Oracle vs. DOJ: Analysts, Lawyers See Different Trial

Jaakson also believes Judge Walker is pleased with the caliber of the customer witnesses called by the DOJ, noting that he has referred to them as being knowledgeable and sophisticated. The DOJ "has definitely established that all these customers distinguish between two separate markets, even if they don't use the term 'high-function,'" he added, referring to the DOJ's definition of the market.

Microsoft, whose head of business applications testified on behalf of the DOJ Wednesday, may not figure as largely in the case as some suspect, Doyle suggested. That's because Oracle plans to call another Microsoft executive who is expected to testify that the world's largest software market is likely to enter the high-end market.

Rather than evaluating the credibility of each executive, the judge may just decide each cancels the other out and decide not to consider Microsoft a factor, Doyle said.

Although both sides are quibbling about the market definition, an Oracle-PeopleSoft merger would undeniably combine two of the largest players and it's hard not to see some competitive effects as a result, added Stern School of Business Professor Nicholas Economides, who specializes in antitrust and public policy issues.

"Oracle, in my opinion, will have a hard road in front of them proving there are no anticompetitive effects whatsoever," he said. "The case is in principle difficult for Oracle to prove, and Oracle will have to talk very extensively about the intricacies of the markets."

Conversely, George Mason University antitrust law professor Ernest Gellhorn believes the DOJ faces an uphill battle because, to borrow Oracle's charge, its market definition looks a little "gerrymandered."

"I think he [Judge Walker] will look upon a novel market definition with great care and skepticism," Gellhorn said, noting the Supreme Court has made it clear that how businesses define the market in question should be a consideration. "The government faces a rigorous task in showing this [definition] is recognized by the industry [and] the market definition is the beginning and ending of the case."

Of course, it won't be clear whose market definition has been more persuasive until the judge issues his much-anticipated opinion, likely within the next two months.

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