On November 9, 2009, the European Commission issued a statement of objections relating to the acquisition of Sun by Oracle Corporation. The Statement of Objections sets out the Commission’s preliminary assessment regarding, and is limited to, the combination of Sun’s open source MySQL database product with Oracle’s enterprise database products and its potential negative effects on competition in the market for database products. The issuing of a Statement of Objections allows addressees to present arguments in response to the Commission’s preliminary assessment of the competitive effects of a notified transaction. A Statement of Objections is a preparatory document that does not prejudge the European Commission’s final decision. Any final decision by the European Commission is subject to appeal to the European Court of First Instance.

Indignant that the EC would dare to bring the $7 billion deal into question, Oracle vowed to take it to the mat in a harshly worded rebuttal:

Oracle’s acquisition of Sun is essential for competition in the high end server market, for revitalizing Sparc and Solaris and for strengthening the Java development platform. The transaction does not threaten to reduce competition in the slightest, including in the database market. The Commission’s Statement of Objections reveals a profound misunderstanding of both database competition and open source dynamics. It is well understood by those knowledgeable about open source software that because MySQL is open source, it cannot be controlled by anyone. That is the whole point of open source.

The database market is intensely competitive with at least eight strong players, including IBM, Microsoft, Sybase and three distinct open source vendors. Oracle and MySQL are very different database products. There is no basis in European law for objecting to a merger of two among eight firms selling differentiated products. Mergers like this occur regularly and have not been prohibited by United States or European regulators in decades.

The U.S. Department of Justice carefully reviewed the proposed acquisition during the normal Hart-Scott-Rodino review and considered it again when the European Commission initiated a second phase review. On both occasions the Justice Department came to the conclusion that there is nothing anticompetitive about the deal, including specifically Oracle’s acquisition of the MySQL database product. The U.S. Department of Justice approved the acquisition without conditions and terminated the waiting period under the Hart-Scott-Rodino Act on August 20, 2009.

Sun’s customers universally support this merger and do not benefit from the continued uncertainty and delay. Oracle plans to vigorously oppose the Commission’s Statement of Objections as the evidence against the Commission’s position is overwhelming. Given the lack of any credible theory or evidence of competitive harm, we are confident we will ultimately obtain unconditional clearance of the transaction.

And Oracle will evidently pursue its case with help from the U.S. Department of Justice’s Antitrust Division, which also issued a statement on the EC’s move today:

After conducting a careful investigation of the proposed transaction between Oracle and Sun, the Department’s Antitrust Division concluded that the merger is unlikely to be anticompetitive. This conclusion was based on the particular facts of the transaction and the Division’s prior investigations in the relevant industries. The investigation included gathering statements from a variety of industry participants and a review of the parties’ internal business documents. At this point in its process, it appears that the EC holds a different view. We remain hopeful that the parties and the EC will reach a speedy resolution that benefits consumers in the Commission’s jurisdiction.

Several factors led the Division to conclude that the proposed transaction is unlikely to be anticompetitive. There are many open-source and proprietary database competitors. The Division concluded, based on the specific facts at issue in the transaction, that consumer harm is unlikely because customers would continue to have choices from a variety of well established and widely accepted database products. The Department also concluded that there is a large community of developers and users of Sun’s open source database with significant expertise in maintaining and improving the software, and who could support a derivative version of it.

The Department and the European Commission have a strong and positive relationship on competition policy matters. The two competition authorities have enjoyed close and cooperative relations. The Antitrust Division will continue to work constructively with the EC and competition authorities in other jurisdictions to preserve sound antitrust enforcement policies that benefit consumers around the world.

• A delayed EC review process of the current proposed acquisition, which may end in a rejection left unchallenged by Oracle
• A renegotiated deal with Oracle, which would likely exclude MySQL and therefore involve a renegotiated deal price
• An offer by IBM (IBM) to buy Sun at a discount to the Oracle offer following a rejection by the EC of the current Oracle deal
• A scrapping of the deal by Oracle

Interestingly, Reid feels this last possibility isn’t as disastrous as it might sound. Sun has $1.8 billion in cash, and while its latest results weren’t at all pretty, they did feature improving gross margins.

“Our current thesis on [Sun] assumes the announced [Oracle] acquisition will close, but risks have increased,” Reid wrote. “There remains a risk that the European Commission will provide a ’statement of objections’ to [Oracle’s] planned acquisition of [Sun] based on concerns regarding [Oracle’s] plans for the MySQL database which [Sun] currently owns. The deadline for such a decision is January 19, 2010 but it is possible that the EC will state objections before the end of the year.”

Elaborating, Reid notes that “Although [Oracle] could likely reduce the risk of a statement of objection–and thus of a delayed or perhaps failed bid for [Sun]–by supplying to the EC an argument to explain why the [Oracle-Sun] deal will not adversely impact competition in the database market, our assumptions around [Sun’s] valuation include increased risk regarding the completion of the [Oracle-Sun] transaction at $9.50….While we believe the currently proposed acquisition by [Oracle] is the most likely outcome for [Sun], we believe other scenarios remain possible, although each is made more difficult by the continued uncertainty around Sun’s fate, and the resulting erosion in customer confidence in Sun.”

With V-Block, clients can build “private clouds” from which to draw computing resources. It’s an ambitious effort designed to capture a bigger piece of the IT infrastructure market by offering large unified systems designed to handle most of a business’s computing needs. As Cisco CEO John Chambers noted earlier today, the goal here is to more effectively target the market for cloud infrastructure and services, a market that could be worth as much as $350 billion.

It’s also a market loaded with with fierce competitors, IBM (IBM) and Hewlett-Packard (HPQ) among them. Not that this worries Chambers much. “Will this change the industry?” he asked during a conference call today. “Time will tell. I believe that it will be the partnership that people will look back on and say it changed the data center and clouds forever.”

“Bob Moffat, who had been placed on a leave of absence as a result of a US federal investigation into his personal activities, is no longer an employee of IBM,” the message reads.

A terse farewell for a man who was reportedly a trusted lieutenant of Sam Palmisano, IBM’s (IBM) chief executive officer, and one of his possible successors. Moffat, after all, is a 31-year IBM veteran, a “true-blue” company guy who used to boost employee morale by wearing kilts and sumo wrestler suits. Clearly, the company wants to put as much distance between itself and anyone linked with what’s being described as one of the biggest insider-trading schemes of all time–even if he is an archetypal IBM executive.

Moffat, for his part, insists he left the company of his own accord. “[He] retired from IBM, he was not terminated or fired,” said his attorney, Kerry Lawrence, who also noted that the exec is “still asserting his innocence….[He left] so he could devote his time and energy to defending himself against the charges.”

“On my birth certificate, under my father’s occupation, it says cowboy. So I will admit to being a cowboy, but not sue-happy.”

– Former SCO CEO Darl McBride, November 2003

Looks like Darl McBride, SCO’s “sue-happy cowboy” CEO, has seen his last roundup. In a new 8-K filing with the Security and Exchange Commission, the company reveals that under the order of a bankruptcy court, it has eliminated the chief executive officer and president positions and consequently sacked McBride.

Which means SCO’s seemingly endless legal campaign may have finally found its end. For though the company says it plans to pursue litigation against IBM (IBM) and Novell (NOVL), there seems little promise in it now. SCO is mired in bankruptcy. It’s evidently still unable to prove that Linux illegally contains its UNIX System V source code. And now it has fired the guy who devoted the past six years attempting to do just that.

And, frankly, SCO is better off for it. As Free Software Foundation General Counsel Eben Moglen once said, “As an amateur scholar of constitutional law, Mr. McBride is longer than he is deep.” And this does appear to be the case. Because despite vast swaths of evidence to the contrary, McBride always appeared certain that SCO had successfully defended its intellectual property in court.

“We’ve obviously overachieved on that objective,” McBride said of SCO’s efforts to defend against IBM’s alleged intellectual property infringements in 2004. “If I had to make this decision [to sue IBM] ten times over, the decision would be the same one ten times. Big Blue is no doubt a formidable opponent and we still expect to win. Keep your eye on the [court] filings. Over the coming year, one of the things that you’re going to see is that Big Blue has got big problems.”

Obviously, Big Blue wasn’t the one with the big problems.

Kara and the Boomtown blog were in New York this week and started the party early with Bob Pittman–well known media and Web exec. Kara wasn’t dancing on the tables, but did admit that Pittman’s new venture, a top-shelf tequila, was plenty tasty. BoomTown went straight from the sauce to the nose candy in a short interview with Ford’s (F) social media guru, Scott Monty. While Monty might have been using cocaine as a metaphor for a new kind of marketing that changes consumption of all other marketing, Weekend Update gets his subtext. As if BoomTown didn’t have enough hardcore “cred,” Kara headed off to fabulous Las Vegas for the annual meeting of the blogs at BlogWorld. Nothing that happens in Vegas this weekend will stay there–not with thousands of bloggers roaming the Strip in search of a new meme to latch on to.

Digital Daily trapped a Snow Leopard early in the week. John reported on Apple’s (APPL) admission that the Snow Leopard version of OS X occasionally overdelivers on its promise to free-up disk space. In certain circumstances, the furry filcher can sneak in and make off with all your user data. If it was data loss you were looking for though, no one beats the good folks at Danger who, up until recently, housed all kinds of personal data associated with the Sidekick line of smart phones. The Microsoft (MSFT) subsidiary permanently lost contact, calendar and other personal data associated with many accounts. Weekend Update thinks that Sidekick users were given fair warning, though; the company name is, after all, Danger. John rounded out the week with something unusual–good economic news from the tech sector: Intel (INTC), Google (GOOG), IBM (IBM) and AMD (AMD) were all feeling a little more flush than their prognosticators had predicted, each beating their admittedly dismal forecasts by at least a little.

MediaMemo followed up on some important stories, beginning the week with Twitter’s spam problem. Peter reported that the Web’s biggest microblogging pipeline updated its tools for trapping the flotsam and jetsam. Twitter is reportedly in talks with several leading search engines that want to feed on all that delicious real-time data. Peter also updated the readers on the tough times over at Condé Nast. This round of cuts was a little closer to the magazine publisher’s crown jewels than last week’s cuts and closings, with the layoff of at least six staffers from Vogue. Peter closed out the week with a cheeky little open letter to the Federal Trade Commission. He asked some important questions regarding the FTC’s recent obsession with bloggers and disclosure. He seems to think that most serious bloggers don’t like to sell their credibility for tiny discounts to obscure events.

Walt and Katie were all over Windows 7 this week, with help on all fronts for those making “the switch.” Before he got to that, though, Walt spent some personal tech time with some supersmart phones. He elevated Motorola’s (MOT) CLIQ and RIM’s (RIMM) BlackBerry Storm2 to the level of potential iPhone killer and praised their updated features and power as mobile computers rather than simply phones. Mossberg’s Mailbox heralded the beginning of the Windows 7 flood and was chock full of questions about upgrading and replacing some of the functionality that was built into Vista. The Great One also offered thoughts on installing Windows 7 on a virtual machine running in OS X, but couldn’t speak to the boot camp option until Apple releases more info…and the proper drivers.

Katie tested PC Mover from LapLink as an all-in-one option for moving precious data to Windows 7. While she praised the $15 program’s efficiency, she thought it was a little sleazy that it also tried to get her to purchase other programs while it had her data in its clutches. All went well, and the moral of the story is that this one-trick pony upgrade assistant was worth the minimal price tag.

Breaking News: Weekend Update is getting intermittent reports that Kara may have been kidnapped from BlogWorld by a roving band of mommybloggers in white robes, all slowly chanting “mon-eh-tize” as they piled into their Honda minivans. They may or may not have sealed her into a 30 foot-wide, saucer-shaped balloon, which could be floating westward toward the Bay Area.

If we get her back, you can look forward to another fully staffed, fully loaded week at AllThingsD.

Looking ahead, IBM (IBM) expects full-year 2009 earnings of at least $9.85 a share, compared to its previous estimate of $9.70 per share.

“Our long-term strategic shift to higher-value businesses again enabled us to deliver outstanding margin, earnings and cash flow growth in the third quarter,” IBM CEO Sam Palmisano said in an earnings release. “We also saw improved revenue trends in our business and share gains in software and hardware. We continued to invest for growth in areas where clients see potential for value creation including Smarter Planet solutions, cloud computing and advanced business analytics.”

Looking ahead, Palmisano added, “We are optimistic about 2009 as we again raise our full-year expectations and we remain well ahead of pace for our 2010 roadmap of $10 to $11 per share.”

Taken together with Intel’s (INTC) latest earnings, which also beat expectations for revenue and profit, IBM’s report provides more evidence that the tech sector recovery is underway.

But perhaps those restrictions were better left in place. Because on Thursday, the DOJ opened a preliminary investigation into IBM’s business practices, seeking to determine if the company has abused its monopoly position in the mainframe market. The inquiry stems from a complaint filed by the Computer and Communications Industry Association that claims IBM (IBM) has undermined sales of competing mainframe hardware products by refusing to license its mainframe operating system and certain other intellectual property.

“IBM has used its power to resurrect and create a formidable set of barriers in the mainframe market by their misuse of intellectual property,” CCIA CEO Edward J. Black, told the New York Times. “Once IBM walls are taken down by the government enforcing the law, there will be a rush of people looking to get part of this marketplace.”

Perhaps. Certainly that’s not really the case now. As the CCIA and T3 Technologies–which filed an antitrust complaint against IBM in Europe earlier this year for similar reasons–would argue, IBM has essentially left the industry with a single mainframe vendor: itself. And if that sounds like an exaggeration, consider this: A few years back, a company called Platform Solutions attempted to license IBM’s mainframe software. IBM refused and then sued Platform, accusing it of a raft of IP-related violations. Platform countersued. And then, in 2008, IBM acquired the company and promptly shut down its operations.

“For decades, IBM licensed its system software and intellectual property to other computer manufacturers,” T3 president Steven Friedman said earlier this year. “However, for no reason other than to remove all competition from the mainframe market, IBM eliminated programs to allow customers to buy its mainframe software for use on non-IBM mainframe solutions….[Now] only IBM…offers IBM- compatible mainframes and, based on IDC reports, controls over 99% of all existing IBM-compatible mainframes in use today.”

“I’m absolutely of the opinion that this is a trustful deal that we’re making. I trust Microsoft,” Competition Commissioner Neelie Kroes said during a press conference this morning. “There can’t be a misunderstanding. Here is the final result of a long discussion over a long period.”

Microsoft (MSFT) was equally upbeat on the EC’s decision. “We welcome today’s announcement by the European Commission to move forward with formal market testing of Microsoft’s proposal relating to web browser choice in Europe,” General Counsel Brad Smith said in a statement. “We also welcome the opportunity to take the next step in the process regarding our proposal to promote interoperability with a broad range of our products.”

There were, however, a few that were not so welcoming of the move. Top among them, ECIS, an industry group whose members include Oracle (ORCL), Sun (JAVA), IBM (IBM) and Nokia (NOK). “ECIS notes that the settlement does not appear to deal with the inadequacies of Microsoft’s standards compliance, unfair pricing practices or other concerns related to patent abuse or standards manipulation,” the group said in a statement.

People familiar with the matter tell The Wall Street Journal and Bloomberg that Brocade (BRCD) is seeking a buyer and that both Hewlett-Packard (HPQ) and Oracle (ORCL) are among its potential suitors. No deal is imminent, but rumor that one might be coming was enough to spike Brocade’s shares some 15 percent.

It’s easy to see why Oracle and HP–and IBM (IBM) as well–might be interested in Brocade. The company’s portfolio of data-networking products and services would do much to help HP take on Cisco (CSCO). It would also give Oracle its own line of networking gear, fulfilling CEO Larry Ellison’s dream of offering customers complete systems as T.J. Watson’s IBM once did.

That said, there are issues with both scenarios. As Oppenheimer & Co. analyst Ittai Kidron explained in a research note this morning, an acquisition by Oracle would require the company to really commit to hardware as a long-term growth plan. “If the company truly plans to become a systems company (one-stop shop software/hardware), then Brocade would be a nice fit, especially including Sun Microsystems with no overlap,” Kidron said, adding, “we’re a bit in the dark on strategy here.”

And what of HP? That’s potentially far more problematic, what with equipment overlap and revenue implications. “Brocade would add the missing data center switch architecture as well as a strong presence in the SAN switch market,” Kidron explained. “That said, there would be massive overlap with HP’s ProCurve networking unit, which we believe would be disruptive. Also, IBM and EMC are 10% customers for Brocade and could be lost as customers (along with HP’s 10% business of Brocade).”

So will Brocade be tech’s next big buyout?

If the medium was the message in yesterday’s zeitgeist, today’s “message transcends the medium” is a whole new mindset. It’s a brave new world out there, and AllthingsD didn’t fail to help make sense of it this week.

Boomtown was abuzz with the latest conversation from an Internet publishing sensation. Trip Adler, CEO of San Francisco-based Scribd, spoke to Kara about all things text and what its like to share a niche with giants. Speaking of giants, Boomtown was in Seattle this week, peering through everyone’s favorite Windows. While there, Kara caught wind of CEO Steve Ballmer’s embrace of the “new efficiency” by way of some executive belt-tightening. And in a followup to the near-viral “Louie Swisher loves Redbox” video, Kara wrote about a legal slap-fight between the DVD rental kiosk group and Fox.

While Fox was busy giving Redbox a black-eye, Digital Daily covered blows from a different kind of palm. It seems that Palm’s new mobile darling, the Pre, is a little over-abundant on store shelves. An 11 week-deep glut of the device may indicate tough times ahead for the smart-phone contender. If one plucky contender wasn’t enough, Digital Daily also covered IBM’s release of a LotusLive iNotes. This mail, calendar, and task management solution takes aim at a market currently in Google’s crosshairs. Finally, the week wouldn’t be complete with out a good Apple prognostication. John closed things out with some FCC documents that indicate a new wireless mouse and keyboard offering from the crew at 1 Infinite Loop. The logical jump is that the new input devices might be designed to complement a newly refreshed line of desktops.

John had new Macs and Peter had old tricks this week, specifically of the Kindle kind. In a settlement with the now-famous “1984 kid,” Amazon sealed up some of the holes in its policies about removing books from its Kindle devices. Now it’s most certainly against their policy to remove data…except when it isn’t. In a similar vein, more details surfaced about an upcoming e-publishing venture from Time that aims to put the content genie back in the bottle, Hulu style. The concept is to create a clearinghouse for magazines online and take back control of content and advertising dollars. Just in case we were beginning to think that there is always digital strength in numbers, Peter covered Comcast’s squashing of a rumor that it was looking to acquire a stake in NBC. Just the hint of such a move sent Comcast’s stock on a temporary tumble.

Walt was a personal technology machine this week with new additions to both the personal technology section and Mossberg’s Mailbox. And if that weren’t enough, Katie covered an important countertrend in personal tech that really turned some heads.

The personal tech feature of the week was the HTC Hero. This latest offering from the veteran Taiwan phone manufacturer features its most robust customization of the Android platform yet. Walt gave it high marks and placed it squarely among the Blackberry-Palm-Apple pantheon.

Walt checked the mailbox this week and answered some serious questions about the rise of the touchscreen laptop, the finer points of OS X and the iPhone OS, and tried to let a Vista Ultimate user down easy about the limited options for an easy upgrade to Windows 7.

Katie brought her A game to The Mossberg Solution with a succinct and poignant analysis of HP’s new growth model. The new Photosmart All-in-One with “Touch-Smart Web” bucks the current trend of photos and documents for digital display and tried to put consumers back in the printing game. The new printing experience uses a robust touchscreen and Web interface to allow printing of pics straight from the Web without a computer ever being involved. While she did have some good things to say about the printer’s apps and interface, HP’s overall strategy left her underwhelmed.

Whether you want to be the first to know when “that tablet” finally arrives or are just into the best coverage from the industry that is changing the world, there is no better homepage for all-things-tech than AllthingsD.

Priced at about $36 per user per year, iNotes is cheaper than Google’s (GOOG) Apps Premier Edition offering, which costs about $50 per user per year. And while it might not offer as many bells and whistles (IBM’s 1GB of storage is significantly less than the 25GB that Google provides), IBM (IBM) claims it more than makes up for it in security, reliability and privacy.

“We run the world’s most mission critical systems for banks, telcos and utilities,” said Sean Poulley, IBM’s vice president of online collaboration services. “It’s fair to say we’re pretty trusted….Candidly, Google has shown itself to be weak….There is a world of difference between supporting a consumer-grade service and a business-grade service. We’re bringing business class services and support with mission critical reliability at a price lower than the competition.”

About 1987 word got out that the Ingres database would soon have a sexy new function: It would be able to do distributed queries… Ellison told [Oracle ad man Rick] Bennett to prepare an advertisement announcing Oracle’s distributed capability. Then he assigned an engineer to whip up a distribtued feature so the company would actually have something to sell when the ad appeared. Ten days later Bennett’s advertisement hit the trade press: “Oracle Announced SQL*Star,” it said. “The First Distribtued Relational DBMS…”

“The fact of the matter was Oracle didn’t have anything,” said George Schussel, the trade show promoter who had followed Oracle from the beginning. “But that was the way they worked. Everything was marketing, everything was image. You simply announced the product and then figured out later how to deal with it from a technological point of view.”

– Excerpt from The Difference Between God and Larry Ellison

If you’re going to claim in an advertisement that Transaction Processing Council benchmarks show that a hybrid Sun-Oracle server runs faster than a competing product from IBM, it’s probably wise to make sure you have the TPC benchmarks to back up your claim.

Not if you’re Oracle (ORCL), though. On Aug. 27, the company ran an advertisement in The Wall Street Journal and the Economist claiming that “Sun + Oracle is Faster” compared to a TPC-benchmarked IBM (IBM) system. “Oracle and Sun together are hard to match,” Oracle said in the ad. “Just ask IBM. Its fastest server now runs an impressive 6 million TPC-C transactions, but on October 14 at Oracle OpenWorld, we’ll reveal the benchmark numbers that prove that even IBM DB2 running on IBM’s fastest hardware can’t match the speed and performance of Oracle Database on Sun systems.”

A boastful claim. Thing is, at the time it was made, the Sun (JAVA)-Oracle system hadn’t yet been audited by the TPC. In other words, it was based on an unsubstantiated benchmark. And that didn’t fly with the TPC, which fined Oracle $10,000 and ordered the software maker to pull the ad. “Oracle’s claim that it is faster than IBM using a TPC-C benchmark result it claimed would be announced on October 14, 2009 was not supported because Oracle did not have a TPC result at the time of publication,” the TPC explained in an official statement. “The TPC requires that claims based on TPC benchmarks must be demonstrable using publicly available data from official TPC benchmark results.”