Oracle Wraps IP Case Against SAP, Key Witness Nowhere to Be Found

Oracle on Nov. 19 concluded arguments in its 3-week-old copyright violations trial against rival SAP without being able to question whom it considers a star witness-former SAP CEO and current Hewlett-Packard CEO Leo Apotheker.
Apotheker was among SAP's three top decision-makers in 2007 when the Germany-based company's Texas-based affiliate, TomorrowNow, was caught illegally downloading numerous instances of Oracle customer-support software and thousands of pages of documentation.
TomorrowNow, which was acquired by SAP in 2005 and disbanded two years later, used the ill-gotten tools to try to lure customers from Oracle over to SAP.
However, Oracle has testified that only about 350 customers actually made the switch as the result of the stolen IP.
Oracle lead attorney David Boies has been trying to connect Apotheker to TomorrowNow in his arguments, although he could not prove definitively that Apotheker knew about the thefts.
Oracle videotaped a 6-hour deposition from Apotheker in 2008, long before SAP admitted corporate responsibility for TomorrowNow's misdeeds on Oct. 28. But Boies elected not to show the video to the judge and jury.
"The testimony and evidence prove that Mr. Apotheker oversaw the copyright infringement scheme," Boies told a group of reporters outside the court Nov. 19. "We did not show the 2-year-old video deposition because it was taken before SAP stipulated to liability."
Boies also has indicated that he wanted to leave the appearance of impropriety in the minds of the judge and jury due to the absence of Apotheker, who only started his new job at HP on Nov. 1 and apparently has been touring the company's far-flung campuses.
SAP corporate spokesman James Dever offered his take on Boies' informal press conference.
"Despite the sideshow discussions outside the courtroom, today's trial proceedings inside the courtroom focused where we believe they should-on the damages," Dever said via e-mail.
"We remain confident that we have demonstrated a clear case for fair compensation to Oracle for the limited operations of TomorrowNow. We trust now in the jury to bring this matter to an appropriate conclusion."
Closing statements on Monday
Both sides are scheduled to present their closing statements Monday in federal district court in Oakland, Calif., before Judge Phyllis Hamilton and an eight-person jury. To be decided is exactly how much SAP will be fined for stealing Oracle's IP.
SAP already has paid $120 million for court costs to Oracle and believes that another $40 million in restitution would be a fair amount. Oracle in court documents has officially demanded $2.15 billion, although CEO Larry Ellison testified that $4 billion is closer to the actual amount.
To confuse the issue even more, an Oracle damages expert, Paul Meyer, testified on Nov. 9 that SAP should pay Oracle $1.66 billion to settle the case.
Ellison wanted the judge and jury to hear from SAP executives-including Apotheker-whom he previously accused as being knowledgeable about the illegalities and complicit in the actions of TomorrowNow.
Oracle tried to have Apotheker subpoenaed to testify in the trial, but HP refused to accept the request. HP says its policy is not to reveal the whereabouts of its executives, but HP employees have reported seeing Apotheker in places such as Massachusetts and Texas during the last couple of weeks.
If Apotheker were to be seen within 100 miles of the federal courthouse, he would immediately be handed a subpoena to appear.
HP claims harassment
HP claims that Oracle is simply harassing its new CEO in an effort to discredit him. Oracle and HP often sell their individual wares into the same customer deployments, but they also compete vigorously in sales of servers, storage, middleware and numerous other markets.
"Oracle's current stance is clear proof that they have been trying to harass L??«o and interfere with his work at HP," HP spokeswoman Gina Tyler said in an e-mail.
"As HP has said repeatedly, Oracle had ample opportunity to question L??«o in the two years after he gave a full-day deposition. L??«o was never asked to give an additional deposition. As HP and SAP have noted, Oracle chose not to include Leo as a live trial witness until after he was named CEO of HP. L??«o had a limited role in the matter."
Editor's note: This story has been updated to include a corporate statement from SAP.