Oracle wants seal busted on HP's Itanium suit

HP disagrees to agree

Oracle has called on a California court to publicly reveal the sealed portions of the lawsuit HP brought against the software company over Intel's Itanium processor.

HP says its happy to make the documents public, but there's a caveat involving the settlement agreement between the two companies over ex–HP CEO Mark Hurd. Even when they agree, these two disagree.

Oracle started this row with HP at the end of March when it said it would cease development on future versions of its database, middleware, and application software on Intel's Itanium server chip. Itanium is important to HP because it's the only processor that supports the current versions of the company's HP-UX Unix, OpenVMS, and NonStop operating systems.

HP-UX is a particularly touchy area because it's a popular platform for supporting ERP applications at midrange and enterprise customers, and those applications are often underpinned by an Oracle database. A substantial portion of HP's profits in the system racket are derived from hardware, software, and services sold in conjunction with these Itanium-based Integrity servers.

PR tit for PR tat

Since Oracle's announcement, the two companies have waged a war of PR statements. According to Oracle, Intel has committed to the Xeon chip as its long-term server platform, and there's no future for Itanium beyond the "Kittson" processors due in 2014 or so. Oracle claims that HP knows this and is not being truthful about it. HP has countered that it has a ten-year plan to support its operating systems on Itanium processors.

HP has been waiting, in vain, for Intel to say there is something out there beyond the Kittson Itaniums. (Intel has hinted at this unofficially to customers, but has not said so publicly).

On June 8, HP sent Oracle co-president Safra Catz, a letter of demand that basically said that Oracle was in violation of contractual agreements between the two parties. Oracle ignored this, and a week later, HP took Oracle to court.

Once again, Oracle contended that HP knew that the Itanium was going to get the axe and asked for Oracle to commit to future software development on the Itanium chip as part of its settlement agreement with Oracle over that company's hiring of former HP CEO and chairman, Mark Hurd.

Unseal those docs!

As part of that lawsuit, HP asked the court to seal parts of the document, including the first three of the ten claims HP is making in its suit. The charges, as well as the remedies that HP is seeking to rectify these claims, were blacked out. This makes analyzing exactly what the problem is a bit difficult for everyone but the lawyers and the judges.

On June 29, Oracle filed a motion saying that the lawsuit by HP was "an abuse of the judicial process - a publicity stunt in a broader campaign to lay the blame on Oracle for the disruption that will occur when HP's Itanium-based server business inevitably comes to an end."

In its motion, Oracle says that it is perfectly happy to unseal the documents and allow for the redacted material to be shown the light of day. Oracle also provided the language that HP tried to slip into the Hurd settlement agreement in September 2010, and this may shed some light on the case:

Oracle will continue to support all ongoing versions of HP-UX with Oracle’s relevant database, middleware and application products with the availability, marketing and pricing in competitive terms that Oracle has provided HP for the past five years.

Oracle will continue to provide access to the Java technology and tools such that HP can continue to support its operating systems (e.g., HP-UX, OpenVMS, Nonstop) in a manner similar to the way it does today.

Oracle agrees to continue to provide Solaris for HP's x86 platforms in a manner similar to what it provides HP today. Oracle agrees to continue to purchase HP server hardware for internal use at a rate similar to what Oracle purchases today.

This passage was the subject of two conversations between Catz and Ann Livermore, formerly in charge of HP's Enterprise Business and now an HP director. Oracle rejected the addition of this passage to the contract, but it did agree to add a "let's get back to business" commitment, which appears to be the heart of the lawsuit that HP is bringing against Oracle. And once again, this provision is blacked out in the Oracle motion, so we cannot see what it says.

Port deal

Oracle does talk indirectly about it, however, and it says that HP and Oracle were correcting matters related to Hurd now working for the competition and trying to restore their partnership, but did not in any way "change its decades old practice of retaining complete discretion to make decisions about its own development roadmap."

Oracle says in its June 29 motion that there was an Itanium-porting agreement between itself and HP that was executed in 2006 and amended in 2007 to port Oracle's E-Business Suite to HP-UX, and that HP paid Oracle millions of dollars in porting and maintenance fees to do so. The agreement does not cover other Oracle suites or Oracle databases and middleware.

The software giant's lawyers argue that HP does not meet the legal requirements for having documents sealed, but says there is a more important issue at work.

"The larger point, however, is that HP should not be allowed to abuse the seal to hide the truth underlying this case. At the end of the day this case is all about how Oracle told the truth and HP is doing everything possible to suppress it. It is the last case in which anything should be sealed unnecessarily, but especially the core facts about what contracts HP and Oracle actually have, and what HP’s and Intel’s Itanium plans actually are. Putting the truth on the public record won’t hurt anyone. Hiding it has and most certainly will."

HP in shock agreement

On July 7, HP's lawyers fired back a reply to Oracle's motion, saying that confidentiality agreements in the Hurd settlement from September 2010 precluded HP from divulging this redacted material and keeping any related documents under seal. "Oracle argues in its Opposition that by moving to file its complaint under seal HP is trying to suppress the truth about the basis for its claims against Oracle," HP's lawyers write.

"Nothing could be further from the truth. There is not a single word in HP’s complaint that HP is not willing – indeed eager – to make public. As Oracle well knows, HP filed its complaint with references to the Settlement Agreement redacted because at the insistence of all the parties – Oracle, HP and Hurd – the agreement contains a provision that precludes the parties from disclosing the terms of the agreement for any purpose."

HP is willing to make the entire suit public – provided that Oracle agrees that the provision no longer applies. "Now that HP understands Oracle’s position, HP is more than willing to make the complaint public, and to move forward with the understanding that confidentiality has been waived," HP continued.

Yesterday afternoon, in response to HP's reply, Oracle issued the following statement: "In a legal filing today, HP said it is more than willing to make its complaint against Oracle public. But HP is not willing to make public the settlement agreement upon which the complaint is based. Oracle is not interested in withholding anything from the public. The complaint and the settlement agreement should be fully disclosed immediately."

So, there you have it, Honorable James Kleinberg of the California Superior Court. Show us what they got. ®

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