That’s the one it said in October would be ready sometime in the first half. Only nobody believed it meant early in the first half. Heck, it’s not even clear anybody thought Oracle could make the first half at all and it probably couldn’t have met so early a date if it hadn’t been secretly closeted for months with Cloudera.

It’s using Cloudera’s version of Hadoop in the thing rather than lose time dicking around rolling its own.

Cloudera is the oldest, most established of the Hadoop start-ups whose ranks now include MapR (tight with EMC, its Greenplum database and the EMC Data Computing Appliance) and Hortonworks (buddies with Microsoft and SQL Server 2012) and it’s assumed to have more customers and more experience than anybody else.

In response John Schroeder, CEO and co-founder of MapR, said, “It’s ironic that the world’s largest database vendor would enter the Big Data market by being a hardware provider and partnering for software. It appears they are taking a page from their Linux playbook where they partner until prepared to support their own distribution. Unlike Linux, Hadoop requires innovations in reliability, performance and ease of use to drive adoption like those brought to market by MapR.”

Observers say Oracle’s use of Cloudera shows it’s serious. Big Data is supposed to be a $70 billion industry growing at maybe 20% a year and Oracle wants more than its fair share so it’s not letting any grass grow under its feet.

To prove it’s serious, Oracle is low-balling the highly engineered system. Rather than charge millions like it does for its Exadata, Exalogic and Exalytics appliances, Oracle’s Big Data Appliance will go for a mere $450,000 a rack with maintenance on both the hardware and software running only 12% a year. The price is a third less than expected.

For the money customers will get a full rack of 18 Sun Fire x86 servers with 216 CPU cores, 864GB main memory, 648TB of raw disk storage, 40 Gb/s InfiniBand internal connectivity and 10 Gb/s Ethernet connectivity, perfectly sized for the greatest number of customers.

Users also get Cloudera’s open source Distribution Including Apache Hadoop (CDH) and Cloudera Manager software, Cloudera’s Google Big Table-ish HBase, an open source distribution of R, the programming language, the Community Edition of Oracle’s NoSQL Database, Oracle’s HotSpot Java Virtual Machine and Oracle Linux, the Oracle fork of Red Hat. The widgetry can be used in multiple ways.

Oracle and Cloudera are going to split support, with Cloudera getting the hard software questions.

Oracle’s also got a bunch of separately priced connectors so users can integrate data stored in the CDH Hadoop Distributed File System (HDFS) or Oracle NoSQL Database with Oracle Database 11g. The four connectors cost $2,000 per server processor.

Betcha Oracle figures it can up-sell Big Data Appliance users on Exadata, Exalogic and Exalytics since everything’s tightly integrated.

It’s also possible that Oracle might want to buy Cloudera eventually depending on how things go and how its vision of itself as a database company morphs. Currently they’re bound together by a non-exclusive multi-year alliance.

A huge win for Cloudera, the start-up is reveling in the validation it’s getting from Oracle and all the feet Oracle can put on the street. It can probably anticipate an uptick in its consulting and training business. It also figures the Oracle ecosystem will produce new tools, applications, systems and services in support the CDH platform.

Oracle in its conference call never once said it was, claiming instead that Q2 was a one-off event and that “short of a global meltdown” Q3 “won’t be a repeat.”

Still, the news ricocheted through high-tech leaving the Nasdaq a blood-red mess. Oracle itself is now down about 13%.

Watchers are still trying to figure out what happened. Obviously there was a struggle to close deals in Q2, which ended with the hateful November. Ellison, Catz and Hurd are three pretty slick articles, still it’s hard to believe that the company didn’t already have the management controls in place to monitor last-minute approvals but that’s what Catz said. Approvals came through – lurchingly and apparently with more, higher-up signatures than they used to need – and Oracle has had to figure out how to deal with that wrinkle going forward. Apparently any deals missed are expected to close this quarter.

Both its Q2 revenue and earnings were short of consensus. It reported earning 54 cents a share, up 6%, on revenues of $8.79 billion, up 2% year-over-year, when the Street thought it would do 57 cents on $9.23 billion. GAAP income was up 17% to $2.2 billion or 43 cents a share. Unfortunately Oracle had guided to revenue of $8.99 billion-$9.34 billion.

It said new licenses were up 2% to $2 billion when it had guided to an increase of 6%-16% and updates and product support was up 9% to $4 billion.

It’s supposedly not seeing a slowdown in Europe. It even said the US public sector was pretty good. CRM is supposed to be up close to 20%. Most of everything else, however, looks off. Currency also turned into a headwind.

Hardware was down 14% to $953 million – when it was supposed to be flat to down 5% – and that’s despite what Oracle CEO Larry Ellison said was accelerated sales of engineered systems.

According to him “Exadata growth was well over 100% compared to last year, and Exalogic grew more than 100% on a sequential basis. We shipped our first SPARC SuperCluster in Q2 and expect to begin deliveries of our Exalytics system and the Oracle Big Data Appliance in Q3.”

Evidently the product transition from the T3 to T4 Sparc chip was a hold-up since it requires a brand new system and people aren’t going to buy outdated equipment so late in the cycle. In addition, Oracle could only deliver a few SuperClusters since they only became available at the end of the quarter. But Hurd maintains that Oracle pipeline is as full as it’s ever been, with Exalogic ramping faster than the Exadata machine, something he’s said before.

Larry said 200 Exadata/logic machines were sold in Q2 and prophesized that 300 would be sold this quarter and 400 in Q4. By then they’ll be a billion-dollar business that he said will double next fiscal year. Bernstein ace analyst Toni Sacconaghi noticed that wasn’t quite as many as previously forecast and Ellison had to admit he was right. Oracle might not triple its installed base, maybe it’ll only be up 2.5x, Ellison said, but “It’s still spectacular.” Oracle cut the appliance projections from 2,000 to 1,000.

Oracle’s GAAP operating margin was 35%; its non-GAAP margin was 45%, which it’s pleased enough with, and it claims it should return to pre-Sun margins soon.

Oracle’s workforce was up 1,700 salesmen in the first half.

Co-president Mark Hurd said in a statement, “We believe that this increase in our field organization combined with innovative new products like Fusion Cloud ERP and Cloud CRM will enable solid organic growth in the second half of this year.”

Oracle exceeded estimates in the four previous quarters and it’s going to have tough compare this quarter because last year was sensational. It’s forecasting total revenues will be up 3%-7% this quarter. That would work out to somewhere between $9 billion and $9.42 billion. It said new software licenses would be flat to up 10% and hardware down 5% to 15%. Adjusted earning should be 56 cents-59 cents. The Street had it down for 58 cents on $9.46 billion.

To console investors Oracle said it could buy back another $5 billion worth of stock at some point.

It’s got $31 billion in the bank.

HP paired up with Microsoft earlier this year on the HP Enterprise Data Warehouse Appliance, which runs Microsoft’s SQL Server 2008 R2 Parallel Data Warehouse. This new HP Enterprise Database Consolidation Appliance for SQL Server is its transactional counterpart.

Microsoft describes it as the first out-of-box data consolidation widget good for rapid virtualized private cloud deployment with no software changes.

It should be out next month and is supposed to deploy new database instances in minutes, reduce operating costs by maybe 75%, simplify management, save floor space, energy and infrastructure, and ultimately handle thousands of database instances in a scalable virtualized private cloud environment.

It can ultimately fill 10 racks, up from an entry-level half-rack. A single rack offers 192 logical processors, 2TB of memory and 59TB of storage.

Microsoft claims zero downtime live migration, and real-time database VM load balancing as well as high availability.

Pricing has yet to be disclosed but the ROI should be in two years.

There’s also a new HP VirtualSystem for Microsoft, launched Tuesday based on the same architecture as HP’s all-in-one CloudSystem and optimized for virtualized Microsoft Hyper-V applications. It will eventually scale to 6,000 virtual machines and also go on sale in November.

It’s meant to consolidate Microsoft workloads such as SharePoint, Exchange and SQL Server and includes Microsoft System Center, HP Insights and HP Converged Infrastructure software.

The widgetry employs HP x86 server and BladeSystems, HP FlexFabric networking and Lefthand Networks arrays or 3PAR storage.

The pair is chasing primarily mid- to large accounts with the machine but it will also be proposed to small account against Dell’s vStart appliance that supports less than 100 VMs.

It’ll cost around $175,000 to start without the Microsoft software.

The VS1 model supports 750 VMs and VS2 is supposed to be good for 2,500. The VS1 widgetry involves two ProLiant machines with two six-core Xeons, 96GBs of memory, two 146GB disks and two 10GB Ethernet ports. The VS2 uses two-socket six-core Xeon BladeSystems each with 48GB of main memory and two 146GB disks, which should support 535 VMs to start and cost $425,000.

HP already has VirtualSystems that support 750-6,000 VMware VMs, but the reportedly cheaper Microsoft widgetry is supposed to compete with vBlock systems from the Cisco-EMC-VMware combine.

Next month HP plans to release Itanium-based HP-UX-run VirtualSystems for Superdome 2 to compensate for Oracle refusing to support Itanium anymore. They’re supposed to run CRM, ERP and financial apps. No pricing yet.

Untroubled by any inconsistency, Ellison basically shrugged and said, “Everyone’s got a cloud. We need a cloud.”

Users are meant to run Oracle’s cloud-ified Java-based Fusion Applications and BPEL-based Fusion Middleware, as-is Oracle databases and existing custom-built Java EE apps on a resource-intensive subscription-based Oracle-managed, -hosted and -supported single-tenant infrastructure that Oracle is building out of its own (Xen?) virtualized Sun hardware that will give them instant provisioning and elasticity on-demand.

Customers will be able to decide how big and how powerful their separate if standard virtual machines should be. No shared data stores here and, unlike other models, the VMs, not the apps, will be secure.

The Oracle Cloud is also supposed to be good for test and dev. The widgetry supports multiple Java IDEs, including Oracle JDeveloper, NetBeans and Eclipse.

Ellison claimed the Oracle Public Cloud is different from other public cloud because it’s “both a platform-as-a-service and applications-as-a-service.” And since it’s based on standards like Java, SQL and XML – not to mention, SQL, SOA, Groovy, Web Services et al – users should be able to interoperate with rival clouds such as Amazon as well as move back and forth to their own on-premise data center.

The Fusion Apps Oracle has in mind for users to run initially are Fusion CRM and Fusion Human Capital Management (HCM) integrated with a newfangled Chatter- or Facebook-style Social Network, suggesting that Oracle’s targeting Salesforce.com which it’s not compatible with.

Ellison called Salesforce the “roach motel of clouds” – the “ultimate vendor lock-in” – “you can check in, but you can’t check out” because of its proprietary APEX programming language. He also condemned it as inelastic and insecure because of its data-commingling multi-tenant architecture that was “state-of-the-art 15 years ago.”

Repeating a Salesforce mantra warning of “false clouds,” Ellison said, referring to standards, “That is such good advice. I could not have said it better myself.”

Note that Salesforce, which Ellison helped get off the ground, is threatening to have $2 billion in revenues this year.

And maybe because he was publicly critical of Larry’s keynote, a funny thing happened to Salesforce CEO and sometime drama queen Marc Benioff on the way to his own OpenWorld keyboard, which Saleforce paid a million dollars for.

Oracle moved it into a blind spot Thursday morning at the crack of dawn after a concert Wednesday night featuring Sting and Tom Petty so only party poopers would be up and out early, making the rescheduling tantamount to a cancellation. Oracle lamely claimed the shift was due “overwhelming attendance.” So Benioff moved his speech across the street to a restaurant in the St Regis because, as he tweeted, “The show must go on!”

Anyway, Oracle’s Social Network includes document sharing, information feeds and web conferencing.

Oracle claims its Public Cloud is the only public cloud to offer customers a “complete range of business applications and technology solutions, avoiding the problems of data and business process fragmentation when customers use multiple silo’d public clouds.”

Users will be able to run the same applications on-premise as well as in the cloud and purchase each service independently of the others. All Oracle Public Cloud services have a unified self-service user interface for provisioning, monitoring and managing all services.

It’s still unclear when Oracle Public Cloud will go live or what it will cost but it’s expected to cost more than Amazon.

Oracle also announced an Exalytics Business Intelligence Machine and a Linux-based Apache Hadoop Big Data Appliance using an Oracle NoSQL Database at OpenWorld.

The Exalytics box, which will run Oracle’s Times Ten and Essbase databases, is supposed to analyze quantities of unstructured and structured data stored in its terabyte of main memory at the “speed of thought,” instead of pulling it off slower disk drives.

The widgets should compete with HP and its new Autonomy acquisition, but more importantly with IBM and SAP.

See http://cloud.oracle.com.

Once it got the figure Google immediately started the legal wheels turning to try to get the estimate made by Oracle’s expert thrown out as “speculative and arbitrary,” full of “fundamental and disqualifying” legal errors before the case gets to trial on October 31 (Halloween, how perfect).

Google doesn’t want a whiff of his sealed “opening damages report” or his testimony getting anywhere near a jury because his conclusions “would prejudice Google.”

The five-page letter saying so that Google’s lawyers wrote to the presiding judge Monday is redacted so key numbers are blacked out but there’s enough substance left to see that Oracle wants a hefty chunk of Google’s mobile ad revenues plus compensation for fragmenting Java.

Apparently the estimate recalls that Microsoft paid Sun $900 million “to cover the risk of fragmentation to Java” when the two settled Sun’s antitrust charges years ago, suggesting what league everybody’s batting in.

The all-important royalty base that Boston University School of Management economics professor Iain Cockburn used has been censored but not the 50% royalty rate he applies against it.

There’s also the little matter of willful infringement and treble damages so 50% times three equals 150% and, yes, that can happen.

The letter confirms rumors that Google might have cut a deal with Sun before Oracle came on the scene but rejected the terms offered. The lawyers say that deal “would have included far more than the patents-in-suit.” The sum Sun wanted has been blacked out but it couldn’t have been more than Google’s staring at right now. It may come to rue the day it didn’t bite the bullet then.

We owe discovery of the letter to Florian Mueller who’s been tracking this suit as well as the 43 other suits currently lodged against Android like a hound dog after a fox.

It’s the first time in the 10-month-old case that the industry has gotten even a glimpse into Oracle’s demands and Florian figures that – worst case – the infringement damages alone would “exceed any money Google has made with Android so far” and could amount to “even more going forward.”

Besides if Google loses it may have to change the Dalvik virtual machine that’s at the bottom of the whole argument – Oracle doesn’t have to grant it a license – and that could impact all existing Dalvik-based applications. A defeat is also likely to impact Android’s “free” business model. Google might have to start charging significant per-copy licensing fees unless, as Florian hazards, it turns the thing into a loss leader.

Anyway, Google got what it asked the judge for – a Daubert hearing to sort out how Cockburn arrived at what Google calls his “unreliable, misleading” conclusions that it finds so “inappropriate for presentation to the jury.” The hearing to determine if he followed the right rules is set for July 21. Oracle will be heard from before then. Hopefully they’ll go light on the sealing wax.

Florian’s analysis of where he thinks Google’s case is weak and contradictory and where he thinks Oracle may not be a shoo-in is at http://fosspatents.blogspot.com/2011/06/oracle-wants-huge-cut-of-googles-mobile.html. The telltale letter is at Public Version of Google Filing Re. Oracle Damages. And Cockburn’s 27-page CV is at http://people.bu.edu/cockburn/CockburnCV.pdf.

It said overnight Tuesday that it wouldn’t write any more software for the thing.

Since HP is one of the only companies still using the part and since there’s a knife-wielding feud going on between Oracle and HP, one might assume that Larry Ellison and his new boy, the famously cost-cutting ex-HP CEO Mark Hurd, are getting back at box rival HP, which has got high-end HP-UX-run Itanium blades and Superdomes to sell.

After all, Oracle now has its own thinly supported Sparc chip to worry about in addition to its x86 hardware.

Oracle’s public statement claimed that in “multiple conversations…Intel management made it clear that their strategic focus is on their x86 microprocessor and that Itanium was nearing the end of its life.”

Besides, “Both Microsoft and Red Hat have already stopped developing software for Itanium [and] HP CEO Leo Apotheker made no mention of Itanium in his long and detailed presentation on the future strategic direction of HP.”

After Intel woke up and saw that on the wires an obviously surprised Intel CEO Paul Otellini rushed out a denial saying, “Intel’s work on Intel Itanium processors and platforms continues unabated with multiple generations of chips currently in development and on schedule. We remain firmly committed to delivering a competitive, multi-generational roadmap for HP-UX and other operating system customers that run the Itanium architecture.”

Intel reiterated that Poulson is its next-generation 32nm eight-core Itanium chip and is supposed to more than double the performance of the existing (and horribly late) Tukwila architecture. It said Kittson, which it described as an “officially committed roadmap product for Itanium beyond Poulson,” was also in active development.

Then an outraged HP, busy Wednesday morning with a shareholders meeting, put its two cents in.

Dave Donatelli, HP’s head of servers, storage and network, came out decrying Oracle’s “disinformation” as “clearly an attempt to force customers into purchasing Sun servers in a desperate move to slow their declining market share.”

He professed to be “shocked that Oracle would put enterprises and governments at risk while costing them hundreds of millions of dollars in lost productivity in a shameless gambit to limit fair competition.”

“Oracle continues to show a pattern of anti-customer behavior as they move to shore up their failing Sun server business. HP believes in fair and honest competition. Competition is good for customers, innovation and the marketplace.”

Determined to have the last word Oracle issued a second statement insisting the Itanium is dead and that HP knows it:

“When Oracle announced it was stopping development of software for the Itanium microprocessor,” it said, “HP Executive VP in charge of HP’s enterprise hardware business David Donatelli responded by saying, ‘Oracle would put enterprises and governments at risk while costing them hundreds of millions of dollars in lost productivity.’ Just the opposite is true. Oracle has an obligation to give our customers adequate advanced notice when Oracle discontinues development on any software product or hardware platform so our customers have the information they need to plan and manage their businesses. HP is well aware that Intel’s future direction is focused on x86 and that plans to replace Itanium with x86 are already in place. HP is knowingly withholding this information from our joint Itanium customers. While new versions of Oracle software will not run on Itanium, we will support existing Oracle/Itanium customers on existing Oracle products. In fact, Oracle is the last of the major software companies to stop development on Itanium.”

HP insiders claim HP could get better performance out of the x86 Intel Xeon chip these days but company pride – HP did after all push Intel into the misguided Itanium chip – and the cost its installed base would incur moving to the x86 architecture prevent it from dropping the platform.

Donatelli claims the Itanium roadmap extends out more than 10 years and asserted that HP will continue to support customers running existing versions of Oracle software on its Integrity servers, both existing and future platforms, during that timeframe.

It’s unclear what HP can do about patches and updates if they’re not forthcoming.

Oracle, however, has now said twice that it will continue to support existing versions of its software that customers are already running on Itanium.

For what it’s worth – back at the height of Unix proliferation – Oracle used to complain about having to support a lot of operating systems; no reason to think hardware’s any different.

Microsoft said last year that Windows Server 2008 R2 would be its last operating system to support the Itanium. With Red Hat it’s Enterprise Linux 6. Rumor has it Microsoft is about to terminate all support for Itanium in a few weeks since it represents so little of its installed base.

By the way, the Wall Street Journal noticed that an annual IEEE workshop on Itanium, scheduled for the beginning of April, has been cancelled without any explanation.

Oracle needs to find market share somewhere because both Sun, and Unix in general, are losing out badly according to the latest server figures from Gartner.

So Oracle’s completely refreshed it Sparc server line – which everybody wondered whether it would actually do – and, as a result, based on a new TPC-C benchmark, it’s comparing its OLTP performance to a cheetah, IBM’s to a stallion and HP’s to a turtle.

Oracle was reportedly able to achieve a record 30 million transactions a minute on a newfangled soup-up Sparc Supercluster made up of 108 T3 Sparc processors with 1,728 cores, 13TB of main memory, 1.7PT of storage, 246TB of Flash memory and a 40 gigabit network running a standard Oracle database with a quadrillion rows.

The best HP has been able to muster is a real estate- and energy-hogging Superdome that scored four million transactions a minute a few months ago. IBM, which Larry allowed – my, my – has “good products,” can do 10 million with a special non-standard clustered version of DB2 running on a Power 7 machine, Ellison said. Oracle used a plain vanilla Oracle RAC database to set the new world’s record.

Of course this is all benchmark craft. Oracle doesn’t expect anybody to actually buy the benchmark machine that’s supposed to be capable of 43 trillion transactions a day but next year Oracle will be peddling three dumbed-down general-purpose commercial versions of these new Sparc Superclusters based on Sparc T3 and M5000 servers under a new so-called “Sun Rises” program.

The Superclusters, whose price is unclear, is a complete infrastructure solution for running Oracle RAC database environments. Besides servers, they include software like ZFS, InfiniBand networking, FlashFire storage and new Gold-level support.

Ellison claimed they have no single point of failure and are completely fault-tolerant. T3 chips can have up to 16 cores. T4 chips are reportedly running in Oracle’s labs.

Oracle also introduced a new Solaris 11 Express-running blades-based Exalogic Elastic Cloud box as an alternative to the x86 Exologic Elastic Cloud machine it wheeled a few weeks ago.

The widget, to be delivered in Q1 running with Solaris or Oracle Linux, is supposed to be good at running middleware like Oracle WebLogic Server and is advertised as the “fastest Java machine in the world.” (Larry quickly pointed out that all Oracle Fusions apps are pure Java.) It also runs non-Java apps and is supposed to be optimized for multi-threaded programs.

Ellison said it’s “not a born-again cloud” whatever that means.

It offers on-demand capacity and multi-tenancy, scales and when the job is done returns the resources to the pool. It’s targeted at enterprise-wide data center consolidation and consists of a rack of 1U machines with dual six-core processors, solid-state drives and an InfiniBand I/O fabric, as might be expected since Oracle is partial to InfiniBand.

Oracle also announced a new high-end Sparc Enterprise M-Server server line bearing a new 3GHz Sparc64 VII+ processor from Fujitsu with a maximum 12MB of L2 cache, double what’s been available, offering a reported 20% performance increase. The boxes, up to the 64-socket M9000, are jointly designed, manufactured and branded.

Late Wednesday, three days into the SAP trial, Oracle came out and said, “Hewlett-Packard has refused to accept service of a subpoena requiring Mr. Apotheker to testify about his role in SAP’s illegal conduct. Mr. Apotheker started work for HP on Monday, but it now appears that the HP Board of Directors has decided to keep him away from HP’s headquarters and outside the court’s jurisdiction. We will continue to try to serve him.”

HP might as well have painted a big bull’s eye on Apotheker’s chest because Oracle’s gonna use his failure to show as evidence, circumstantial or otherwise, of his alleged complicity in the illegal downloading of Oracle IP that went for years at SAP’s now shuttered third-party maintenance outfit TomorrowNow.

The trial is supposed to decide how much SAP owes Oracle for poaching its intellectual property. SAP has already admitted it did but doesn’t think it should have to pay the $2.3 billion in damages Oracle is demanding.

Oracle CEO Larry Ellison claimed last week that he could prove Apotheker oversaw the “industrial espionage scheme” and that HP couldn’t afford to let him testify. He said HP would keep him out of the country until the trial is over.

HP maintains that Apotheker knew little of the affair. It claims Oracle only means to harass the man and interfere with his new job.

HP refuses to say where Apotheker is. When he got the job in October he said he would spend weeks, if not months, globe trotting and talking to HP staff, customers and stockholder by way of orientation. We heard from a source that he’s in the Far East.

Oracle can easily make that sound fishy since he’s been on its witness list since before he got the HP job.

In Leo’s physical absence Oracle is supposed to play at least clips of his videotaped deposition for the jury.

According to testimony by former SAP president Shai Agassi Leo was in charge of SAP’s “Safe Passage” program to rustle Oracle’s PeopleSoft, JE Edwards and Siebel customers and migrate them to SAP software using TomorrowNow as the decoy.

An Apotheker e-mail presented to the jury Tuesday said, “We need to inflict some pain on Oracle” by providing cheap TomorrowNow services to Oracle customers as a prelude to migrating them to SAP software.

Ellison was originally supposed to testify Friday, a performance that has now been moved to Monday – and don’t think that’s just the luck of the draw. It’s completely choreographed so Larry gets maximum media exposure. Nobody reads the Saturday papers.

By the way, Larry’s star lawyer David Boies has just flown in from a courtroom in New York to pick up the examination of SAP witnesses Friday and may well lead Larry over the traces.

Those are the fees that Oracle has wracked up pursuing its case for what is now copyright infringement against SAP and TomorrowNow, SAP’s IP-downloading cut-rate third-party maintenance subsidiary, the shuttered unit that got SAP in the hot water it’s now stewing in in a California federal court.

The joint stipulation is sealed now, carrying the notice “FILED IN ERROR. DOCUMENT LOCKED” in big bold letters on the court docket but IDG got a look at it first.

It said that in the proposed order TomorrowNow “stipulates to entry of judgment on Oracle’s claims for violations of the Federal Computer Fraud and Abuse Act and California’s Computer Data Access and Fraud Act, breach of contract, intentional interference, negligent interference, unfair competition, trespass to chattels, unjust enrichment/restitution and an accounting.”

Under the deal – as in other deals filed in the last few of days that aren’t locked – Oracle has agreed not to seek punitive damages against SAP and TomorrowNow, but only seek “those damages available under the Copyright Act.”

IDG says SAP would have to pay Oracle the $120 million by Tuesday November 9, when – theoretically of course – the trial would just be warming up. The sides picked an eight-man jury Monday, opening statements were Tuesday and Larry Ellison testifies on Monday.

The court will have to sign the deal first.

Oracle wants more than $2 billion in damages. It says that’s the fair market value of all the files TomorrowNow downloaded. SAP wants to keep the damages down to around $40 million based on what Oracle actually lost in maintenance sales. It took a $160 million provision to cover the case last week.

However, the trial is really no longer about the money.

A few months ago SAP conceded so-called “vicarious” infringement – that it had profited by TomorrowNow’s actions and could have controlled them.

Then last week it surprised everybody by stipulating to “contributory infringement,” basically that its senior management knew about the thefts and contributed to them.

The move was meant to curb Oracle’s blood lust.

SAP said it wanted to stop Oracle from turning the trial into a “media circus” by calling ex-SAP CEO Leo Apotheker, now HP’s CEO, to the stand and pinning the whole mess on him, casting serious doubts on the wisdom of the HP board in hiring him.

Ragging HP, Oracle Larry Ellison claimed last week to have direct evidence that Apotheker oversaw the “industrial espionage scheme.” He alleged that Apotheker was “on the run” from a subpoena and HP would never produce him, a prophecy that has subsequently proved true.

Despite SAP’s concessions and the fact that the trial is just about damages, Oracle still means to get Apotheker in the witness box but it will have to settle for a virtual appearance complements of his taped deposition.

Other star witnesses from SAP are also expected as well as Ellison himself, who will likely testify that SAP bought TomorrowNow in January 2005 knowing the Texas concern operated illegally from the due diligence it did and even foresaw that Oracle would sue.

According to the filed deposition of erstwhile SAP president Shai Agassi, who was on the SAP board at the time of the acquisition and ultimately responsible for the due diligence on TomorrowNow, SAP thought if Oracle sued TomorrowNow, customers would be “alienated” and that would be good for SAP. He testified via videotape Thursday that “There was always a risk Oracle would sue.”

He was preceded, also on videotape, by the developer TomorrowNow hired ostensibly to write a web scraper called Titan. He testified that Titan only went to Oracle’s site and it was “hammering their servers so hard” it amounted to a Denial of Service attack. Worried about the copyrighted material he saw downloaded he was told not to put any of his concerns in writing. He said he was laughed at when he suggested licensing the software. “Oracle was the enemy,” he said. However, TomorrowNow people worried about their personal liability, he said.

Former Oracle co-president Chuck Phillips, just named CEO of Infor, also took the stand Thursday, the same day Oracle wanted to call SAP CFO Werner Brandt, who may not show up either.

Phillips testified that Oracle would have charged SAP maybe $5 billion in license fees if the German company and its minion had tried to negotiate a price rather than rip the stuff off.

Ellison dumped Phillips so he could hire Mark Hurd after Hurd was forced to resign as CEO of HP, leading Ellison to lash out at the HP board for making “the worst personnel decision since the idiots on the Apple board fired Steve Jobs many years ago.”

Reuters also remembered at one point this week that the trial might not be the end of it for SAP. There is still a Justice Department investigation going on. The feds should be very interested in what SAP knew and when it knew it.

Reportedly both the DOJ and SEC have observers at the trial.

Oracle co-president Safra Catz and SAP co-CEO Bill McDermott have been in the spectators’ gallery.

Oracle is after all – to the consternation of many – suing Google for using Harmony or a subset of it in Android – including the infamous Dalvik Java Virtual Machine – rather than Java Mobile Edition (ME) and IBM has been the mainstay of Harmony development. Now IBM is pulling out of a potentially litigious situation for it, throwing in its lot with Oracle and probably killing Harmony absent Google jumping in. My. My. My.

According to IBM open source and Linux VP Bob Sutor, who provides some back-story color to the press announcement but doubtless not all, IBM finally recognized that Oracle – like Sun before it – was never going to make the Java compatibility test kits (TCKs) available to the renegade Apache project and, after years of fruitless struggle, threw in the towel.

In his blog Sutor said of Oracle’s position, “We disagreed with this choice, but it was not ours to make” and called IBM’s decision to co-operate a “pragmatic choice.”

“We believe,” he said “that this move to work together on OpenJDK is in the best interests of IBM’s customers and will help protect their investments in Java and IT technology based on it.”

Harmony became untenable when Oracle sued Google. That was what convinced IBM that Oracle would never ever loosen its grip on the TCKs – and may be an assessment of Oracle’s chances of winning – but between times without its backing Java development would drift or stagnate more than it already has.

So IBM will shift its development work from the “unofficial and uncertified” Harmony to OpenJDK, recognize OpenJDK as the primary Java runtime, and collaborate on the Java Standard Edition (SE) reference implementation.

In exchange, Sutor said, IBM is supposed to get some kind of leadership position in OpenJDK and expects “to have strong say in how the project is managed and in which technical direction it goes.”

Actually, however, Oracle drew the roadmap at OpenWorld last month and IBM is tagging along, throwing its weight behind the Oracle-laid plan to accelerate the release of JDK7 to mid-2011 by delaying certain features until JDK8, now due in late 2012. Oracle is supposed to create the Java Specification Requests (JSRs) for Java SE 7 and 8 and submit them to the JCP.

And for its allegiance IBM expects “to see some long needed reforms in the JCP, the Java Community Process, to make it more democratic, transparent and open. IBM and, indeed Oracle, have been lobbying for such transformations for years and we’re pleased to see them happening now. It’s time. Actually, it’s past time.”

What these concessions might be is unclear. Sounds like the JCP could come away less powerful not more. Oracle’s got a you-can-be-disbanded gun to its head just like Sun.

Oh, yes, by the way, Eclipse Foundation, which IBM started, is reportedly going to support Java SE 7.

See www.sutor.com/c/2010/10/ibm-joins-the-openjdk-community/.