Shubin

This is a petition for a writ of mandamus requiring the District Court to grant petitioners a jury trial on certain issues raised by an existing, and a- proposed amended, counterclaim. We have already ruled that the granting of leave -to file said amended counterclaim was a discretionary matter with the trial court. We reaffirm that position.

Petitioners’ second position is that they are entitled to a jury on the issue raised by the complaint and the original counterclaim already on file.

The Supreme Court of the United States vacated our earlier order, 1 and remanded the matter to us to be considered in the light of Dairy Queen, Inc. v. Wood, 1962, 369 U.S. 469 , 82 S.Ct. 894 , 8 L.Ed. 2d 44 . We have done this. This is a patent case.

Is this declaratory relief action, with its compulsory counterclaim, an action at law? If we examine the pleadings before us alone, they indicate that there could exist an issue at law, i. e., damage for infringement. No amount of damage is specified. There is no prayer for damages in any amount. We note, however, looking at substance and not form, that the petitioners herein have repeatedly represented to us on this appeal, and to the court…