|By Maureen O'Gara
|October 30, 2010 04:00 PM EDT
Oracle’s long-festering case against SAP for stealing Oracle IP will go to trial Monday despite the monkey wrench SAP suddenly threw into Oracle’s carefully laid and inflammatory prosecution plans.
SAP Thursday capitulated and said it wouldn’t contest Oracle’s contention that SAP management knew all about and contributed to the theft of mountains of Oracle software and documentation by SAP’s now shuttered third-party maintenance subsidiary TomorrowNow.
It was the last thing Oracle wanted to hear. It told the court in a letter that it was opposed to the 11th hour concession, calling it “gamesmanship on the eve of trial” and tactically motivated after three-and-a-half years of resistance to the idea.
Appalled at the loss of 45% of its case, Oracle asked the court for three days grace to regroup and re-orchestrate what was expected to be a brilliant piece of reputation-savaging court theater conducted by its lawyer, the famous litigator David Boies.
Oracle said it would have to alter opening statements, trial arguments and themes, re-edit video, re-do graphics, revise witness outlines and change witness schedules provided the witnesses remained available, things SAP won’t have to do “because it already knew that it would concede all liability and has been planning accordingly.”
The court refused to delay.
Oracle is going to have a long and sleepless weekend.
At the same time the court also denied SAP’s week-old gag motion that would have prevented Boies, a media pet, and the other lawyers from talking to the press outside of court. Oracle will make what it can of that license.
The judge cut the original 36 hours allotted each side to 30 hours – but not the 20 hours SAP had in mind – and ordered that “evidence and argument on contributory infringement will be excluded from the trial unless admissible on the issue of damages for context.”
Oracle is evidently gonna to interpret “context” elastically.
Before the court ruled and despite SAP’s admission, Oracle said it still “must be able to demonstrate facts such as the extent of the infringement and SAP’s role in, knowledge of, and business plans regarding that infringement. These facts,” it said, “inherently relate to the fact and amount of damages appropriate in this case. In short, because of the nature of the damages proof, essentially all of the evidence that was important for liability is also relevant for damages.”
Before Thursday, SAP had admitted liability for TomorrowNow’s sins but resisted Oracle’s allegation that it was party to it.
Then it up and stipulated to what is called in legal circles “contributory copyright infringement” apparently to save its former CEO Leo Apotheker, now HP’s incoming CEO, from having to appear in court as a witness or to duck a court appearance by being conveniently out of town beyond the reach of American subpoenas.
Either way he was bound to be smeared, if not held personally liable, and the HP board along with him.
In an extraordinary show of checkbook solidarity with another company, the only reasons SAP gave for its capitulation were to stop Oracle from turning “the upcoming trial into a media circus” and Apotheker, which it called “one ancillary witness,” from “becoming a pawn in the ‘increasingly caustic rivalry between Oracle and HP.’”
“The point is not whether Mr. Apotheker should testify or whether Oracle has any standing to complain about HP’s decisions over its CEO,” it said. “The point is that Oracle plainly intends to use weeks of trial to harass its competitors, whether they are parties to the case or not. There is simply no other reason to address contributory infringement at trial, but its resolution will not affect damages by one penny.”
Hard to believe that SAP actually believed all these year that contributory infringement – which Oracle can paint anyway it likes – wouldn’t add to its bill for damages.
Since August when SAP admitted to so-called “vicarious infringement,” acknowledging that it profited from TomorrowNow’s pilfering, the trial was just supposed to be about whether SAP owes Oracle $2 billion in damages, as Oracle contends, or merely some tens of millions, as SAP would have it, but Oracle wanted to pin the crime on SAP management, particularly Apotheker, since he was named CEO of HP, taking down two competitors at the same time.
Presumably Leo will stay on Oracle’s witness list since Oracle CEO Larry Ellison has publicly attacked him in the last couple of days as personally “overseeing an industrial espionage scheme” and being “on the run” from a subpoena.
Jury selection starts Monday with opening statements to follow Tuesday.
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