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Oracle-SAP Case Goes to the Jury

The three-week trial ended without Oracle getting former SAP CEO Léo Apotheker, now CEO of HP, on the stand to testify

A jury of eight men and women in Oakland, California, began deliberating the question of how much SAP should pay Oracle for copyright infringement Monday afternoon.

It could come to a verdict before Thanksgiving this Thursday, but surely no later than next week.

Oracle asked the jury for at least $1.7 billion on the theory that SAP should pay for the 5TB of Oracle software, fixes, updates and documentation that its now-defunct third-party maintenance arm TomorrowNow pilfered. Oracle CEO Larry Ellison put the hypothetical licensing figure at $4 billion, which is more than SAP has in the bank.

Calling Oracle's demands "overreaching" and "guesswork," SAP told the jury the number should be more like $28 million based on the actual profits it calculates Oracle lost plus the profits SAP made, but no more than $40 million.

In his closing statement, SAP's lawyer reportedly warned the jury that "They're asking for far more than they're entitled to, and they're trying to trick you in order to get it."

Either of SAP's figures would be a fraction of the $120 million it has reportedly agreed to pay Oracle's lawyers. It's only got a total of $160 reserved for the case.

The three-week trial ended without Oracle getting former SAP CEO Léo Apotheker, now CEO of HP, on the stand to testify or without playing his two-year-old videotaped deposition for the jury. Oracle wasn't able to serve a subpoena on the elusive Belgian, who only appeared at HP headquarters Monday for the company's stronger-than-expected earnings call after the case went to the jury.

Oracle claims that Apotheker and SAP's board knew all about TomorrowNow's illegal downloads and expected to make billions off of them by migrating Oracle's PeopleSoft, JD Edwards and Siebel customers to SAP software.

SAP's profit calculations were made by an expert witness it hired who claimed to tease out only what SAP made off the infringement. SAP actually picked up about $700 million from Oracle customers that it claims Oracle would have lost anyway.

Oracle argued that just because SAP wasn't as successful as it hoped doesn't mean SAP shouldn't have to pay the cost of a license for the software TomorrowNow stole. "When they take it, they own it, and they have to pay for it," Oracle's lawyer David Boies reportedly said, "regardless of whether they did well or didn't do well."

More Stories By Maureen O'Gara

Maureen O'Gara the most read technology reporter for the past 20 years, is the Cloud Computing and Virtualization News Desk editor of SYS-CON Media. She is the publisher of famous "Billygrams" and the editor-in-chief of "Client/Server News" for more than a decade. One of the most respected technology reporters in the business, Maureen can be reached by email at maureen(at) or paperboy(at), and by phone at 516 759-7025. Twitter: @MaureenOGara

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