SAP lawyer Greg Lanier was also put in the hot seat. Judge William Fletcher asked him if he thought the law precluded Oracle from collecting a hypothetical license just because it had chosen never to license its software in the past.
Lanier said that was his position.
"I don't believe the case law is saying that," the judge shot back.
But even if it isn't, Lanier protested, there's still the question of how a jury could calculate a price for the license.
That's part of the reason District Court Judge Phyllis Hamilton reduced Oracle's $1.3 billion verdict: She didn't believe Oracle presented enough evidence for the jury to properly calculate it.
Instead, as Lanier contended Tuesday, Oracle threw out several big numbers to the jury, leading it to come up with one of the highest ever copyright infringement awards. At one point in the trial, for instance, CEO Larry Ellison testified that the software and support materials were worth $4 billion.
Judge Fletcher said he was skeptical Oracle would be able to produce any further evidence at a retrial that would be more helpful to a jury. Sullivan said Oracle should be given the opportunity to try.
Sullivan asked the judges to take one of two courses: reinstate the $1.3 billion award, on the grounds that Oracle was entitled to a hypothetical license fee; or send the case back for a new trial, instructing the court that Oracle can argue for a hypothetical license.
The three-judge panel didn't indicate Tuesday when it will rule.
Either way, Oracle should receive at least $306 million from the case, the result of an agreement it struck with SAP after the District Court reduced its verdict. SAP also paid Oracle $120 million in attorneys' fees.
The case could break new ground in determining whether a company that has never licensed its software can be awarded copyright damages for lost licensing fees. Judge Fletcher asked Sullivan if she had any other cases that resemble this one. "We do not, your honor," she told him.
It's not the only case in which Oracle is reshaping copyright law. Last week an appeals court ruled that its Java programming interfaces could be protected by copyright, something many software developers assumed could not be the case.
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