Shubin

Before us is a petition for mandamus to require the district court to grant petitioners a jury trial on certain issues raised by a proposed amended counterclaim.

The original complaint below sought declaratory relief as to whether the then defendants’ (here petitioners Shubin) patent was valid; and denied infringement by plaintiff. The original answer and counterclaim sought an injunction and an accounting, and demanded a jury. After plaintiff below sought leave to strike the defendants’ demand for a jury trial, upon the ground only equitable issues were involved, defendants below sought to amend their counterclaim to eliminate all need for equitable relief, and to allege damages, and thus create a factual question.

It should be mentioned that discovery proceedings below indicated the prelitigation notice of patent and charge of infringement had so closely antedated the filing of the suit that both parties had agreed that no infringement had taken place—hence no necessity for the equitable relief prayed for in the original answer and counterclaim.

A partial transcript of the proceedings below is before us on this motion. It indicates the trial judge recognized that patent suits…