UPDATE 2-SAP grills Oracle, Apotheker absent from trial

* Ellison takes stand 3-1/2 years after filing suit

* SAP attorneys seek to undermine Oracle’s claims

* Oracle President Catz also testified

* Oracle hires detective to find HP CEO – source
(Adds details on Ellison’s testimony, search for HP CEO)

By Dan Levine and Gabriel Madway

OAKLAND, Calif., Nov 8 (BestGrowthStock) – Oracle Corp (ORCL.O: ) CEO
Larry Ellison testified that SAP’s (SAPG.DE: ) theft of its
software cost his company $4 billion, doubling his previous
estimate, but failed to bring strong supporting written

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

Oracle’s star witness also failed to produce testimony of
his public assertion that Hewlett-Packard Co’s (HPQ.N: ) 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. [ID:nN08231011]

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

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.

But attorneys for SAP used emails from Oracle executives in
a bid to undermine his claim. One showed the jury an email from
Oracle Chairman Jeff Henley stating that TomorrowNow was not a

“That’s not what I believe. But that’s what he said,”
Ellison told the packed courtroom.


Europe’s biggest software maker also introduced an email
from Oracle President Safra Catz, in which she said her company
had not lost any large customers to SAP in the two months after
it bought TomorrowNow in 2005.

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. [ID:nN08231011]

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

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.

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.

Oracle President Safra Catz also took the stand on Monday.
Catz, who rarely appears in public, has been in the courtroom
observing the trial since it began a week ago.

SAP has admitted TomorrowNow wrongly downloaded files from
Oracle’s customer service website but says its 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. [ID:nN03126903]

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,
(Writing by Jim Finkle; Editing by Edwin Chan, Gerald E.
McCormick, Steve Orlofsky and Richard Chang)

UPDATE 2-SAP grills Oracle, Apotheker absent from trial