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Shin was Apple's designer, and a former Sony designer, but didn't show up at trial | 211 comments | Create New Account
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Shin was Apple's designer, and a former Sony designer, but didn't show up at trial
Authored by: Anonymous on Sunday, September 23 2012 @ 12:21 PM EDT
Can we correct this slightly? Shin Nishibori didn't design a "Sony inspired iPhone". He was challenged to give an answer to the question "what would the iPhone look like if Sony designed it"? An idle curiosity, and a challenge to Nishibori's talent, but at no point did Nishibori nor anyone at Apple copy any Sony product even for internal purposes, nor did they incorporate anything from Sony in any product that went on sale.

And it has been reported that Samsung offered Nishibori $75 in expenses to travel from Newzealand to the USA. It is common sense that anyone would under these circumstances do their best to avoid going to this court case, so either Samsung's lawyers have no common sense, or they want to be able to make claims of unfairness while actually not wanting Nishibori to appear in court.

[ Reply to This | Parent | # ]

Please clarify last sentence.
Authored by: Anonymous on Sunday, September 23 2012 @ 03:51 PM EDT
What possible threat could have been involved regarding a District Court Judge
in the US?

[ Reply to This | Parent | # ]

Shin was Apple's designer, and a former Sony designer, but didn't show up at trial
Authored by: PJ on Sunday, September 23 2012 @ 07:35 PM EDT
Here's what really happened. This proffer of testimony [PDF] by Samsung tells the tale.

Some of the Nishibori materials were in the bundle that John Quinn released to the media when he was told by Koh that they could not be used at trial. So for anyone to write that it's Samsung's fault for not paying him enough is ridiculous.

Here's [PDF] the section of docket #1975 on how hard Samsung tried to get the guy:

For months, Samsung has been attempting to get relevant testimony from Apple designer and named design patent inventor Shin Nishibori. After court orders and long delays, Mr. Nishibori sat for deposition with counsel for Apple defending him, but terminated the deposition after two hours and refused to testify any further.

Samsung then demanded that Apple produce Mr. Nishibori for trial testimony. When Apple claimed that Mr. Nishibori was represented by separate counsel and eventually informed Samsung that Mr. Nishibori had recently resigned from Apple, Samsung served a trial subpoena on him in Hawaii which he now seeks to quash.

Because Samsung has been unable to obtain Mr. Nishibori‘s appearance at trial, Samsung has offered deposition testimony based on his unavailability. Apple now objects to Samsung‘s designations of the testimony of Mr. Nishibori based on the Court‘s prior order limiting Mr. Nishibori‘s testimony to issues relevant to functionality. See Dkt. 1553, at 3.

Apple‘s claim that the testimony designated by Samsung is unrelated to functionality is mistaken, and Samsung should be permitted to introduce the limited deposition testimony it has for purposes the Court has previously allowed. Id. Of course, if Mr. Nishibori was not avoiding appearance at trial, then Samsung would not be so limited in eliciting relevant testimony.

The portions of Mr. Nishibori‘s testimony that Samsung has designated are narrow. The total run time of the translated testimony is 11 minutes. The proffered testimony relates exclusively to (1) establishing Mr. Nishibori‘s background and position at Apple; (2) discussing Mr. Nishibori‘s efforts to create the ―sony-style‖ design referenced in DX 562; and (3) providing foundational information regarding DX 562 that will help the jury understand Samsung‘s arguments that the design patents embodied in Apple‘s iPhone are functional.

For example, DX 562 contains a reference to a project ―shin‘s been doing with the sony-style chappy,‖ which the author Mr. Howarth noted ―achieve[d] a much smaller-looking product with a much nicer shape to have next to your ear and in your pocket.‖ The Court has twice held that this exhibit is admissible to demonstrate functionality. See Dkt. 1519, at 2; 1545, at 11 (―The Howarth e-mail and . . . Nishibori testimony are admissible only to show functionality.‖) Mr. Nishibori‘s brief testimony regarding the timing and nature of his assignment to create the design alternative referenced in DX 562 therefore relates directly to admissible evidence and will assist the jury by providing the context and meaning of the discussion contained in DX 562. That foundational information will help the jury to better understand the functional considerations mentioned by Mr. Howarth in DX 562 by providing information regarding the timing and nature of Mr. Nishibori‘s design work, and the functional influences on the development of the iPhone. In short, Mr. Nishibori‘s testimony will assist the jury in resolving Samsung‘s claim that the D‘677 and D‘087 patents are invalid as functional.

The Court has expressly ruled that DX 562 and Mr. Nishibori‘s testimony are admissible for that purpose, and should do so again here.

Significantly, Apple served counter-designations of Mr. Nishibori‘s testimony and DX 562 as well. Apple apparently wants to use Mr. Nishibori‘s testimony to provide context to the statements made in DX 562, but Apple does not want Samsung to be able to do the same. Thus, Apple‘s position is confusing and inconsistent.

Apple also objects to Mr. Nishibori‘s testimony on the basis that it allegedly includes testimony that was incorrectly translated from the original Japanese. Apple‘s objection affects only nine lines of the designated testimony, at 25:7-15 and 25:21.

In each instance, Apple seeks to use an alternative translation rendered by a secondary check interpreter, which differs in only minor respects from the official translation. To the extent that Apple believes these differences are significant and should therefore be resolved by the trier of fact, Apple was free to counter-designate the alternative translation provided by the check interpreter on the record. Apple failed to make such counter-designations and does not provide any reason to prevent Samsung from playing Mr. Nishibori‘s testimony as translated by the official lead interpreter. This, too, is irreconcilable with Apple‘s objections, which should be overruled.

[ Reply to This | Parent | # ]

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