The high drama continues among Hewlett-Packard, SAP and Oracle. On the eve of a court trial, SAP and Oracle are duking it out in the court of public opinion.
Oracle sued SAP in 2007, alleging copyright infringement by SAP subsidiary TomorrowNow. SAP shuttered TomorrowNow in 2008, and in August agreed not to fight the allegations.
SAP agreed to pay restitution to Oracle, but still plans to offer evidence disputing Oracle's claim to $1 billion in damages. SAP and Oracle were not immediately available for comment. The trial begins Monday, but Oracle CEO Larry Ellison is launching verbal missives against SAP ahead of time.
"A few weeks ago I accused HP's new CEO, Leo Apotheker, of overseeing an industrial-espionage scheme centering on the repeated theft of massive amounts of Oracle's software," said Oracle CEO Larry Ellison.
Ellison claims a major portion of this theft occurred while Apotheker was CEO of SAP. HP Chairman Ray Lane immediately came to Apotheker's defense by writing a letter stating, "Oracle has been litigating this case for years and has never offered any evidence that Mr. Apotheker was involved." Ellison said that's what Oracle is planning to do during the trial that starts Monday.
"Unless, Mr. Lane and the rest of the HP board of directors decide to keep their new CEO far, far away from HP headquarters until that trial is over ... we cannot subpoena him to testify at that trial," Ellison said.
"I don't think Ray Lane wants to risk Leo Apotheker testifying under oath as to why he allowed the theft of Oracle property to continue for eight months after he was made sole CEO of SAP," he added. "I hope I'm wrong, but my guess is that HP's new chairman, Mr. Lane, will keep HP's new CEO, Mr. Apotheker, far, far away from the courthouse until this trial is over."
SAP hasn't responded, at least directly. But the company did take a swing at Oracle in its earnings call on Wednesday. Jim Hagemann Snabe, co-CEO of SAP, said, "At SAP, we are not consolidators, we are innovators." He also said many of SAP's competitors "insist on just piecing together legacy hardware and software solutions."
As Charles King, principal analyst at Pund-IT, sees it, Ellison may just be trying to get a few final licks in before the trial starts. He noted that HP has asked the judge in the case to issue a gag order due to the possibility that widely disseminated news stories reflecting Oracle's point of view would pollute the jury pool.
"You may have seen that a woman who works as a publicist for the law firm representing Oracle in the trial is also the fiancé of the New York Times reporter who wrote a piece a few weeks ago insinuating Apotheker's role in TomorrowNow," King said. "Given that connection, a gag order or a similar limitation seems entirely possible."
Overall, King thinks Ellison's comments largely qualify as attempted corporate intimidation. From what he's heard, the judge trying the case disallowed a significant portion of Oracle's case, reducing the likelihood that any judgment would be particularly injurious.
"Unless Oracle can put its money and evidence directly implicating Apotheker where Ellison's mouth is," King said, "I doubt HP shareholders have much to worry about."