Oracle Corporation et al v. SAP AG et al

Filing 998

Revised Proposed Special Form of Verdict by SAP AG, SAP America Inc, Tomorrownow Inc. (Froyd, Jane) (Filed on 11/21/2010) Modified on 11/22/2010 (kc, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 998

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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. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., Plaintiffs, v. SAP AG, et al., Defendants. Case No. 07-CV-1658 PJH (EDL) DEFENDANTS' REVISED SPECIAL VERDICT FORM

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DEFENDANTS' REVISED SPECIAL VERDICT FORM Case No. 07-CV-1658 PJH (EDL)

Dockets.Justia.com

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Pursuant to the Court's guidance at the November 19, 2010 proceedings, Defendants submit the attached Revised Special Verdict Form. Despite the Court's expressed preference for Defendants' special verdict form, Plaintiffs declined to submit this form jointly. See 11/19/10 Trial Tr. at 2004:6-19 ("If I am required to elect between the two of them, I would elect the Defendants."). Instead, at 1:32 p.m. on Sunday, November 21, 2010, Plaintiffs proposed, for the first time, a change to the special verdict form "intended to reflect the possibility that a fair market value license award may not include infringers' profits." See 11/21/10 1:32 p.m. E-Mail from G. Howard to J. Lee ("RE: Oracle's Revisions to Defendants' Copyright Damages Instructions"). Then, at 2:45 p.m., Plaintiffs sent a revised version of their proposal that deleted the following sentence of Defendants' special verdict form: If you assigned actual damages in the form of a fair market value license for the rights infringed, please proceed to the end of the form (i.e. Do not answer question 2). If you assigned actual damages in the form of lost profits, please proceed to the following question. 11/21/10 2:45 p.m. E-mail from G. Howard to J. Lee ("RE: Oracle's Revisions to Defendants' Copyright Damages Instructions"). Plaintiffs proposed replacing the deleted sentence with the following language: In addition to actual damages, Oracle is entitled to any profits of Defendants attributable to the infringement. You may not include in an award of profits any amount that you took into account in determining actual damages.

Plaintiffs' proposals contradict not only Plaintiffs' consistent position in this case that an award of actual damages in the form of a fair market value license takes into account infringers' profits, but also the Court's unambiguous guidance at the charge conference that an award of actual damages in the form of a fair market value license encompasses infringer's profits: THE COURT: I AGREE WITH DEFENDANTS. I THINK THAT THE HYPOTHETICAL LICENSE DOES INCLUDE THE INFRINGER'S PROFITS REGARDLESS OF WHAT NUMBER THE JURY COMES BACK WITH. SO THAT SETTLES THAT PART OF IT.

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DEFENDANTS' REVISED SPECIAL VERDICT FORM Case No. 07-CV-1658 PJH (EDL)

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11/19/10 Trial Tr. at 1959:19-22. Furthermore, Plaintiffs' proposals ignore the Court's stated preference that the special verdict form provide a roadmap for the jury regarding the types of damages it may and may not award: THE COURT: . . . I DEFINITELY THINK THAT WE SHOULD SPECIFY THE CATEGORIES. IT'S GOING TO BE -- WE NEED TO GIVE THE JURY AS MUCH GUIDANCE AS WE CAN, THAT THEY KNOW THERE ARE THESE CATEGORIES, SO WE HAVE A PLAIN ENGLISH INSTRUCTION SAYING THESE ARE THE KINDS OF DAMAGES THAT MAY BE SOUGHT AND A VERDICT FORM THAT IS CONSISTENT WITH THAT LANGUAGE IT WILL BE MUCH EASIER FOR THEM TO, I THINK, FIGURE IT OUT. 11/19/10 Trial Tr. at 2004:20-2005:1. Defendants respectfully request that the Court adopt Defendants' special verdict form attached hereto. Dated: November 21, 2010 JONES DAY

By: /s/ Tharan Gregory Lanier Tharan Gregory Lanier Counsel for Defendants SAP AG, SAP AMERICA, INC., and TOMORROWNOW, INC.

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DEFENDANTS' REVISED SPECIAL VERDICT FORM Case No. 07-CV-1658 PJH (EDL)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ORACLE USA, INC., ORACLE INTERNATIONAL CORP., and SIEBEL SYSTEMS, INC. Plaintiffs, v. TOMORROWNOW, INC., SAP AMERICA, INC., AND SAP AG Defendants. We, the jury in the above-entitled action, find the following special verdict on the questions submitted to us: Actual Damages for Copyright Infringement 1. What is the dollar amount that Oracle is entitled to from Defendants to compensate Oracle for its actual damages under its copyright infringement claim, in the form of EITHER a fair market value license for the copyright infringement OR lost profits? FAIR MARKET VALUE LICENSE: $_______________________________________, OR, LOST PROFITS: $_______________________________________________________. If you assigned actual damages in the form of a fair market value license for the rights infringed, please proceed to the end of the form (i.e. Do not answer question 2). If you assigned actual damages in the form of lost profits, please proceed to the following question. Infringers' Profits for Copyright Infringement 2. What is the dollar amount that Oracle is entitled to from Defendants as infringers' profits under Oracle's copyright infringement claim? $____________________________________________________________. Have the presiding juror sign and date this form. Signed: ________________________________________ Dated: _______________________ Presiding Juror Case No. 07-CV-1658 PJH (EDL) SPECIAL VERDICT FORM