copyright claims against TN in

their entirety (preserving no defenses, including any raised on summary judgment, but retaining all defenses as to damages as described in paragraph 5 below) and agrees to guarantee payment of any judgment awarded against TN or SAP. 3. Oracle dismisses with prejudice all claims against SAP except for indirect

copyright infringement and except as to any right to appeal any rulings made by the trial court (e.g., saved development costs as a basis for unjust enrichment), which Oracle preserves for all
07-CV-01658 PJH (EDL)

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purposes. Oracle therefore retains claims against SAP for contributory copyright infringement, to which SAP retains all pleaded defenses, including as described in paragraph 5 below, at the trial scheduled for November 1, 2010. 4. The Parties envision that the jury will be instructed, and the jury verdict

form will reflect, that the Parties have stipulated to liability for certain claims against TN and SAP as set forth in paragraphs 1 and 2 above (which the parties may refer to at any time during trial). Subject only to the trial time limits set forth in paragraph 8 below, the Parties may present evidence at trial related to the stipulated claims as background or context for the stipulated claims, and/or as relevant to damages or other claims and defenses not stipulated to or dismissed by the Parties. The Parties will not object to evidence related to the stipulated claims pursuant to Federal Rules of Evidence 401-403 (including that the evidence is irrelevant, cumulative, unduly time consuming or prejudicial) on grounds that the evidence relates to the stipulated claims. Oracle may not argue to the Court, jury or public that SAP is in fact liable on claims that Oracle agrees to dismiss under paragraph 3, or not pursue under paragraph 7, and SAP may not argue to the Court, jury or public that either (i) TN in fact is not liable on claims stipulated under paragraph 1, or (ii) SAP in fact is not liable on the basis of vicarious liability as stipulated under paragraph 2. 5. SAP and TN retain all defenses to the alleged causation, fact or amount of

or entitlement to disgorgement, actual or punitive damages or any other legal or equitable remedy. For example, on some claim as to which TN had elected not to contest liability, it may still argue that a particular remedy is not available. 6. The Parties preserve their rights to appeal any judgment against them

except as to issues or claims to which they have stipulated. 7. Punitive damages remain in the case as to TN. Oracle agrees not to seek

punitive damages against SAP in this case, provided, however, that Oracle may enforce SAP's guarantee to pay any award of punitive damages against TN. 8. The length of trial is shortened to 36 hours per side for presentation of 2
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testimony and argument to the jury.

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9.

Defendants agree to entry of an injunction enjoining TN from:

(1) infringing Oracle's copyrights in Oracle's PeopleSoft-branded enterprise application software, J.D. Edwards-branded enterprise application software, Siebel-branded enterprise application software, and Oracle's Relational Database Management System software, and related support products; (2) accessing any password-protected Oracle website in any way not compliant with the Terms of Use for that website or with the customer license associated with the log-in credential being used; (3) using any automated downloading program (including Titan, spiders, bots, crawlers and scrapers) on any Oracle website; and (4) interfering with Oracle's customers by offering support for their Oracle products using software or downloads obtained from a different customer generally directed at the stipulated conduct. 10. The Parties reach this stipulation for purposes of this action only, and this

stipulation has no force or effect in any other proceeding or jurisdiction. IT IS SO STIPULATED. DATED: September 9, 2010 BINGHAM McCUTCHEN LLP By: /s/ Geoffrey M. Howard

Geoffrey M. Howard Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation and Siebel Systems, Inc. In accordance with General Order No. 45, Rule X, the above signatory attests that concurrence in the filing of this document has been obtained from the signatory below. DATED: September 9, 2010 JONES DAY By: /s/ Jason McDonell Jason McDonell Attorneys for Defendants SAP AG, SAP America, Inc., and TomorrowNow, Inc. PURSUANT TO STIPULATION, IT IS SO ORDERED.
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September 13 Dated: _____________________, 2010

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