SAP calls audible in Oracle lawsuit; Seeks to 'focus' trial, limit 'media circus'

SAP is altering its tactics in the Oracle TomorrowNow lawsuit in a move to speed up the trial and prevent Larry Ellison & Co. from orchestrating "a media circus" designed to "use weeks of trial to harass its competitors, whether they are party to the case or not."

It's pretty clear that Oracle is issuing statements here, here and here to take aim at Hewlett-Packard CEO Leo Apotheker, who was the former CEO of SAP.

To head off Oracle's bluster, SAP said in a letter it won't contest allegations that it contributed to copyright infringement via its now defunct third party support unit TomorrowNow (Techmeme). Before this move, SAP accepted liability for TomorrowNow, but contested whether it knew of what was going on at its unit.

Leading up to Monday's trial, there has been a lot of punches being thrown, but SAP is almost a sideshow compared to the HP and Oracle banter. Oracle mocked HP for dismissing former CEO Mark Hurd, who was later hired by Ellison. At first it appeared IBM was Oracle's obsession, but then those two made peace. Then HP turned around and hired Apotheker, Ellison's long-time nemesis, and made it clear that the company was going to beef up its software business. Also see:

• Oracle's Ellison jabs at HP's Lane, Apotheker; HP calls it harassment
• Oracle's Ellison takes aim at HP's Apotheker; TomorrowNow trial jabs escalate
• SAP-Oracle TomorrowNow hubbub center of HP-NYT duel over Apotheker
• SAP's McDermott: Oracle Fusion upgrade could mean it's poaching time

Now SAP aims to defuse the situation, pay damages and move on. SAP is essentially saying "let's speed things along and pay up already." In a letter, SAP attorney Tharan Gregory Lanier said:

• "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."
• "The sole remaining liability issue is threatening to overwhelm the case and turn the upcoming trail 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."
• "The point is not whether Mr. Apotheker should testify or whether Oracle has any standing to complain about HP's decision over its CEO. The point is that Oracle plainly intends to use weeks of trial to harass its competitors."

Lanier also asked for the court to grant a gag order because Oracle wants to publish confidential settlement documents. That request has been denied.

On the surface, SAP's request makes sense. However, Oracle has SAP (and by proxy HP) backed into a bit of a corner. Reasonable parties would just get the trial over with. However, Oracle has an opportunity to drag HP and SAP through the mud in an attempt to win future sales. Whether this Oracle gambit works remains to be seen---it could backfire.

Bottom line: The enterprise technology business can be ugly. Whatever happens in court is almost irrelevant---SAP is paying up anyway---since this spat will ultimately judged in the IT buyer's court of perception.