Big Baboon ain't gibbon up: SAP, HP accused of aping software squirt's e-commerce patent

SAP and HP Inc have failed to get an e-commerce patent case brought against them by a small software firm thrown out.

The plaintiff, California-based Big Baboon Inc, has alleged that the companies directly and wilfully infringed on its patent. The outfit filed the suit in 2017, but was initially dismissed because it failed to meet the strict level of a pleadable case.

This means that plaintiffs' allegations must add up to "more than a sheer possibility that a defendant has acted unlawfully" – there has to be a reasonable expectation that discovery will reveal the defendant is liable for alleged misconduct.

Undeterred, Big Baboon filed an amended complaint in April, which SAP and HP once again sought to have dismissed – but the US judge yesterday denied this motion.

In a ruling handed down in the Northern District Court of California, judge Haywood Gilliam said Big Baboon's new infringement claim was sufficient to meet the plausibility standard.

SAP and HP's further motion to sanction the firm for bringing "a complaint that is legally and factually baseless without conducting a reasonable pre-suit investigation" was also denied.

The case centres on claims 15 and 20-34 of patent ('275) for an integrated business-to-business web commerce and business automation system that was filed with a priority date of 22 December 1997 by Big Baboon founder Charles Wong.

Wong, a former Stanford University student, and his firm alleged that SAP infringed claim 15 and 20-354 of the patent through modified versions of its ERP software R/3 Release 3.0E that include web functionality.

The plaintiff alleged that the version of R/3 that predated the '275 patent lacked the web functionality described in claim 15 – and that "at some point in 1997 or thereafter, the web-enabled R/3 system was made and sold by SAP which included web-enabled or disabled software modules".

The amended complaint includes a list of 19 releases that it describes as updates to the R/3 Release 3.0E that contained web functionality – these include that it became the SAP ERP Central Component (ECC) and that modules of the release were included in SAP's S/4 HANA.

The complaint also alleged that HP's use of the web-enabled R/3 system, ECC and S/4 HANA infringed at least claim 15 of the patent in question.

A case management conference has been set for 11 September, with statements due by 4 September. ®