The retrial of Oracle's corporate-theft lawsuit against SAP is set to start on 27 August, with the same judge as in the first trial, Judge Phyllis Hamilton, presiding.
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 $1.3 billion jury award in November 2010against SAP, but considering it excessive, Hamilton set the finding aside and offered Oracle the choice of accepting a lower award or a new trial on damages. Oracle chose 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 24 May 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.
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 could help set clearer ground rules for third-party maintenance companies to operate.