Former Apple designer, Shin Nishibori, has refused to appear before a California court today as a key witness in the patent trial between Apple and Samsung, after Samsung subpoenaed Nishibori in Hawaii, with a US$60 cheque to cover expenses.
Responding to the subpoena to appear and testify at the jury trial part of the case, which begins today at the US District Court in San Jose, Nishibori’s lawyer said the subpoena was not properly served under Rule 45 (b)(2) of the US Federal Rules of Civil Procedure. The rule regulates serving of subpoenas outside the state jurisdiction of the court and comes into play because Nishibori lives in Kailua, Hawaii.
Nishibori’s legal team also argued that US$60 would not sufficiently cover the travel costs incurred to attend the trial in California from Hawaii, where he is recovering from health issues.
“Mr. Nishibori does not wish to offend the court by taking this action, but has been advised by counsel that he is not required to appear,” read in-part a letter from Nishibori’s lawyers sent to the court earlier this week.
Samsung had planned to question Nishibori on the stand over design work he did for Apple in 2006. Nishobori, under orders from Apple’s Designer-In-Chief Jonny Ive, was allegedly tasked to build what an iPhone designed by Sony would look like. Samsung wanted to use this as evidence that imitating competitor designs is a common practice in the consumer tech industry and that it technically did not copy the iPhone with its Galaxy Nexus smartphone and Galaxy Tab tablets because Apple had used elements of Sony’s original design in the first place.
Apple responded to the allegations, stating that the iPhone’s design was based on earlier prototypes from 2002, predating the work carried out by Nishibori in 2006. It has also asked the court to ban Samsung from using the information as part of its defense claims.
Presiding Judge Lucy Koh is yet to make a ruling on whether Samsung is allowed to continue with its current line of argument in ongoing court proceedings.
For a full transcript of the letter from Nishibori’s lawyers sent to Koh earlier this week, see below.