UPDATED: Oracle CEO tells federal judge in a packed courtroom that he was worried about his company "bleeding customers" because of the illegal actions of an SAP acquisition.
OAKLAND, Calif. -- Apparently, German enterprise application maker SAP AG is a much
more formidable competitor than Oracle CEO and co-founder Larry Ellison
has ever had to admit in the past.
Ellison, testifying for the first time in the punishment phase of
a copyright infringement trial that started Nov. 1, told Federal Court
Judge Shirley Hamilton and a packed courtroom Nov. 8 that
he was "deeply worried" about his company "bleeding customers" because
of SAP's 2005 acquisition of an American company that specialized in luring
customers away from competitors.
On numerous occasions over the last few years, Ellison has downplayed
SAP's technology, denigrating it as "software that runs on 20-year-old
code that can't handle workloads on modern servers."
The court case, originated by an Oracle lawsuit first brought in 2007,
is to determine how much SAP will be fined for the actions of a former
wholly owned affiliate, TomorrowNow.
SAP has admitted that TomorrowNow illegally downloaded a substantial
amount of Oracle's enterprise support software and product
documentation and then used it against Oracle for SAP's profit.
Oracle is officially seeking $2.15 billion in business restitution from
SAP, which begs to differ with that figure. The Germany-based software
maker believes that the Oracle demand is vastly inflated and that a
settlement in the neighborhood of $40 million is a fairer amount.
Ellison told Judge Hamilton and an eight-person jury that SAP --
through the deeds of its subsidiary -- actually cost Oracle as much as
SAP has insisted that TomorrowNow acted on its own volition, that the
corporation did not know about or condone the IP piracy, and that SAP
stopped the pirating as soon as it found out about it.
Ellison maintains focus
Ellison kept his testimony focused on the loss of business by his
company and avoided personal commentary on any actions involving SAP
executives, whom Ellison has previously accused as being knowledgeable
about the illegalities and complicit in the actions of TomorrowNow.
One of those executives is new Hewlett-Packard CEO Leo Apotheker, a former CEO of SAP who was one of the company's three top executives
when the TomorrowNow software piracy occurred.
Oracle tried to have Apotheker subpoenaed to testify
in the trial but HP nixed the request. HP says its policy is not to
reveal the whereabouts of its executives; it is believed that Apotheker
is out of the country.
Ellison also told the judge and jury that SAP is indeed a power in the
industry -- Oracle's largest in the enterprise application sector --
and that "if they had access to all of our intellectual property, all
of our engineering, they could make a very credible offer to all of our
customers," he said.
Ellison, under persistent questioning by SAP attorney Tharon Lanier of
the Jones Day law firm, wouldn't give a specific number of customers
lost to SAP for several minutes before finally admitting that "about
350" customers were lost due to TomorrowNow's actions.
Lanier had to ask Ellison the question several times in order to obtain
the answer. Ellison finally declared: "I do not tend to write those
sorts of things down."
Ellison also told Lanier and the court that he could produce no Oracle
e-mails or other documents proving that Ellison or other Oracle
executives thought they would lose a much higher number of customers
from the SAP actions.
Oracle Co-President Safra Catz was to testify following Ellison on Nov. 8.
SAP Director of Global Communications Saswato Das told eWEEK via e-mail
that "Mr. Ellison's testimony was anticlimatic given his statements
these past weeks.
"Important to the defense, he acknowledged losing only 350 customers to
TN, far below his own estimates of 20 to 30 percent of PeopleSoft that
could be lost. This case should be about the actual damages
caused by the limited operations of TomorrowNow," Das wrote.
Editor's note: This was updated to include more detail about the testimony and a reaction from the SAP corporate spokesman.