There is no delay and no gag order. U.S. District Judge Phyllis J. Hamilton was to oversee jury selection Monday in the copyright-infringement case Oracle filed against SAP. Opening arguments begin Tuesday in a trial where the side show is gaining more interest than the merits of the case.
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 billions of dollars in damages. SAP and Oracle were not immediately available for comment.
Hewlett-Packard got pulled into the drama when Oracle CEO Larry Ellison claimed a major portion of the theft occurred while new HP CEO Leo Apotheker was head of SAP. Apotheker officially starts his new job at HP on Monday, on the eve of opening arguments.
"Oracle is using this as an opportunity to take a shot at HP for firing (former HP CEO) Mark Hurd and to try to rebuild Hurd's reputation largely by tearing down the reputation of HP's board," said Rob Enderle, principal analyst at the Enderle Group. "It's drama."
Robin Hood Theft?
SAP acquired TomorrowNow for $10 million in 2005. TomorrowNow developed a lower-cost software maintenance and support service for customers using Oracle products, among others. Enderle called it a "Robin Hood theft."
"It's going to be interesting to see how this plays in front of a jury," Enderle said. "The reason that the materials were taken was so that the SAP subsidiary could service customers that Oracle acquired during the PeopleSoft merger that didn't want to work with Oracle."
Oracle acquired PeopleSoft for $10.3 billion in 2004. There were some customers that weren't happy with the prospect of working with Oracle. TomorrowNow acquired the intellectual property to service PeopleSoft customers who wanted a choice.
"This is a little different than your typical theft case," Enderle said. "If related evidence is allowed to be disclosed, it's hard to believe the jury is not going to feel a certain empathy for the customers."
According to The Wall Street Journal, Apotheker has been called as a witness to testify in Oracle's lawsuit against SAP. HP Chairman Ray Lane was vocal about the last-minute revelation, writing The New York Times a letter that said, "It didn't even deem him relevant enough to the case to include him on a list of witnesses for trial -- until, that is, Mr. Apotheker was named CEO of HP and oracle had other motives to try to tie him to the case."
Apotheker didn't take the reins as CEO of SAP until after the TomorrowNow subsidiary was shut down, according to the company. The trial could last as long as four weeks. But the outcome is anyone's guess.
"While there's little doubt that Oracle could win, they could walk away with a very small judgment," Enderle said. "The risk for a jury to see Oracle as the bad guy here is really high."
Posted: 2010-11-01 @ 11:23am PT
So the victim of industrial espionage / theft is the bad guy?