Oracle case winds down without HP CEO

OAKLAND, Calif., Nov 12 (Reuters) - Oracle Corp plans to rest its high profile copyright case against SAP AG next week without the testimony of Hewlett Packard Co CEO Leo Apotheker, attorneys for the company said on Friday.

However, Oracle attorney David Boies said they still may play Apotheker's videotaped deposition during its rebuttal case on the last day of trial — if they are unable to serve him with a subpoena.

SAP and Oracle, which dominate the global market for software that helps businesses run more efficiently, are battling in court to determine the amount of damages for software theft by SAP.

SAP has accepted liability for its TomorrowNow subsidiary having wrongfully downloaded thousands of Oracle files, but argues it owes tens of millions — not billions — of dollars in compensation.

Apotheker's credibility — and his ability to effectively lead HP, the world's largest technology company by revenue — may come under attack if he testifies.

Oracle has said that Apotheker has evaded its attempts to subpoena him since he began his job as CEO of HP on Nov. 1, and even hired professional investigators to try to track him down.

In recent weeks, Oracle CEO Larry Ellison has said he has evidence Apotheker was complicit in SAP's improper downloading of Oracle's software. However, Ellison did not discuss Apotheker when he took the stand this week.

On Friday, Boies again called Apotheker "a very important witness". Other SAP officials testified that Apotheker was a member of the company's executive board and fully supported the TomorrowNow acquisition, Boies said.

"We think it is very important that Mr. Apotheker testify now, as a live witness in court, to explain his and SAP's conduct," Boies said.


SAP spokesman William Wohl called the Apotheker issue a "sideshow" that had little to do with the damages at issue.

HP spokeswoman Mylene Mangalindan said Oracle did not want Apotheker as a live witness until after he was appointed to his current job.

"Leo had a limited role in the matter and Oracle's current stance is clear proof that they have been trying to harass Leo and interfere with his work at HP," she said.

Testimony continued on Friday in U.S. District Court in Oakland, California. Kevin Mandia, CEO of computer forensics firm Mandiant, testified that downloads of materials by TomorrowNow increased after January 2005, when SAP purchased the company.

Mandia, an expert witness for Oracle, said that TomorrowNow built an automated computer programme to better facilitate downloads after it was acquired by SAP.

On cross examination by SAP, Mandia acknowledged that at least some of the Oracle software found on TomorrowNow's systems could have come from licensed sources.

Oracle attorneys also played a short video clip of former SAP CEO Henning Kagermann's deposition. Through a German translator, Kagermann acknowledged that some of TomorrowNow's downloads were "inappropriate".

SAP is expected to begin presenting its case on Monday.


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