Former Apple designer: I won't testify at Samsung trial

Shin Nishibori, a key witness in the Apple vs Samsung trial, has turned down a subpoena to appear in court on the advice on counsel.

Former Apple designer Shin Nishibori is playing hard to get at testifying in the patent showdown between Apple and Samsung.

Samsung had been counting on Nishibori to appear in court. While at Apple, he developed designs of a Sony-like iPhone, according to AllThingsD, reportedly at the behest of Apple's design guru, Jony Ive.

The maker of Android-based smartphones has been arguing that Nishibori's designs serve as evidence that Apple's iPhone was influenced by Sony. If proven to be true, those claims would help Samsung, which has been accused of copying the iPhone for its own Galaxy smartphones. Apple has countered that the initial design of the iPhone predates the so-called Nishibori Design .

Either way, Nishibori isn't talking, at least not in court.

In response to a subpoena sent to Nishibori, his lawyer cited several reasons why his client won't appear at the trial, which starts today. In a letter sent to Judge Lucy Koh and published by AllThingsD, the attorney argued that Nishibori lives in Hawaii, more than 2,000 miles from where the trial is taking place in San Jose. Additionally, Nishibori is trying to recover from health issues, the lawyer asserted.

The attorney also cited a legal argument that the subpoena wasn't properly served, and therefore, Nishibori is not required to appear.

Samsung has run into past trouble trying to get hold of Nishibori. In response to a request for his deposition last November, Apple said that he was unavailable because "he currently is on a voluntary leave of absence" from the company. Samsung did manage to eke out a deposition this past May, according to AllThingsD.

But with the trial now under way, Samsung needs all the ammunition it can get. If Apple emerges the victor, Samsung could be forced to pay out as much as $2.5 billion in damages and face a sales ban on any product deemed to have infringed on an Apple patent.

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