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Oracle loses bid to restore $1.3 billion SAP verdict, could get new trial

By Jonathan Stempel and Dan Levine

(Reuters) - Oracle Corp failed to revive a $1.3 billion jury verdict in its long-running copyright dispute with German software company SAP SE as a U.S. appeals court said Oracle must choose to accept a lower amount or face a new trial.

In a ruling on Friday, the 9th U.S. Circuit Court of Appeals in San Francisco said jurors used "an undue amount of speculation" in awarding $1.3 billion in damages in 2010.

But the court found U.S. District Judge Phyllis Hamilton in Oakland, California, had erred in concluding that Oracle deserved only $272 million of damages, a sum Oracle rejected.

Writing for a three-judge 9th Circuit panel, Judge William Fletcher directed Hamilton to offer Oracle a choice of $356.7 million of damages or a second trial.

In a statement, Oracle general counsel Dorian Daley said the company is "thrilled about this landmark recovery." Asked whether Oracle will accept the $356.7 million or proceed to another trial, a company spokeswoman declined to comment.

SAP spokesman Andy Kendzie said the ruling is favorable and "shows the strength of our position."

The case involved SAP's TomorrowNow unit, which the German company had bought to provide software support to Oracle customers at lower rates than what Oracle charged, hoping to persuade them to become SAP customers.

Oracle sued SAP in 2007 after noticing thousands of suspicious downloads of its software.

SAP later conceded that its employees were illegally downloading Oracle files, but it couldn't agree with Oracle on damages. The 2010 trial between the two enterprise software competitors was widely watched at the time, as top Oracle executives Larry Ellison and Safra Catz testified.

Subsequently, SAP agreed to pay Oracle $306 million, but that agreement allowed Oracle to seek to restore the jury verdict, or win a retrial based on its own damages theories.

During the 2010 trial, Oracle had said internal SAP documents showed the German software company expected over $1 billion in revenue from TomorrowNow. However, the 9th Circuit rejected that reasoning given that SAP had paid much less to buy TomorrowNow.

"If SAP truly anticipated that TomorrowNow would produce a $1.3 billion benefit to SAP, as Oracle contends, a $10 million acquisition price is strikingly low," Fletcher wrote.

In finding the $272 million damages award "below the maximum amount sustainable by the proof," Fletcher said Hamilton erred in finding that Oracle had lost just $36 million of profit, when the proper figure should have been $120.7 million.

The case is Oracle Corp et al v. SAP AG et al, 9th U.S. Circuit Court of Appeals, No. 12-16944.

(Reporting by Jonathan Stempel in New York and Dan Levine in San Francisco; Additional reporting by Maria Sheahan; Editing by Leslie Adler and Jonathan Oatis)

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