The practically complete absence of rules or sanctions is nevertheless astonishing: civilians or protected objects such as churches or mosques can be attacked with impunity, in scenes portraying interrogations it is possible to torture, degrade or treat the prisoner inhumanely without being sanctioned for it and extrajudicial executions are simulated.

— From a 2007 study of war violence in video games by TRIAL, a Geneva-based organization that assists in cases involving international crimes such as genocide, crimes against humanity and war crimes. The topic of whether the trivialization of war crimes as depicted in videogames warrants regulation is being revisited this week during the 31st International Conference of the Red Cross and Red Crescent in Switzerland.

Her reply, as first reported by Reuters: “Not at this distance, your honor.”

Not at this distance, your honor.

Not the greatest answer in a case in which the defendant stands accused of “slavishly” copying a rival’s designs. More so, since Sullivan was standing just 10 feet away from the devices she was asked to identify.

Thankfully, one of her colleagues was able to come to her rescue, but only after this plea from Koh:

“Can any of Samsung’s lawyers tell me which one is Samsung and which one is Apple?”

Not a good day in court for Samsung.

This morning, News Corp. CEO and majordomo Rupert Murdoch, his son James (who is also a top company exec) — as well as former employee and full-time lightning rod Rebekah Brooks — march on down to the British Parliament to answer questions from a committee there about the ever-growing PhoneGate scandal.

For those living under a rock, News Corp. is embroiled in ever more serious controversy about who knew what and when (also where, why and how much) in the hacking of phones of a myriad of well-known people in the U.K. by its News of the World tabloid newspaper.

Besides celebrities and politicians, that has included the voicemails of a murdered girl, an appalling act that has galvanized public opinion and the weak spines of legislators into action in this inquiry.

It’s sordid, it’s ugly and it makes for what could be an explosive event, starring the man who brought you “Titanic,” Glenn Beck, “Glee” and, most recently, the sale of Myspace.

There’s no question, getting the 80-year-old Murdoch on the ropes will be the aim of the committee members holding the hearing, and how one of the world’s most famous and legendary media moguls performs — or does not — will be a big deal to both interested observers and News Corp. shareholders.

By way of full disclosure, that’s not me, but this site is owned by Dow Jones, which is owned by News Corp. In other words, somewhere up the corporate food chain, Murdoch is my boss.

In any case, that has never stopped me or AllThingsD.com from telling it like it is, so here is the liveblog of what is sure to be a doozy of a media event:

6:36 am PT:: It all starts for the Murdochs, as soon as the former Scotland Yard head John Yates has completed questioning about the police’s obvious bungling of the various investigations over the years.

Rupert Murdoch and his son, James Murdoch, are on, looking grave and dressed in grey.

Sitting behind them are Rupert Murdoch’s wife, Wendi Deng, and his top adviser at News Corp., Joel Klein, who is heading up the phone hacking scandal internally at the company.

The hearing — in a room that looks like a high school debate could take place there — starts off politely enough.

But the first question is directed toward James Murdoch about his clearly incomplete investigation when phone hacking allegations were first made many years ago. He begins with an apology.

“These actions do not live up to the standards of News Corp.,” says the younger Murdoch.

He is interrupted by his father, Rupert Murdoch, who notes rather dramatically: “This is the most humble day of my life.”

The questioner quickly asks the obvious query, after James Murdoch claims News Corp. was not in full possession of the facts when execs had told a previous committee there was no reason to believe there was more widespread hacking.

Were News Corp. execs lying?

James Murdoch continues to insist that the bulk of evidence came out — “real evidence” — in later civil trials. And also, that News Corp. is now investigating the situation fully.

He throws around words like “proactive action” and “transparency,” which is probably cold comfort now to those hacked when things were less clear to News Corp.’s senior management.

Now up, Rupert Murdoch, who is asked quickly about statements he made about not tolerating wrongdoing and who had lied to him at News Corp. about the phone hacking.

Apparently, he “didn’t know” a lot about the hacking that took place, while also defending the non-hacking employees of his company.

But the questioner is still on him about exactly what he did know about the situation, which seems to be — at least according to his testimony — a lot of I-don’t-knows.

6:53 am: It continues about what Rupert Murdoch knew and when he knew it and what he did. Or not.

As Rupert Murdoch keeps up with this tone of not being clued in to what have turned out to be critical events, James Murdoch wants to keep jumping in with the details, which he is eager to impart.

“At what point did you find out criminality was endemic at News of the World?” asks the questioner.

Rupert Murdoch does not like the word endemic, but stresses that he was “shocked, appalled and ashamed” by the case of the murdered girl, Milly Dowler.

The questioner seems frustrated by Rupert Murdoch’s answers, which are, for the typically razor-sharp media mogul, unusually slow.

Like a persistent terrier who wants to perform, James Murdoch is back again offering to serve up the deets.

7:04 am: Now, it is onto the closing down of News of the World: Was the tabloid shut down because of the criminality?

“We had broken our trust with our readers,” says Rupert Murdoch. “We felt ashamed for what had happened.”

A new questioner is on, with a bizarre query about why Rupert Murdoch came in the back door of the Prime Minister’s house at 10 Downing Street on a recent visit there.

It’s a cloddish effort to show him as a powerful puppetmaster to pols, but only serves as a punch line.

Back on track, with questions about whether there was hacking in the U.S., which Rupert Murdoch said he could not believe had happened.

More questions about how badly the company acted, which came down to the questions about whether he was “ultimately” responsible for the hacking.

“Nope,” says Rupert Murdoch, who keeps insisting he relied on others, some of whom apparently “misled” him.

It’s an astonishing admission and, really, excuse, given he has been chairman, CEO and a very strong leader of News Corp. for more than a half-century.

7:16 am: A new questioner, who asks who decided to close down News of the World. It was Murdoch himself, his son and other execs.

Next up, why did News Corp. pay off a victim of hacking, which James Murdoch did without informing his father or the News Corp. board.

James Murdoch essentially points out that it is typical to do this in companies of the global scale of News Corp.

These are apparently very busy, busy, busy people, who do not seem to have time to notice how such juicy and best-selling scoops might have been magically produced by News of the World.

Onto ethical conduct guidelines, which News Corp. has in a pamphlet form, says James Murdoch, but pages which some at the company have obviously never cracked.

Rupert Murdoch is asked again about his culpability in the case, which he continues to maintain he does not shoulder the blame.

James Murdoch does note that the company “will think more forcefully … about our journalism and ethics.”

Given the situation, in which every day brings a new revelation of bad acts by News Corp. employees, this promise of better behavior seems to be a case of much too little and very, very late.

Rupert Murdoch still uses the opportunity to stress the need for a free press, despite its excesses.

7:31 am: More about the payments to settle with phone hacking victims and how soon the company realized the problems were more widespread.

James Murdoch talks about how he might have acted differently had he known more then as he does now.

“If we knew now what we knew then,” says James Murdoch, “we would have taken more action and moved more aggressively.”

But what else is he going to say? It’s a could-have, would-have, should-have line of questioning that is eliciting very little in the way of true information.

Finally, a good point about “willful blindness,” which is a term from the Enron scandal about avoiding knowing about problems you really should have known about.

“Is that a question?,” asks James Murdoch. It is a statement, actually, and a decent enough one.

“We didn’t do that,” says Rupert Murdoch firmly this time.

Still, soon enough, Rupert Murdoch is insisting he was not as involved as people have imagined him to be with the management of his newspapers.

A new questioner is pressing this important point, but Rupert Murdoch is not biting on a query about his legendarily hands-on managing style.

“I’d say, ‘What’s doing?’” he explains about his conversations with editors, but adding he might not have been told about payoffs to phone hacking victims.

The questions are in the deep weeds here, but it’s still interesting that Rupert Murdoch continues to maintain that his life was too busy to wallow in the details, however controversial and important those details might be.

7:55 am: More and more don’t-knows pile up and up in a giant mountain of acts perpetrated by someone somewhere, but not the Murdochs.

“I can tell you I was surprised as you were,” says James Murdoch about certain payments to various hackers and those who were hacked.

Was it Les Hinton, who then ran News International and later Dow Jones, from which he recently resigned?

Could be! Maybe! Mistake were made! Who knows!

Well, someone does!

It moves onto Brooks, the tarnished News International exec and editor whom Rupert Murdoch does note he still trusts. Finally, some certainty!

Brooks is definitely one of the more compelling characters in this drama, although the media focus on her striking red hair color seems odd and vaguely sexist, as if she is some flame-haired she-devil from media hell. She might certainly be guilty in this mess, but her fabulous hair has nothing to do with it.

(Rupert’s mane is grey, by the way, and James’ is brown, if you really need to know.)

Fascinatingly, Murdoch’s backing of Brooks has been strong and consistent, despite intense criticism of her by many in this scandal.

The payment of legal fees of perpetrators and payments to the victims in the hacking seems to obsess one questioner, who wants News Corp. to stop doing it.

Murdoch says he’d like to if contracts did not preclude that, which essentially means News Corp. will keep up forking over the legal fees and payments.

8:12 am: The attention turns to how James Murdoch found out about the various emails that showed there was more evidence of hacking than was first thought about and what he felt about it.

He says very little, noting that the matter is under police investigation. It’s not don’t-know now, but can’t-say.

The hearing is beginning to feel a little rope-a-dope, with the Murdochs apologizing and taking blows, saying very little — either claiming lack of knowledge or lack of ability to comment about the ongoing police inquiry — and tiring out the questioners.

It is a classic tactic of the boxing champion Muhammad Ali and it works in the ring.

Whether that will be the case with PhoneGate remains to be seen, but it certainly has made what could have been a more explosive hearing much less so.

Instead, it seems to have turned into a what didn’t the Murdochs know and when didn’t they know it hearing.

On questioner gets this irony. “That’s frankly unsatisfactory,” he says about the Murdochs continuing shock and surprise at the thorny situation they find themselves in.

Maybe it seems a little hard to believe, but the persistent story from James Murdoch is that they were told by their lawyers, the police and others that nothing was awry once the initial phone hacking investigation was complete and only found out about the larger problem in later civil lawsuits.

But, asks the questioner to Rupert Murdoch, should his editors and managers at News of the World have known about it?

Of course, they should have.

But, once again, the legendary media baron, who made his fortune and fame in disseminating news and information across the world in newspapers, on television, on satellite and on the Web — at least for now — can’t say.

So, was he “kept in the dark” about the situation? Rupert Murdoch acknowledges he might have asked more questions, although he noted his British newspapers were only a small part of his massive empire.

But, he adds, “Anything that is seen as a crisis comes to me.”

Well, not the phone hacking crisis, it seems.

But, they’re sorry. So sorry. And, of course, humbled.

8:54 am: Suddenly, there is a disturbance, in which someone seems to have possibly attempted to accost the Murdochs.

But it is not clear what has happened, as the hearings are suspended for 10 minutes.

James Murdoch leaps up quickly to protect his father, which he has been doing in this hearing verbally already, where the strategy seems to be to let him largely do all the talking.

Even faster on her feet and with arms raised toward a man in a plaid shirt and carrying a pie plate with shaving cream is Rupert Murdoch’s wife, Wendi.

The man seems to have managed to get some of the foam on Rupert Murdoch, but Wendi Deng appears to have partially thwarted her husband from receiving a full pie in the face.

It’s the first striking visual of this hearing, protecting the patriarch and the king of the empire from harm, no matter what.

Here is a video of the incident:

According to Britain’s Channel 4: “As the man was being led away in handcuffs escorted by a single police officer, he refused to give his name, saying: ‘As Mr Murdoch himself said, I’m afraid I cannot comment on an ongoing police investigation.’”

9:09 am: The room is cleared, so it is only the Murdoch crew behind James and Rupert Murdoch, and now the committee is even more solicitous.

Rupert Murdoch is without his jacket and his wife is being commended for her most excellent left hook.

Still, it’s back to business and the questioner does zero in on a major disconnect over how two media execs as famously aggressive and involved as the Murdochs were so passive in this hacking situation.

It “was a terrible shock,” says James Murdoch.

The same is said about what would be even more disturbing and recent allegations of the hacking of the victims of the 9/11 bombings.

Both father and son say there is no evidence of this so far, but they were surely looking into it.

While it certainly did not come through in what have largely been feckless questions from the committee, the final questioner does correctly ask the pair if they might want to pay more attention.

The last question is for Rupert Murdoch and finally gets to the real query everyone wants to ask.

Noting Murdoch is “captain of the ship,” she asks if he has considered resigning.

“No,” answers Murdoch firmly.

“Why not?” she presses.

“People let me down and it’s for them to pay,” says Rupert Murdoch. “But I think, frankly, I am the best person do clean this up.”

He finishes up with a statement about being sorry, how he was also betrayed and how phone hacking and bribery is wrong.

“Saying sorry is not enough, things must be put right,” he says.

Finally, something we do know.

In addition, the U.S. Court of Appeals for the Federal Circuit ordered the trial court to again look at whether Rambus wrongly destroyed documents in the Hynix case.

In a separate case involving Micron Inc., the appeals court determined Rambus had wrongly destroyed documents and ordered the trial court to examine again whether that destruction justifies dismissing Rambus’s patent claims against Micron. Micron initially won a dismissal because the trial court said Rambus’s claims were unenforceable because of the document destruction.

Read the rest of this post on the original site »http://voices.allthingsd.com/wp-admin/post.php?post=41077&action=trash&_wpnonce=c40b3cfbcb

The verdict by the 12-member jury, following 11 days of deliberation, capped a blockbuster trial that started in early March featuring 45 recorded calls showing how the hedge-fund executive trafficked in insider tips provided to him by a web of contacts at the top tier of American business.

The widely watched trial exposed the behind-the-scenes dealings of a once-prestigious hedge fund that gained access to highly sensitive information about, among other things, Goldman Sachs Group Inc. at the height of the financial crisis. The government put at $63.8 million the amount in illegal profits and avoided losses Galleon realized through the scheme.

Read the rest of this post on the original site »

A spokesperson told us today that Amazon Tote launched in the Seattle area in July 2010 as a new experimental customer delivery option and confirmed “This pilot program will no longer take orders as of 6 p.m., Thursday, March 3.”

The Tote service offered a free weekly delivery on a specified day. The perk was that it didn’t require a minimum-order size and you got to keep the reusable totes, however, the delivery day could not be changed.

It was a hybrid between Amazon’s Prime service, which offers free two-day shipping with an annual fee, and the company’s Amazon Fresh grocery service, which delivers food and some regular items directly to some houses in Seattle, also for a fee. Customers of Tote will continue to have those two options.

The discontinuation of the service appears to be a reversal for the Seattle-based company, which said in January that the program “will be expanding soon.” The Financial Times reported separately that the e-commerce company was headed for a national roll-out.

The spokesperson did not return requests for comment as to why the service was shutting down.

Prosecution and defense lawyers are scouring the site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. They consider what potential jurors watch on television, their interests and hobbies, and how religious they are.

Josh Marquis, district attorney of Clatsop County in Oregon, did background searches on Facebook to help pick a jury for a penalty trial last summer to determine if a convicted murderer should get the death penalty. He was looking for clues on how potential jurors might feel about the defendant, a man who killed a couple as a teenager in 1988. The jury imposed the death penalty.

Read the rest of this post on the original site

SAP apparently has other plans. Having won in December a small victory over the amount of interest it will have to pay, today SAP said it plans to argue that it shouldn’t have to pay quite as much to Oracle.

In a statement, it called the judge’s order a “procedural matter,” and said it plans to make post-trial motions challenging the amount the jury awarded. If not successful, it may appeal, the company said. Its full statement is below.

“Today the Court entered judgment in the Oracle v. SAP/TomorrowNow litigation, which is a procedural matter that occurs after a jury verdict. As stated before, we have accepted liability for the actions of TomorrowNow and have been willing to fairly compensate Oracle, but we believe that the amount awarded by the jury is disproportionate and wrong. Once the judgment is entered, SAP is permitted to challenge the jury’s award by way of “post-trial motions,” which are made to the trial judge. SAP will file these motions in the coming weeks asking the Court to reduce the amount of damages awarded or to order a new trial. We look forward to the Court’s resolution of the issues we will raise in our post-trial motions. Depending on the outcome of the post-trial motion process, SAP may also consider an appeal.”

Oracle, on the other hand, was happy to take another victory lap. “We are very pleased that the court’s final judgment for $1.3 billion, plus the court-awarded interest and the $120 million SAP paid during trial to settle additional charges, confirms the jury’s verdict against SAP for its massive intentional copyright infringement,” Oracle said in an emailed statement.

PREVIOUSLY:

• Oracle to SAP: You Owe Us Another $212 Million
• Oracle-SAP Verdict: SAP Owes Oracle $1.3 Billion
• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Something is definitely going on between Intel and Nvidia, and it’s possible that a settlement could be announced after the market closes today, sources said.

[UPDATE: Yes, they settled, in a new $1.5 billion licensing deal. Story to come.]

The two had been scheduled to go to trial in December in the Delaware Chancery Court, but the parties agreed to reschedule that.

Soon, word of settlement talks surfaced. Still, as recently as last week, a source familiar with the matter said a trial was on track for February. Now, other sources are saying that may not be the case, which would suggest a settlement is imminent.

Nvidia CEO Jen-Hsun Huang declined to discuss the Intel dispute in an interview with Mobilized’s Ina Fried at D@CES last week.

The fight between the two tech giants is over the terms of a 2004 agreement under which Intel granted Nvidia access to some of Intel’s technology for use in its chipsets, the chips that sit between the microprocessor and the graphics chip like connecting tissue. The cross-licensing agreement allowed Nvidia to make chipsets that were compatible with Intel microprocessors.

Late Tuesday a Federal judge ordered SAP to pay interest on the gargantuan sum Oracle won against it in a November copyright infringement trial. But it also agreed to calculate that interest using a different method from the one employed by Oracle. And in doing so it lopped about $195 million dollars off the prejudgment interest Oracle had originally sought.

So good news or, rather, significantly better bad news. Certainly, SAP was pleased to learn it’s not obligated to pile quite as much prejudgment interest atop Oracle’s award as it might have been.

“While we believe that Oracle should only be awarded damages, we appreciate that the Court agreed with SAP on the proper calculation of interest in this case which dramatically lowered the amount,” an SAP spokesman told me. “The interest the Court ordered, based on the statutorily-set interest rate of .3 percent and the accrual period of September 29, 2006 through December 23, 2010, is approximately $16.5 million, rather than the over 200 million Oracle was seeking.”

Of course, that doesn’t make Oracle’s damages award any less massive. But then SAP hopes to whittle that down as well. As the company said in its filing last week: “Defendants plan to challenge that verdict on a variety of grounds in their post-judgment motions, including that it is excessive and overcompensates Oracle.”

Oracle declined comment.

PREVIOUSLY:

• Oracle to SAP: You Owe Us Another $212 Million
• Oracle-SAP Verdict: SAP Owes Oracle $1.3 Billion
• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Both showed technologies at D: Dive Into Mobile aimed at making the headsets useful for more than just making cellphone calls. And on Thursday, Plantronics plans to announce what sounds like another pretty nifty feature. Dubbed InstantMeeting, it is a piece of software that makes it possible to dial in to a meeting with the press of a button–instead of having to go through the usual process, which involves calling a number, entering a conference code and then maybe a password to boot.

For now, InstantMeeting is a program for the BlackBerry (see image) and Android, though Plantronics says that an iPhone version is in the works, as is a Skype version and one that can connect directly to Microsoft’s Outlook software–the place where that call-in data often is buried. Those other versions should come early next year.

As for the Android and BlackBerry programs, a free trial version allows 20 free dial-ins, while the premium version, which allows for unlimited dial-ins, will sell for $2.99. However, Plantronics says that those who download the free trial version on Thursday will get 1,000 free calls.

I’ll have to see it in action to believe it, but it sure sounds like a time-saver. Plus, if it works, when your phone drops the call, you can just press one button to dial back in. Of course, as with Jawbone’s Thoughts application for the iPhone, I don’t actually need a headset to use InstantMeeting.

This in addition to the $120 million in attorneys’ fees SAP agreed to pay when the trial first began.

SAP, which believed that the damages amounted to about $28 million, had argued that Oracle was looking for an undeserved bonanza out of the jury, while Oracle contended the market value of licensing the IP was between $1.65 billion and $3 billion.

As Nucleus Research’s Rebecca Wettemann notes, the damage award is “a drop in the bucket” to Oracle, but a stern warning to the industry. Looking forward, she said, “You have to bet Oracle will be reminding customers they’re choosing between thought leaders and intellectual property thieves–and what that indicates more broadly about how SAP does business.”

In a statement issued after the verdict , SAP was contrite:

“We are, of course, disappointed by this verdict and will pursue all available options, including post-trial motions and appeal if necessary. This will unfortunately be a prolonged process and we continue to hope that the matter can be resolved appropriately without more years of litigation. The mark of a leading company is the way it handles its mistakes. As stated in court, we regret the actions of TN, we have accepted liability, and have been willing to fairly compensate Oracle. Throughout this matter, our customers, employees and partners have stood by us and, for that, we are grateful. Our focus now is looking forward, helping our customers be best run businesses, and extending our legacy of industry leadership well into the future. We thank the jury for its diligent service through this lengthy trial and the Court for its supervision of this complex case.”

On behalf of Oracle, President Safra Catz sounded as clinical as Jack Webb wrapping up an episode of “Dragnet.” “For more than three years, SAP stole thousands of copies of Oracle software and then resold that software and related services to Oracle’s own customers,” she said in a statement. “Right before the trial began, SAP admitted its guilt and liability; then the trial made it clear that SAP’s most senior executives were aware of the illegal activity from the very beginning. As a result, a United States Federal Court has ordered SAP to pay Oracle $1.3 billion. This is the largest amount ever awarded for software piracy.”

PREVIOUSLY:

• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

[Image credit: Pre-Ellison Samurai image by Artem Mirolevioch]

“I think it would have been helpful and important for the jury to hear from him. On the other hand, it wasn’t essential. We were able to put our case in anyway.”

– Oracle attorney David Boies changes his tune on the importance of HP CEO Léo Apotheker’s testimony in the company’s copyright infringement lawsuit against SAP

ORACLE on SAP
“Oracle brought suit to stop the illegal conduct and hold SAP fully accountable for its actions. Four years ago we discovered massive and indiscriminate downloading of software and support materials from an Oracle support Web site.

SAP immediately and, for three and a half years, repeatedly denied wrongdoing and responsibility. But on the eve of trial SAP began a series of admissions to claims of copyright infringement, violations of state and federal computer fraud laws, unfair competition, breach of contract, interference and other claims that settled liability before the trial began. Trial evidence and testimony showed that the SAP Executive Board was fully aware of the illegal activity and still acquired TomorrowNow to unlawfully take Oracle support revenues and move Oracle customers to SAP products and to disrupt and discredit Oracle. SAP not only failed to take action to stop the behavior, but it expanded it for 18 months after Oracle filed suit.

The pre-trial admissions and testimony over the last few weeks have exposed SAP’s scheme to capitalize on the use of stolen intellectual property. While Oracle seeks damages to fairly compensate it for this massive theft, it is perhaps more important to expose the illegal conduct by a dominant player in the industry and to send a message that intellectual property rights must be respected.”

SAP on ORACLE
The time for testimony and sidewalk claims by plaintiff’s counsel are over. The actual testimony took place in court.

We are very proud of the SAP legal team and our counsel Jones Day for their work in presenting our defense. We believe we have presented a solid case for the reasonable and appropriate compensation for damages by the limited actions of TomorrowNow. This case is not about who knew what, did what or supervised what…those issues were handled by stipulations prior to trial. This case is only about the damages, and we trust now in the jury to examine the evidence and testimony and reach a fair and just conclusion.

SAP has a long history as a trusted partner and we believe our legacy will extend beyond this matter. Throughout this matter over these three years, our customers and partners have stood by us and for that we are grateful. The mark of a successful leading company is the way it handles it’s mistakes. As indicated in court, we regret the mistakes of TN, we apologize to Oracle, and we have sought to address these mistakes by compensating Oracle for the damages. All along, we have done the responsible thing by admitting to the mistakes, taking care of the customers, winding down the TN business, and accepting liability. We are confident we can put this matter behind us and continue our leadership of this industry.

PREVIOUSLY:

• Oracle-SAP: Closing Statements Followed by Closing Insults
• Oracle-SAP Case Closes With $1.67 Billion Difference of Opinion
• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

“The defendants have admitted that their infringement was massive and prolonged,” Boies said in his closing statement. “It is clear that SAP’s board and top executives expected it would be worth billions of dollars.” And just because SAP wasn’t able to generate that kind of value from Oracle’s pilfered IP, doesn’t mean it shouldn’t pay full fare for its infringement. “They took it and they have to pay for it regardless of whether they did well or didn’t do well using it.”

But SAP would rather not pay what it describes as a poorly caluclated “bonanza” award. “This case comes down to what is the best measure of compensation,” SAP attorney Robert Mittelstaedt argued. “Oracle’s [proposed damages] are based on guesswork,” while SAP’s are “based on reality.”

And evidently factoring “reality” into the equation cuts a hell of a lot of fat off the damages award at issue here. Because Mittelstaedt says SAP feels it owes Oracle just $28 million, which is, remarkably, even less than the $40.6 million its high-paid damages expert suggested.

PREVIOUSLY:

• LOLCatz: Safra on The Stand Again in Oracle-SAP Trial
• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

“[Their offer] doesn’t value our intellectual property at all,” she said, adding that TomorrowNow’s infringement encompassed more than just support documentation. “Yes, there were documents and help guides and things like that, but there was also the software itself–probably millions of lines of code, which is what the products really are….And we spend billions a year on R&D. This is a business where intellectual property is worth billions.”

Greg Lanier, a Jones Day attorney representing SAP, pressed her on that point insisting that Oracle isn’t owed such a large damages award because the value that the company lost to TomorrowKnow’s infringement is that “Oracle doesn’t get the chance to sell that software to someone else.”

But Catz wasn’t having any of it.

“You know, if Warner Brothers had a little subsidiary that copied Disney’s entire library and started selling it for $2 a copy, and they got caught and then offered to give Disney back half of what they made, is Disney’s library only worth $50?” she asked. “I mean, really. It’s valuable. The fact that it was copied doesn’t change that it’s valuable.”

Lanier quickly dismissed Catz’s point as a “colorful analogy,” reminding her that there are only 358 lost customers at issue in this case. Hard to imagine that such a “colorful analogy” in an otherwise tedious enterprise software case didn’t resonate with the jury, though.

Closing arguments in the case begin on Monday, with jury deliberations to follow.

PREVIOUSLY:

• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Indeed, speaking to reporters in the courtroom hallway this morning, Boies said that the evidence Oracle presented during the trial proved that Apotheker had knowledge of the copyright infringement scheme at issue in the case. “The testimony and evidence prove that Mr. Apotheker oversaw the copyright infringement scheme,” Boies said. “We did not show the 2 year old video deposition because it was taken before SAP stipulated to liability.”

Of course if Apotheker was as pivotal a figure as Boies maintains, one would think that there would at least be some content in his video deposition worth showing the jury. Certainly, that’s the view of SAP, which continues to maintain that Oracle’s repeated shots at Apotheker are more about the PR trial being conducted outside the courtroom than anything else.

“Today’s proceedings focused on the damages, and we remain confident that we have demonstrated a clear case for fair compensation to Oracle for the limited operations of TomorrowNow,” an SAP spokesperson said in a statement. “We trust now in the jury to bring this matter to an appropriate conclusion.”

HP has not yet commented on Boies’s remarks. The company reports earnings next week, and Oracle would obviously not be unhappy if any of this legal unpleasantness happened to lodge in investors’ minds.

UPDATE: Here’s HP’s official comment: “Oracle’s current stance is clear proof that they have been trying to harass Léo and interfere with his work at HP. As HP has said repeatedly, Oracle had ample opportunity to question Léo in the two years after he gave a full-day deposition. Léo was never asked to give an additional deposition. As HP and SAP have noted, Oracle chose not to include Leo as a live trial witness until after he was named CEO of HP. Léo had a limited role in the matter.”

PREVIOUSLY:

• Plattner and White No-Shows at Oracle-SAP Trial
• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Then it’s on to closing arguments, now scheduled for Monday, and finally deliberation. Odd to think that the case has reached this point with so few SAP board members actually testifying live in court. Looking over the final witness list for the trial reveals a number of noteworthy no-shows (beyond Hewlett-Packard CEO Léo Apotheker): Former SAP CEO Henning Kagermann, COO and board member Gerhard Oswald, co-founder and board chairman Hasso Plattner, and, most interestingly, CFO Mark White, SAP’s designated corporate representative for the trial and the guy tapped by its board to clean up the TomorrowNow mess.

Why didn’t SAP put them on the stand? Perhaps it’s because Werner Brandt and SAP co-Chief Executive Officer Bill McDermott, the only board members to take the stand, fared so poorly there.

Or perhaps it’s simply because of the way the trial has played out. “We’ve said from the start that our focus is on damages, that we are interested in resolution of this dispute and determining a reasonable number for damages, and putting the matter behind us,” an SAP spokesperson told me. “The witnesses we call support that focus. Please keep in mind that there were 73 names on the witness list when it was submitted. Since that list was submitted, the scope of the trial has been narrowed considerably and the length of the trial has been shortened.”

UPDATE: I’m told Kagermann was prepared to testify live, but did not due to time constraints. His video deposition was played instead.

PREVIOUSLY:

• Damages Expert to SAP: You Owe Me $14 Million and Oracle Four Times That
• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

But SAP damages expert Stephen Clarke argues it shouldn’t be more than $40.6 million.

Which is ironic considering SAP paid Clarke’s firm $14 million in fees to determine how much the company owed Oracle for infringing its IP. That’s more than 25 percent of the sum Clarke ultimately settled on (and $10 million more than the fees Oracle’s expert collected for his testimony).

But, according to Clarke, calculating damages accurately requires a certain detached objectivity and evidently it comes at a price. “There’s no anger or punishment allowed,” Clarke said Tuesday. “What happened as a result of that infringement is what matters. The only way to do that is focus on the actual number of contracts at issue here.”

And that number is just 358, well shy of the “thousands” of contracts SAP hoped to win away from Oracle.

Too bad there’s no dollar value on SAP co-CEO Bill McDermott’s apology to Oracle yesterday.

Oracle’s cross-examination of Clarke is expected to continue into Thursday, after which SAP will likely show a bit of testimonial footage and rest its case. Presumably that will be followed by some rebuttal witnesses from Oracle on Friday and closing arguments sometime the following week.

PREVIOUSLY:

• Oracle, SAP and the Apotheker Sideshow
• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

Why is Oracle so intent on putting former SAP CEO and new HP chief Léo Apotheker on the stand in the trial that will determine damages in Oracle’s long-running IP battle with its German rival?

SAP insists it’s to create a “PR sideshow”–which is true to an extent. But sometimes there’s more to a sideshow than meets the eye. Which is not to say that some nefarious scheme lies at the heart of all this, just that there is a lot of subtext to make sense of in this case. And it’s being written from two very different views of how damages should be calculated and how important Apotheker is as a variable in that calculation.

SAP’s view is that now that it has stipulated to liability, damages should be determined according to the actual number of contracts won by TomorrowNow and their value–not according to the number of contracts it hoped to win.

Oracle’s view is that damages should be determined by value of the intellectual property stolen from it and SAP’s ambitions for it. And while SAP’s stipulation to liability prevents Oracle from introducing evidence on liability, it leaves it free to introduce evidence for “context” on damages.

And that’s where Apotheker comes in.

According to evidence presented in the case, Apotheker chaired the launch of the Safe Passage program, of which the TomorrowNow acquisition was one part. And in his depositions, former SAP board member Shai Agassi clearly identified Apotheker as having some responsibility for TomorrowNow post acquisition, along with Gerd Oswald.

“I was the guy who led the the evaluation [of TomorrowNow] with Werner Brandt, who managed the acquisition teams at the time,” Agassi said. “The day of the acquisition, it was basically moved to Gerd Oswald, and the sales effort was moved over to Apotheker. So Safe Passage was managed by Apotheker and Oswald.”

Add to this the fact that Apotheker reported on TomorrowNow and the Safe Passage program in SAP earnings calls and was the only senior SAP exec quoted in a company release touting the program’s success, and it seems reasonable to expect that he might be able to provide some of the “context” Oracle is looking for (click document below to enlarge). One could argue that his expectations and forecasts for the program’s success speak directly to Oracle’s damages.

Or one could argue, as SAP and HP do, that his involvement was incidental and that he had no responsibility for TomorrowNow’s day-to-day operations and hence no knowledge of its transgressions.

But unless he testifies under oath, we’ll never know who’s right. And with Apotheker quietly going about his business at an undisclosed location, it’s looking like that’s how things will end up.

PREVIOUSLY:

• Better Late: SAP Co-CEO Apologizes for Oracle IP Theft
• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

“Has SAP ever apologized?” Boies asked. “Would you like to do so now?”

McDermott’s reply, “I am sorry to Oracle.”

As I said, an uncomfortable moment–and evidently one of many. Boies subsequently asked McDermott if SAP had ever disciplined anyone at TomorrowNow for its misdeeds. McDermott said it hadn’t. “We were focused on a resolution with Oracle,” he said. “It’s a matter of priorities.” To which Boies replied, “I don’t mean any disrespect, but what is taking so long?”

To be fair, McDermott did offer some testimony supportive of SAP, noting that TomorrowNow didn’t generate a lot of software sales. “Not only was it not a big driver of software sales, it wasn’t a very successful [concept],” he said.

Maybe that’s why it took so many years for SAP to apologize.

PREVIOUSLY:

• SAP Co-CEO Expected to Testify in Oracle Trial Today
• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

[Image credit: Someecards]

SAP tapped McDermott as co-CEO earlier this year, but he’s been on the company’s executive board since 2008 and was serving as CEO of SAP America when SAP acquired TomorrowNow. Ironically, one of his first acts as co-CEO was to scrap an internal program examining SAP’s corporate values.

“Companies that are too internally focused are sick,” McDermott said at the time. “There’s nothing healthy about being obsessed with your own internal nonsense. If there was a project that built bureaucracy into the company or required people to think about our internal stuff, we’ve killed those projects.”

PREVIOUSLY:

• HP to Oracle: Leave Léo Alone
• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO

“As HP has said repeatedly, Oracle had ample opportunity to question Léo in the two years after he gave a full-day deposition,” a spokesperson told me Friday evening. “Léo was never asked to give an additional deposition. As HP and SAP have noted, Oracle chose not to include Léo as a live trial witness until after he was named CEO of HP. Léo had a limited role in the matter and Oracle’s current stance is clear proof that they have been trying to harass Léo and interfere with his work at HP.”

Point meet counterpoint. That said, Oracle likely would have been most interested in deposing Apotherker a second time after SAP’s stipulation to liability for contributory infringement. And that didn’t occur until October 29, 2010.

PREVIOUSLY:

• Oracle Still Hoping to Snag HP’s Apotheker for SAP Trial
• HP CEO to Oracle: Here’s Looking at You, Kid–Suntory Time!
• Ellison to Self: Damn, Damn. I Knew I Should Have Said $4.5 Billion
• SAP Attorney: Board Knew TomorrowNow Was Infringing at Time of Acquisition
• Oracle Co-President on SAP’s Damages Offer: “It’s Crazy”
• Oracle Enlists Process Servers, Not PIs, to Find HP CEO
• Oracle-SAP Trial: Ellison Swaps Katana for Poison Darts
• Objection: Mr. Ellison Is Referring to the Defendant as “Choleric of Temper” Again
• Oracle Lands Early Shots in SAP Trial
• Your Honor, We Object to Mr. Ellison’s Repeated Use of the Term “Slimy Weasels”
• Oracle to HP CEO: Chicken!
• Oracle Vs. SAP: We Got a Right to Pick a Little Fight–Bonanza!
• SAP’s Tab in Oracle Case: $120 Million and Counting
• Gag Order Denied in Oracle, SAP Trial
• Ellison Taunts HP CEO a Second Time
• SAP to Ellison: Save the Drama for Your Mama
• Ellison to HP CEO: “Warrior, Come Out to Plaaeeay!
• SAP: Please Gag Oracle
• HP Scandal Sucks in New York Times Columnist Over Conflict of Interest
• Welch to HP Board: You Don’t Know Jack!
• Insiders Criticize Ellison For HP CEO Slam
• Was Apotheker HP’s First Choice of CEO?
• HP Names Ex-SAP Chief Apotheker as CEO