SAP will not be contesting claims of contributing to TomorrowNow's copyright infringement in the upcoming SAP vs Oracle lawsuit, scheduled to begin on Monday.
In an email to Oracle's lawyers on Thursday, Tharan Gregory Lanier — one of SAP's chief legal representatives in the case — confirmed that SAP would not be contesting claims of "contributory copyright infringement" and proposed that, as such, the trial should be shortened to no more than 20 hours per side.
"It makes good sense to eliminate the issue now, because whether SAP is contributorily liable or not does not affect damages at trial at all and keeping the issue in the case would only satisfy Plaintiffs' desire to turn the upcoming trial into a sideshow," wrote Lanier in the official court filing. "This case has always been and should be about copyright damages; a case focused on that topic can be resolved in 20 hours per side, or less."
On Tuesday, Oracle chief Larry Ellison challenged HP to make former SAP chief Leo Apotheker available to testify in the trial regarding his level of involvement and knowledge of the alleged copyright violations.
However, SAP argues that this new focus on Apotheker's alleged involvement in the case is a smokescreen designed to prolong the trial.
"In briefing on their motion for partial summary judgement concerning contributory infringement, Mr Apotheker was not even mentioned by name," wrote Lanier. "The point is not whether Mr Apotheker should testify or whether Oracle has any standing to complain about HP's decisions over its CEO. 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," he added.
In response to the filing Oracle issued a statement welcoming the decision not to fight the charges. "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," said Oracle spokeswoman Deborah Hellinger. "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," she added.
Oracle has requested a delay to the start of the trial — currently scheduled to begin on Monday — until Thursday, 4 November.
In deciding not to fight the contributory copyright claim, SAP is hoping that a shorter trial will allow less time for media coverage. SAP also reiterated its request from Monday that Oracle's lawyers be prevented from talking to the media amid fears that it could influence jurors' opinions.
SAP has already admitted "ultimate financial responsibility" for the actions of TomorrowNow, which it purchased in January 2005. The company is accused of downloading more than 10,000 files of Oracle proprietary software.
However, SAP maintains that Oracle's damage claims, which run into the billions, should not exceed tens of millions.