SAP lawyer: "board was aware" of infringement at time of TomorrowNow acquisition

Uh-oh. Could there have been a slip of the tongue by a lawyer at the Oracle-SAP trial this morning?

SAP attorney Greg Lanier, during a discussion about jury instructions for deliberations, reportedly said in open court: “at time of acquisition, the board was aware of [infringing] software on TomorrowNow’s computers.”

Come again?

The comment, which was reported by All Things D's John Paczkowski, was said while the jury was not present but was said in open court, which means it will become part of the record.

The company's official statement back in May 2007 suggested that it certainly didn't approve of what was happening at its TomorrowNow subsidiary, though it didn't address what it actually knew about before that time. In fact, in that statement, SAP CEO Henning Kagermann referenced "when I learned what happened." His quote in that statement reads:

Even a single inappropriate download is unacceptable from my perspective. We regret very much that this occurred. I want to reassure our investors, customers, partners and employees that SAP takes any departure from the high standards we set for all of our businesses very seriously, regardless of where it occurred or how confined it may be. When I learned what happened, I promptly took action to strengthen operational oversight at TomorrowNow while assuring that we maintain excellent service forTomorrowNow’s customers going forward.

The company went on to say in that statement that SAP itself did not access Oracle intellectual property and that it had "intentionally created a business structure that maintained a firewall between" TomorrowNow and SAP.

OK, but what did they actually know at the time of the acquisition?

Here's the bigger question: Now what?

SAP has already admitted guilt in the matter and, at this point, the trial is all about damages. In fact, the lawyers were warned to keep their lines of questions focused on the damages, specifically for the Oracle executives who testified yesterday. SAP is offering $40 million in damages while Oracle execs, including CEO Larry Ellison, are talking about $4 billion.

If I'm on Oracle's legal team, we're pulling an all-nighter to review the depositions of SAP execs - including Leo Apotheker, the missing-in-action former SAP CEO who is now HP's CEO - to see what might have been said about who knew what at the time of the acquisition. (Perjury, anyone?) And if I'm Ellison, I REALLY want Apotheker on the stand now.

Oracle, of course, has been trying to serve a subpoena on Apotheker for him to testify again - but the company hasn't been able to find him. The general consensus is pretty much that he's somewhere overseas and unavailable. HP also has refused to accept the subpoena and has argued that Oracle is just looking to harass Apotheker in court because he's HP's CEO.

The comment this morning possibly could have no impact on the trial but it just doesn't feel very Larry Ellison to just be OK with a comment like that.

Oracle declined comment. SAP declined comment to Paczkowski.

Previous coverage:

• Oracle vs. SAP: Catz offers real-world insight that Ellison doesn't have
• Oracle's Catz: SAP's settlement offer is "reward for bad behavior"
• Oracle vs. SAP: Ellison pressed to quantify customer losses over TomorrowNow
• Ellison slated for Monday testimony as Oracle-SAP trial continues
• Oracle doesn’t have SAP in its sights, HP is the prize
• Oracle vs. SAP: Phillips, Zepecki on deck; In search of Apotheker
• Oracle vs. SAP over TomorrowNow: Twitter bans and one massive exhibit list
• SAP calls audible in Oracle lawsuit; Seeks to ‘focus’ trial, limit ‘media circus’
• Oracle’s Ellison jabs at HP’s Lane, Apotheker; HP calls it harassment
• SAP’s McDermott to Oracle’s Ellison: bring it on