In a separate filing Wednesday, Oracle said it "intends to vigorously oppose" SAP's efforts for a new trial, and that the verdict should stand as is.
Oracle sued SAP in 2007, alleging that its former subsidiary, TomorrowNow, illegally downloaded Oracle software and support materials in the course of providing lower-cost support to Oracle customers.
SAP accepted liability for TomorrowNow's actions but considered the award's size to be unfair. The motion filed Wednesday argues, as SAP has previously, that Oracle should not have been given damages for "hypothetical" software license fees it would have gained from SAP if it had purchased them legally.
"A hypothetical license is available only if a plaintiff proves that, but for the infringement, the parties would have agreed to such a license or that it would have licensed a third party for the same use and was prevented from doing so by the infringement," SAP's motion states.
Oracle and SAP are "fierce competitors" in enterprise applications," it adds. "The trial evidence conclusively demonstrated that Oracle never would have obtained license fees absent Defendants' infringement -- not under any condition, not in any amount, and not from any party."
The jury's award was "grossly excessive," "shocks the conscience," clashes with copyright law and led to a "miscarriage of justice," the motion states.
Using a "reality-based" approach, an expert SAP hired determined that Oracle's damages should be about $28 million. Oracle's own expert placed damages at $408.7 million."In no event" should Oracle be awarded anything higher than that figure, SAP argued.
The court should order a new trial if Oracle declines a reduced award, SAP said.
In the "unlikely event" the court grants any of SAP's motions, certain conditions should apply, Oracle said in its filing. For one, an SAP expert witness on damages should not be allowed to testify as to why Oracle customers left the company for SAP, it said.
The expert "is a CPA with some economics training and experience in business valuations and intellectual property licensing, but no experience or expertise in enterprise resource planning ("ERP") software or its buyers' decision-making," the filing states.
A hearing on the case is scheduled for July 13.
Oracle spokeswoman Deborah Hellinger declined comment.
