SAP grills Oracle as Apotheker absent from trial

By Dan Levine and Gabriel Madway

OAKLAND, California (BestGrowthStock) – Oracle Corp CEO Larry Ellison testified that SAP’s theft of its software cost his company $4 billion, doubling his previous estimate but failing to cite written evidence of it.

SAP lawyers immediately challenged Ellison to back up the new figure, but Silicon Valley’s richest man said he could not point to documentation proving his claim of the cost of lost business. Germany’s SAP asserts that it owes Oracle merely tens of millions of dollars.

Oracle’s star witness was unusually subdued in court on Monday, a departure from his sometimes heated public rhetoric.

He also failed to produce testimony of his public assertion that Hewlett-Packard Co’s new CEO, Leo Apotheker, knew of the theft when he headed SAP and did nothing about it until Oracle sued.

A source told Reuters that Oracle had hired private detectives to locate Apotheker so he could be subpoenaed to appear in the trial.

The normally outspoken Ellison left the courtroom on Monday without speaking to reporters.

Oracle’s lead trial attorney, David Boies, said outside court it was important for the jury to hear Apotheker in person, and thus it was “appropriate” to try to locate the HP CEO. Boies declined to discuss specifics of Oracle’s search.

“The more detail we go into publicly, the less chance we have to find him,” he said.

Ellison’s highly anticipated testimony on Monday fell short of his brash, accusatory statements against Apotheker and SAP in recent weeks, in both tone and substance.

But JMP Securities analyst Pat Walravens said Ellison succeeded in his most important task in court.

“What they accomplished was to get that $4 billion figure out there to the jury from a credible source,” he said. “Ellison was the best chance to do that.”


Walravens said it is too soon to say whether Oracle is winning, as SAP has not yet begun to present its side. Oracle is expected to rest its case this week.

“Mr. Ellison’s testimony was anti-climactic given his statements these past weeks,” SAP spokesperson Saswato Das said in an emailed statement.

The two software companies, which together dominate the global market for software that helps businesses run more efficiently, are slugging it out in court to determine the amount of damages for the software theft.

SAP has accepted liability for its TomorrowNow subsidiary having wrongfully downloaded thousands of Oracle files, but argues it owes tens of millions — not billions — of dollars in compensation.

Dressed in a black mock-turtleneck and suit and using glasses at times to read documents, Ellison said top Oracle executives had feared SAP’s purchase of third-party software maintenance firm TomorrowNow would allow the German company to woo customers away.

SAP attorney Greg Lanier asked Ellison if he could produce a “scribble on a napkin” of proof that he really believed, in 2005, that TomorrowNow posed a grave risk to Oracle.

“I’ve had that discussion with people, but I tend not to write those things down,” Ellison replied simply.

Oracle president Safra Catz — who often shuns the public spotlight — testified after Ellison, and took on a feistier tone. Had SAP sought a license from Oracle for the software TomorrowNow downloaded, Catz said, SAP would have had to pay up front.

“We didn’t pay for PeopleSoft on layaway,” she said.

So far, Oracle has been unable to subpoena the man whose testimony would likely be the mostly closely watched in the five-week trial: Apotheker.

Oracle has hired private investigators to track him down, believing testimony by the former SAP chief will support its case, according to a source familiar with the situation.

HP has declined to say whether Apotheker is working out of the company’s Palo Alto, California, headquarters or one of its other offices scattered across the globe. Apotheker’s attorneys at the Gibson Dunn & Crutcher law firm have also declined to accept an Oracle subpoena, the source said.

For now, Ellison is the star witness in the trial.

Ellison began his testimony by saying Oracle would come close to going out of business if his company’s software was not protected by copyright laws. Oracle spends several billions of dollars a year on product development.

“We’d have a hard time paying 100,000 employees,” he told the jury of eight men and women.

Oracle could have charged SAP $4 billion to license the programs that were wrongfully downloaded, he said.

Ellison has claimed that TomorrowNow could have taken 20 percent to 30 percent of the customers for its PeopleSoft and J.D. Edwards brands of business management software.

But he could not cite any documentation from 2005 to back that up.

SAP has admitted TomorrowNow wrongly downloaded files from Oracle’s customer service website but says SAP executives did not know of any wrongdoing when they bought the company in 2005. SAP shut TomorrowNow, which provided software maintenance services such as upgrades and bug fixes, after Oracle filed its lawsuit.

In 2005, SAP launched a marketing program dubbed “Safe Passage” through which it tried to persuade Oracle customers to switch to SAP software. It offered discounted maintenance on existing Oracle products through TomorrowNow, and then encouraged customers to gradually replace that software with SAP programs.

The case in U.S. District Court, Northern District of California is Oracle USA, Inc., et al. v. SAP AG, et al, 07-1658.

(Writing by Jim Finkle; Editing by Richard Chang, Gary Hill)

SAP grills Oracle as Apotheker absent from trial