Apotheker could testify in TomorrowNow trial

Oracle's lawyers have said that former SAP chief executive Léo Apotheker will testify during the TomorrowNow trial to determine how much SAP should pay Oracle for the theft of its software.

The firm's attorney, Geoffrey Howard, said in a Reuters report that Apotheker will testify in a move that could mean Oracle uses a sworn deposition given by the new HP chief executive in 2008 during the trial.

SAP last week took the decision not to contest the charges in a move legal experts said would prevent key executives taking the stand, but Oracle is clearly keen to try and get as much mileage as it can from the statement given by Apotheker.

Larry Ellison, Oracle's chief executive, will no doubt be hoping that, if Apotheker does testify, either in person or through his sworn deposition, it proves what he has said all along that Apotheker was fully aware of the theft when it took place.

"A major portion of this theft occurred while Mr Apotheker was chief executive of SAP," Ellison said in a statement in which he also suggested that HP, where Apotheker is now chief executive, would keep him "far away" from its headquarters to stop him being subpoenaed.

HP said that it had no knowledge of whether or not Apotheker would be asked to testify.

The trial centres on the damages that SAP should pay Oracle for the theft of code carried out by TomorrowNow, which SAP bought in 2005 for $10m.

Oracle's lawyers did not specify a figure, but said that the damages run to billions of dollars, while SAP's lawyers argue that a figure of around $40m (£ 24m) is more accurate.

"They want a windfall. They want a bonanza," said SAP attorney Robert Mittelstaedt, adding that Oracle's claims are "out of proportion" with the actual damage sustained.

The opening exchanges mark the start of a trial that will no doubt see SAP, Oracle and HP trading more blows as the case continues.