Maureen O'Gara

Wednesday, November 10, 2010 – Told ya so. Told ya so. Told ya HP CEO Léo Apotheker was in the Far East way beyond the reach of Oracle’s process servers.

Reuters said late Tuesday that he gave an interview to the Nikkei business daily last Friday that didn’t appear in print until Saturday and then only in Japanese. The story said he was in Tokyo. Of course he could be long gone by now and Reuters said HP again refused to disclose his current location.

Both HP and Léo’s own lawyers have refused to accept the subpoena Oracle’s trying to serve him to get him into court to testify in its great copyright infringement case against SAP, Léo’s old stomping ground.

Oracle means to connect him directly to the pilfering of its software that went on at SAP’s third-party maintenance arm TomorrowNow.

Like Oracle’s famous lawyer David Boies reportedly told the press Monday, “The embarrassment of avoiding trial is less than the embarrassment of testifying.”

Boies is also quoted as saying, “We are trying hard to find him and he’s trying real hard not to let us find him. We’ve got to find him…”

Oracle is supposed to have private investigators out looking for Apotheker. Boies didn’t deny it. But they have to catch him in California unless Oracle goes to the judge and asks her to make HP give him the subpoena, a possibility Bloomberg raised after it talked to Georgene Vairo, a professor at Loyola Law School in Los Angeles.

Meanwhile, the judge issued a so-called minute order Monday barring Oracle from including lost “cross-sell” and “up-sell” opportunities in its estimate of damages.

SAP calculates that shaves $500 million off of Oracle’s claims of better than $2 billion. According to Computerworld, SAP told the press Tuesday that “The ruling of the court has an immediate and demonstrable impact on Oracle’s damages presentation, reducing the total by $500 million from $2.2 billion down to $1.6 billion.”

Oracle argued in a filing Friday that throwing out its “cross-sell” and “up- sell” evidence this late in the day would “constitute reversible error” of law. It claims “the exact forward-looking expectations of up-sell and cross- sell opportunities” must be considered as a matter of law in valuing any hypothetical license so evidently we have not heard the last of this.

Oracle is using the hypothetical license device as a basis of its claims. Oracle CEO Larry Ellison testified Monday that if SAP had negotiated a license for all the software it admits it poached it would have cost $4 billion. SAP wants to limit Oracle’s claims to the profits it lost and that SAP made. It’s put the figure at $40 million.