Jury selection will begin on that date. The same judge as in the first trial, U.S. District Court Judge Phyllis Hamilton, will preside over the second trial, according to the filing in U.S. District Court for the Northern District of California.
The retrial will centre on the scope of damages SAP owes Oracle, as SAP has already admitted liability for illegal downloads of Oracle software and support materials that were conducted by a former subsidiary, TomorrowNow, which offered lower-cost support to Oracle customers.
Oracle won a US$1.3 billion jury award in November 2010 against SAP, but considering it excessive, Hamilton set it aside and offered Oracle the choice of accepting a lower award or a new trial on damages. Ultimately, Oracle went for the latter option.
SAP previously asked the judge to prevent Oracle’s lawyers from using words like “theft” and “stealing” during the retrial to describe TomorrowNow’s conduct, and at a May 24 hearing she granted SAP’s request.
Those words are “inflammatory” and might be prejudicial to SAP, she said. Moreover, the case is a civil one, not a criminal one, and such language could “confuse the jury.”
“You can say ‘copied,’ because that’s what they did, they copied without authority, and you can use the word ‘take,’ but that’s as far as you can go,” she told Oracle’s lawyers at the hearing.
Originally, the retrial had been set for June 18, but last month that date was scrapped, with the court saying the case would follow an unrelated criminal trial that was set for Aug. 27. But now the court’s calendar has been cleared, allowing it to firm up the retrial’s start, according to Friday’s notice.
The companies’ dispute has broader implications for the enterprise software market, in that it focuses on the issue of software maintenance performed by parties besides the original vendor.
Annual maintenance payments are the lifeblood of traditional enterprise software companies, providing steady income even when new license sales are slow.
Oracle is also suing Rimini Street, a third-party maintenance company led by TomorrowNow co-founder Seth Ravin, arguing that Rimini has duplicated TomorrowNow’s “corrupt business model.”
Rimini Street has maintained no wrongdoing, saying it operates within the scope of its customers’ software license agreements. Some observers believe the outcome of that case, which has yet to go to trial, could help set clearer ground rules for third-party maintenance companies to operate.