SAP grills Oracle as Apotheker absent from trial

OAKLAND, California (Reuters) - Oracle Corp CEO Larry Ellison testified that SAP’s theft of its software cost his company $4 billion, doubling his previous estimate, but failed to bring strong supporting written evidence.

Oracle CEO Larry Ellison enters U.S. District Court in Oakland, California November 8, 2010. REUTERS/Robert Galbraith

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 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 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 threat.

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“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.

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 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.

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.

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 Edwin Chan, Gerald E. McCormick, Steve Orlofsky and Richard Chang