Wednesday, January 30, 2008

Oracle wants to broaden lawsuit against SAP and TomorrowNow

Oracle indicated yesterday that it will ask the court for more time in the discovery phase of its lawsuit against SAP and its subsidiary TomorrowNow (TN) for theft of intellectual property. The reason: Oracle claims that the discovery performed to date has "uncovered a broader program of copyright infringement that is entirely different from the scheme alleged in the current complaint."

Oracle's charges
This development shows up in a Supplemental Joint Case Management Conference Statement filed with the court. "Based on this evidence, Oracle is gathering additional facts and analyzing the need to file an amended complaint that will encompass these new claims."

In addition, Oracle claims that SAP and TomorrowNow have not complied with their discovery obligations, alleging that the defendants have not produced documents that Oracle has requested, that SAP has refused to produce documents related the US Department of Justice investigation of SAP's conduct toward Oracle.

Oracle is also claiming that SAP personnel outside of TN were "substantially involved in TomorrowNow's downloading and other activities, and particularly in sales and marketing of services based on materials improperly taken from Oracle." Oracle claims that "as a result of this discovery, Oracle has identified more than five heavily-involved SAP AG and SAP America personnel whose depositions it will need to take.

If Oracle can prove that last claim, it will contradict SAP's assertion that there was a Chinese Wall between SAP and TN that prevented SAP from having access to Oracle's intellectual property. It would also substantially expand the scope of the lawsuit and potential damages.

SAP's response
In SAP's response, it claims that Oracle has "barely used any of the depositions permitted by the court" and that "Oracle will have taken only five depositions, at most, before the supplemental case management conference." SAP also complains that Oracle "has not provided even the barest description of its supposed new claims."

SAP further argues that Oracle has not provided "such basic information as the alleged copyrighted works at issue, financial information (such as Oracle's profit margin on services) underlying its unspecified damage claim, and about Oracle's dealings with similarly situated third party service providers other than TomorrowNow."

I'm sure there are many observers that would be very interested as well in learning about "Oracle's profit margin on services."

This lawsuit is moving forward, in spite of SAP's latest move to list TomorrowNow as a discontinued operation, and its stated desire to sell the unit. It will continue to be a distraction and an embarrassment to SAP, especially if Oracle is successful in extending the time and scope of its discovery.

Related posts
SAP lists TomorrowNow as a discontinued operation
TomorrowNow and the future of third-party support providers
SAP considering sale of TomorrowNow
SAP admits wrongdoing in Oracle lawsuit
Oracle now charges SAP with copyright violation
Latest on the Oracle/SAP lawsuit
Oracle/SAP lawsuit: view from Rimini Street
SAP subject to criminal charges?
Oracle sues SAP and its TomorrowNow unit

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