SAP has already agreed to pay Oracle $120 million to cover the company's legal fees for this case. The jury has had this $900 million number drilled into its head, and Oracle's damage expert has said "at least $1.66 billion," which is essentially the Oracle damage ceiling.
That means that somewhere between $1 billion and $1.66 billion is the starting point from which SAP can chip away. The fair market value conversation is just one set of criteria the jury could be instructed to consider. If the jury considers other factors, like what actually happened, then the number starts to go down from there.
There's a chance the jury will see SAP as willful in its infringement, either by virtue of the massive amounts of software downloaded, even after Oracle filed its lawsuit, or because SAP executives seem a bit defiant, and the jury may award the $1.66 billion, or even more.
It seems more likely that the jury will factor in the actual loss. They are, after all, only human. It's knowledge that they have, and that cannot be ignored. The jury must also be fair to Oracle. While these damages may be unprecedented, so to were the downloads, Forensic expert Mandia said he'd never seen anything close to the 22 TB of data his firm examined.
SAP's damage expert is likely to put forth numbers in the low tens of millions, and SAP's attorneys have already shown their hand here: SAP executives have called the documents showing $900 million in growth "marketing plans," not business plans, and SAP has provided what it calls business plans with far more modest numbers. Oracle's attorneys have portrayed these documents as TomorrowNow valuation numbers, which SAP hasn't refuted.
In other words, there's really little chance for SAP to settle this without paying dearly. I wouldn't be surprised to see the jury settle on something closer to Paul Meyer's $409 million figure for lost profits.
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Fritz Nelson is the editorial director for InformationWeek and the Executive Producer of TechWebTV. Fritz writes about startups and established companies alike, but likes to exploit multiple forms of media into his writing.
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