Oracle Corporation et al v. SAP AG et al

Filing 999

Updated Proposed Form of Verdict by Oracle International Corporation, Oracle USA Inc., Siebel Systems, Inc. (Alinder, Zachary) (Filed on 11/21/2010) Modified on 11/22/2010 (kc, COURT STAFF).

Oracle Corporation et al v. SAP AG et al

Doc. 999

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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) 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: [phone] [e-mail] [e-mail] Attorneys for Plaintiffs Oracle USA, Inc., et al. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION ORACLE USA, INC., et al., v. Plaintiffs, Case No. 07-CV-01658 PJH (EDL) ORACLE'S UPDATED JURY VERDICT FORM

SAP AG, et al., Defendants. 1
ORACLE'S UPDATED JURY VERDICT FORM
Dockets.Justia.com

Case No. 07-CV-01658 PJH (EDL)

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Pursuant to the Court's direction at the September 30, 2010 Pretrial Conference, the Court's Final Pretrial Order (Dkt. No. 914), the October 28, 2010 Status Conference Proceedings (Dkt. No. 952), and the Court's guidance at the November 1, 2010 and November 19, 2010 proceedings, Plaintiffs Oracle USA, Inc., Oracle International Corporation, and Siebel Systems, Inc. (collectively, "Oracle") submit the following updated special verdict form attached as Exhibit A. The Parties have resolved all disputes relating to the special verdict form except for a competing paragraph regarding infringers' profits. The remaining dispute relates to language in Jury Instruction No. 6 regarding whether the fair market value license presented by Oracle includes infringers' profits. This issue is explained in Oracle's separate statement in the preface to the jointly filed jury instructions. In short, however, Oracle has proposed a clarification to that instruction, and believes a corresponding clarification is required to the verdict form. Oracle's proposed new paragraph in the verdict form is taken directly from the first paragraph of the Ninth Circuit model jury instruction 17.24. The alternative language proposed by Defendants would preclude the jury from awarding infringers' profits even if the jury does not accept the fair market value license as presented by Oracle. Consistent with the discussion at the charging conference (Tr. 1956-1959), Oracle believes its proposed language is necessary because Defendants' calculation of the fair market value based on a running royalty, by definition, does not include all of Defendants' infringers' profits. Counsel for Defendants explained this distinction during the argument with Your Honor at the charging conference: MR. LANIER: ...THE ISSUE IS, DOES THE FAIR MARKET VALUE LICENSE, AS PRESENTED BY PLAINTIFFS, SUBSTITUTE FOR THE OTHER TWO MEASURES OF DAMAGES THAT ARE POSSIBLE, IT DOES AS PRESENTED BY THEM. THE JURY, WE THINK, SHOULD BE ALLOWED TO BE GIVEN THE CHOICE AND THERE IS EVIDENCE IN THE RECORD OF BOTH SIDE'S POSITIONS ON THAT ALTERNATIVE APPROACH. ... 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. 2
ORACLE'S UPDATED JURY VERDICT FORM

Case No. 07-CV-01658 PJH (EDL)

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November 19th Final Transcript at 1959:10-22. Accordingly, Oracle respectfully requests that jury be given the ability to award infringers' profits if it does not accept the fair market value license as presented by Oracle. DATED: November 21, 2010 Bingham McCutchen LLP By: /s/ Zachary J. Alinder Zachary J. Alinder Attorneys for Plaintiffs Oracle USA, Inc., Oracle International Corporation, and Siebel Systems, Inc.

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ORACLE'S UPDATED JURY VERDICT FORM

Case No. 07-CV-01658 PJH (EDL)

EXHIBIT A

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: $_______________________________________________________. 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. 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

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