On August 29, 2014, in Oracle Corp. v. SAP AG, the US Court of Appeals for the Ninth Circuit rejected Oracle's appeal to reinstate a jury verdict of $1.3 billion against SAP for copyright infringement (No. 12–16944, (9th Cir. Aug. 29, 2014)). The Ninth Circuit agreed with the US District Court for the Northern District of California's grant of judgment as a matter of law in SAP's favor on the ground that Oracle failed to provide enough evidence to allow the jury to establish an objective, non-speculative hypothetical-license price concerning infringement of Oracle's copyrights. The court also affirmed the district court's:

However, the Ninth Circuit vacated the district court's selection of $272 million as the remittitur amount, finding it below the maximum amount sustainable by the proof and remanded with instructions to condition any new trial on Oracle's rejection of a $456.7 million remittitur.

In 2007, Oracle filed suit against SAP alleging that TomorrowNow, a software company SAP recently acquired, was engaging in widespread illegal downloading of Oracle's software. SAP stipulated to copyright infringement liability and the parties went to trial solely on damages. The jury awarded Oracle $1.3 billion as the fair market value of a hypothetical license from Oracle concerning SAP's infringement of Oracle's copyrights. However, the district court granted judgment as a matter of law in SAP's favor, finding that Oracle failed to provide enough evidence to allow the jury to establish an objective, non-speculative hypothetical-license price. The district rejected SAP's second ground for JMOL, which was that Oracle failed to show it would actually have granted a license.

The district court ordered a new trial, conditioned on Oracle's rejection of a $272 million remittitur measured by the copyright holder's lost profits plus infringer's profits rather than by hypothetical-license damages. Oracle rejected the remittitur. The district court ruled that, if a second trial were conducted, Oracle would not be able to argue for, or present evidence of, hypothetical license damages. Oracle and SAP stipulated to a $306 million judgment to expedite an appeal.

In affirming the district court's grant of JMOL, the Ninth Circuit expressly held that to recover hypothetical license damages, Oracle did not have to show that it actually would have granted a license to the defendants. However, the court noted that an award of hypothetical-license damages is appropriate provided the amount is not based on undue speculation. The touchstone for hypothetical-license damages is the range of the license's reasonable market value. In this case, the court found that the evidence presented at trial failed to provide the range of the reasonable market value for the hypothetical license in question.