November 2, 2010 / 5:05 PM / 7 years ago

HP's new CEO to testify at Oracle-SAP trial

<p>Oracle CEO Larry Ellison talks during his keynote address at Oracle Open World in San Francisco, California September 22, 2010. REUTERS/Robert Galbraith</p>

OAKLAND, California (Reuters) - Hewlett-Packard Co’s new CEO is set to testify at Silicon Valley’s biggest trial in years, possibly answering charges he oversaw SAP AG’s theft of software from Oracle Corp.

Oracle attorney Geoffrey Howard told a court on Tuesday that former SAP CEO Leo Apotheker -- who started his job as head of HP on Monday -- would testify at the high-stakes trial, with his credibility at stake.

The trial’s other celebrity witness will be Oracle CEO Larry Ellison, a billionaire playboy known for his public outbursts and a passion for racing sailboats and cars.

Tuesday marked opening arguments in the technology industry’s most closely watched courtroom battle in years. SAP has admitted liability for the wrongful downloading of software content from Oracle, but the two disagree sharply on how much SAP should pay in damages.

SAP says Apotheker and other executives did not know of any wrongdoing when they bought TomorrowNow, and shut it down after they found out. But Oracle’s attorneys said at least some SAP employees knew of irregularities before the suit was filed.

They showed jurors an instant messaging exchange between two TomorrowNow employees after Oracle’s initial filing of the lawsuit.

“Wonder who on the inside told?” Kimberly Martinez asked.

“I think they caught us,” Kristin Paige responded in the exchange that was presented to the jury by Oracle.

HP would not comment on whether Apotheker would show up in court. If he does not appear in the Oakland, California, courtroom, Oracle’s attorneys could show a videotape deposition that he has already given.

A French native, Apotheker is no stranger to controversy after having parted ways with SAP amid a barrage of customer and investor complaints. His hiring by HP took some by surprise, initially causing shares in the world’s biggest technology company by revenue to decline.

<p>Hewlett-Packard Co's new CEO Leo Apotheker in a file photo. REUTERS/File</p>

TITANIC DOWNLOADS

SAP bought TomorrowNow in 2005 for $10 million. TomorrowNow built a Web-scraping robot program dubbed “Titan” that automatically downloaded software and other materials from Oracle’s customer service website.

Since SAP has already admitted to wrongdoing, the jury of eight men and women need only determine how much money SAP should pay Oracle in damages.

Attorneys for Oracle did not provide a specific number to the jury on Tuesday, though they said it was in the billions of dollars. SAP’s lawyers put the total at about $40 million.

SAP attorney Robert Mittelstaedt said Oracle wanted a jury award “out of proportion” to the harm it had suffered.

“They want a windfall. They want a bonanza,” Mittelstaedt said.

Ellison, Oracle’s co-founder and CEO, has waited 2-1/2 years to bring SAP to court. Ellison has stated he has evidence Apotheker was complicit in SAP’s improper downloading of the software, which TomorrowNow used to provide low-cost maintenance services to Oracle customers.

In his opening statement, SAP attorney Mittelstaedt said the German company did not conduct proper due diligence before it bought TomorrowNow to see if it was complying with Oracle’s copyright. He called the TomorrowNow acquisition a “mistake.”

Speaking outside the packed courtroom on Tuesday, SAP co-CEO Bill McDermott said the parties were past the opportunity to settle.

“A lot of things have been said. Now it’s up to the jury to decide,” said McDermott, who chatted briefly with Oracle President Safra Catz outside the courtroom.

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 Dan Levine and Jim Finkle; Editing by Edwin Chan, Gary Hill

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