Shin Nishibori, a former Apple designer and a key witness in Samsung defense against patent infringement allegations from Apple, will not appear before a California court for the Apple versus Samsung trial despite being asked to do so.

Responding to a subpoena to appear and testify at the jury trial part of the case, which begins on Monday at the U.S. District Court in San Jose, Nishibori's lawyer said the subpoena was not properly served under Rule 45 (b)(2) of the U.S. 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, 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 on Sunday.

Lawyers for Samsung already deposed Nishibori in Hawaii on May 2.

During that deposition, Nishibori said he was asked to produce mockups of a "Sony-like" cell phone as part of Apple's prototype design process for its first iPhone.

Samsung, which is alleged by Apple to have imitated its designs in its tablets and smartphones, is expected to argue that such practices are common in the consumer electronics industry and Apple also looked to competitors with Nishibori's mock-ups.

The case is 11-01846 in the U.S. District Court for the Northern District of California in San Jose.