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SAP Blinks, ‘Confesses,’ Larry Proves He’s His Own Best Lawyer

Will not contest Oracle’s contention that it was party to the already admitted theft by its TomorrowNow third-party subsidiary

It appears that after a few hundred well-chosen words of public hectoring by Oracle CEO Larry Ellison and the vision they brought to mind of HP's new CEO Leo Apotheker being mauled in court by Larry's lawyers - or publicly crucified for not showing up - that SAP has conceded one of the key defenses in its upcoming trial for theft of Oracle IP.

It will not contest Oracle's contention that it was party to the already admitted theft by its TomorrowNow third-party maintenance subsidiary and that SAP's upper management knew all about it and encouraged it.

It has previously accepted that it was liable for TomorrowNow's actions but denied that SAP proper had anything to do with it.

Larry of course contends that Apotheker "knew all about the stealing."

It's unclear whether the move will get Apotheker, SAP's former CEO, as well as other high-ranking SAP luminaries off the hook.

Oracle has asked the court to delay the start of the trial from Monday November 1 to next Thursday November 4 so it can revamp its trial strategy. SAP still wants to start on Monday although it figures that the five-week trial could be condensed to 20 hours a side with the evidence and arguments related to SAP's involvement excluded.

SAP clearly ties its change of position to Larry's baiting. It told the judge that it was trying to deflect Oracle's attempt "to turn the upcoming trial into a media circus, focused not on the issues actually in dispute but on the obsession of Oracle and its founder, Larry Ellison, with Hewlett-Packard and whoever may be 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, because its resolution will not affect damages by one penny."

Of course that remains to be seen. It should cost SAP more.

The concession allowed Oracle to gloat that "SAP management has insisted for three and a half years of litigation that it knew nothing about SAP's own massive theft of Oracle's intellectual property. Today, SAP has finally confessed it knew about the theft all along. The evidence at trial will show that the SAP Board of Directors valued Oracle's copyrighted software so highly, they were willing to steal it rather than compete fairly."

Since SAP conceded liability a few months ago, the trial was just about how much SAP owes Oracle and in an August filing Oracle's lawyers put the damages Oracle wants for all TomorrowNow's illegal downloads of its stuff at $2.15 billion. It also wants another $288 million for SAP's alleged profits from the infringement.

SAP has about $2.7 billion in the bank.

SAP's retreat makes one wonder whether SAP really does figure HP will buy it now that Apotheker's in charge.

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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