mpx (mpx.delete@this.nomail.pl) on August 5, 2012 2:00 pm wrote:

> "The second sentence of Paragraph 1 states that "Oracle will continue to
> offer it's products suite on HP platforms... in a manner consistent with that
> partership as it existed prior to Oracle hiring Hurd" As conceded by Daley who
> drafted the language, the sentence uses the term "will" and thus speaks of
> mandatory future actions. The sentence can only be reasonably interpreted as
> requiring Oracle to continue offering it's product suite on HP's Itanium
> platforms. As this Court previously held "the plain language is readily
> susceptible to that interpretation". And the phrase "in a manner consistent with
> the HP-Oracle partnership as it existed prior to Oracle's hiring of Hurd" ties
> the future action directly to parties' historic course of dealings in which
> Oracle consistently and systematically ported new versions of its product to
> HP's Itanium based-servers".
>

You missed one key thing that the whole issue revolves around, and it is something I would have done a few years ago before I got married. Why? Because my wife was a lawyer, and she reads all of my contracts carefully.

What I learned from that is simple, words in plain english that you and I understand can and usually do have VERY different meaning in legal documents and to lawyers. What you and I, and most of humanity for that matter, sees as obvious does not necessarily have the same meaning in 'lawyer-speak'. Sometime it is the same, sometimes not, but when something is written by a lawyer, EVERY WORD is carefully chosen, and has meaning.

> This is obviously wrong as there are possible
> multiple viable interpretations of "historical dealings" between corporations.
> The specific one I deducted was that Oracle was systematically porting new
> versions of its products to HP platforms that were attractive to port by having
> good technical parameters, bright future, high or growing market share. That is
> they were not making porting decisions "by name", but "by parameters". In the
> past all HP product were attractive, they had desired parameters, now only x86
> fullfill these conditions. I believe if Itanium platform had good parameters it
> would be developed forw eagerly (just as Power is supported now, despite coming
> from a competitor), and that porting is going to happen on any new platform that
> will offer good parameters (most likely ARM64). So the lack of support is a HP
> failure - it didn't provide a platform with parameters good enough.
>
This I sort of agree with, but I would argue that Itanium was never comercially viable as a stand-alone platform. Some companys push it for one reason or another, but I would argue that it was never viable on merit. Intel and HP kept it alive for reasons other than it directly making them money. Oracle supporting it was similarly for reasons that did not necessarily include direct profit from the sales of Itanium based SW.

> The
> other possible interpretation - the one that Oracle actually gave, and with
> which they may win the appeal - was that in the partnership prior to Hurd
> employnment they always had the right to cease supporting HP platform. They just
> didn't utilize their right. There's no document forbidding Oracle to drop
> support for Itanium prior to hiring Hurd, so this interpretation must be
> considered valid. It's a nomal, recognized right of software owner to stop
> producting software for some platforms. Microsoft and Redhat did it - both close
> partners to HP. Oracle could do it too, before firing Hurd - there is no problem
> there. Interpretation of Hurd agreement as a ban on the right to drop support
> would mean that Hurd settlement changed the partnership, while Hurd settlement
> says the partnership should be the same as before - so such interpretation leads
> to absurd.
>
This I kind of agree with up to the last sentence. Do you think the Hurd hiring affected Oracle's view of HP? Even a bit?

> Considering possible plain language interpretations - HP
> continues to offer it's products suite on HP platforms (x86), which constitute
> majority of what HP sells. So the plain language is fulfilled. There's nothing
> about Itanium in the plain language of the settlement.
>
Here is where the legal bit comes in. "Will" has a specific meaning in contracts, ask a US lawyer if you know one what it means in contracts. It is not what you assume it is. Same with some of the other contract wording. Plain language != common understanding, it means more, "simple wording as interpreted by contract law" which is not the same as you think.

> The strangest thing
> is how the judge extracted time period for which according to him should
>
FWIW, I have heard a few things that are not public surrounding this case, so before you come to a conclusion about what did or did not happen, and more importantly why, you might want to dig around a bit for more info. There are a lot more layers to this than you might expect.

-Charlie