[Info-vax] Trial Phase 2 (was Re: HP wins Oracle Itanium case)

[Keith Parris]

On 8/1/2012 3:52 PM, Stephen Hoffman wrote:
> "HP wins judgement in Itanium suit against Oracle

Oracle has filed its objection to the court's Proposed Statement of 
Decision: 
http://www.scefiling.org/filingdocs/14198/53924/endorse_86221_OraclexsxObjectionsxtoxCourtxsxProposedxSOD.pdf

Most of it seems to whining that things didn't go its way, and that the 
court took HP's side. For example:

"Like HP, Oracle submitted 30 pages of proposed findings. ... The Court 
chose to work off of HP’s proposed findings instead, adopted the vast 
majority of them verbatim, and supplemented that with additional 
content. By and large, the Court did not specifically address Oracle’s 
proposed findings. A few appear in the Proposed Statement of Decision, 
but for the most part the Court simply edited and added to HP’s proposed 
findings and therefore did not say anything about Oracle’s."

"The Court took the form of proposed statement of decision that HP 
drafted for its declaratory relief cause of action under the Hurd 
agreement and modified it, explicitly applying it to “both the breach of 
contract and promissory estoppel causes of action brought by HP.”"

Some of it is threats:

"Oracle will appeal this decision. Ultimately this case will be decided 
in the appellate courts."

And there seems to be some fear that if they don't immediately 
recommence porting for Itanium they may be in contempt of court:

"The Court’s holding ... that Oracle is obligated “to continue to offer 
its product suite on HP’s Itanium-based server platforms” and “Oracle is 
required to port its products to HP’s Itanium-based servers” — appears 
to be an operative mandate."

"If consistency with the partnership leaves Oracle without any 
discretion to cease porting, then the instant any Itanium port of any 
part of the “product suite” is not delivered (an inevitability unless 
Oracle recommences porting), Oracle will be in breach."

"Oracle believes that the Court should clarify now whether it intends 
the PSOD to order Oracle to recommence porting to Itanium."

But Oracle says they're willing to do that, apparently in hopes of 
escaping a Phase 2 of this trial (which awards damages). But if Phase 2 
proceeds, they threaten that in that case they _won't_ recommence porting:

"In other words, Oracle will recommence porting its software to Itanium 
immediately on the terms the Court orders. This would give HP the relief 
it has always sought in this case while ensuring Oracle an immediate 
appeal." ... "Otherwise the parties and the Court will expend many 
months and resources on a Phase 2 trial that may not be needed, and HP 
will be months from receiving a porting order from this Court (which 
will then be stayed pending appeal)."

And I found this piece very interesting:

"Oracle also objects to and requests clarification and findings 
regarding the Court’s reference to “HP’s Itanium-based server platforms” 
in paragraphs 2-5, in that it is unclear what the Court means by that 
term, specifically as to the operating systems covered."

As Oracle doesn't run on NonStop, and Windows and Red Hat Linux already 
dropped support, OpenVMS (and maybe SuSE Linux, which still supports 
Itanium, but of course isn't an HP operating system) seem to be the only 
other Itanium operating systems conceivably involved (other than HP-UX, 
of course). Is Oracle here trying to weasel out of any obligation to 
continue porting Oracle Server (and developing Oracle Rdb) for OpenVMS 
on Itanium?

It's also apparently trying to weasel out of commitments if it can, 
based on wording and semantics:
"Oracle also objects to and requests clarification and findings 
regarding the Court’s references to “continue to offer” and “port,” in 
that it is unclear whether the Court is reading “continue to offer” to 
mean “continue to develop” or “continue to port”."

So Oracle would like to continue to sell ("offer"), but not do any 
development on, or porting to, Itanium. But isn't that just what they're 
already trying to do? Nice try. :-)

The Pre-Trial Conference for Phase 2 of the trial is scheduled for 
August 29, 2012, with the Joint Pre-Trial Conference Statement to be 
filed by August 24.