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Oracle’s Lawyer Drags Apology Out of SAP

SAP also admitted that no one had been disciplined for stealing Oracle’s IP

Closing arguments in Oracle's copyright infringement suit against SAP are set for next week. Oracle rested its case Monday without showing the jury its videotaped deposition of HP's new CEO Léo Apotheker, who's still MIA and likely to remain so until the jury figures out how much money SAP should pay Oracle for pinching its software.

Oracle expects to get mileage out of the fact that Apotheker has been playing hide and seek and staying outside the reach of its process servers. It could show the video during rebuttal.

According the Dow Jones blog All Things Digital, Oracle's star litigator David Boies told the press last Friday outside court that "Maybe we'll just let the jury know that [HP's] hidden him. I think it may be better for the jury to know that here's this guy who was at the center of all this [and we can't find him]."

Boies claimed that "When he testified at his deposition more than two years ago, it was before SAP and its wholly owned subsidiary TomorrowNow admitted infringing Oracle's intellectual property through massive downloading and copying of PeopleSoft, JD Edwards and Siebel software. We think it is very important that Mr. Apotheker testify now, as a live witness in court, to explain his and SAP's conduct."

We always said Oracle could go far with inference and innuendo.

HP and SAP continue to maintain that Oracle only really got interested in Apotheker's testimony after he was named CEO of HP and that he had a "limited role" in the TomorrowNow affair.

Meanwhile, SAP Monday started mounting its defense and called its co-CEO Bill McDermott to the stand. He said that TomorrowNow was unsupervised and was "doing things that required much closer scrutiny." On cross, Boies asked him if SAP had ever apologized to Oracle for ripping off its code. McDermott reportedly said no, then - when pressed by Boies asking, "I don't mean any disrespect, but what is taking so long?" - said, "I am sorry to Oracle."

He also admitted that no one had been disciplined for stealing Oracle's IP, which could also go a far way with the jury. "It was a matter of priorities," he said. SAP was "focused on a resolution with Oracle."

McDermott, previously CEO of SAP Americas and one of the two men who replaced Apotheker as SAP's CEO earlier this year, also said, TomorrowNow - which Oracle CEO Larry Ellison last week called a "brilliant" idea - was "not a big driver of software sales, it wasn't very successful."

According to Bloomberg, Oracle expert Paul Meyer testified that SAP documents showed it expected to make at least $900 million in revenue off of TomorrowNow and convert at least 3,000 Oracle customers.

In a filmed deposition Apotheker's former co-CEO Henning Kagermann, who shared the title for a while with Apotheker, couldn't remember whether SAP knew TomorrowNow was making inappropriate downloads before or after SAP bought the joint in 2005 for $10 million. Other SAP senior executives on the witness list were never put on the stand.

SAP trotted out its damages expert Stephen Clarke who contended that the German company only owes Oracle at most $40.6 million, if the jury wants to recompense Oracle for licenses to the software TomorrowNow stole - a figure Oracle CEO Larry Ellison put at $4 billion - otherwise SAP only owes Oracle $28 million in lost profits. SAP paid Clarke's company $14 million to come to that conclusion. Oracle's expert Paul Meyer only got paid $4 million to say the number for the stolen software is closer to $1.6 billion. Clarke based his figure on the actual 358 contracts SAP got out of the deal.

Oracle is expected to rebut Friday.

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at)sys-con.com or paperboy(at)g2news.com, and by phone at 516 759-7025. Twitter: @MaureenOGara

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