61 F.3d 862

61 F.3d 862

35 U.S.P.Q.2d 1639


Misc. No. 95-M428.

United States Court of Appeals,
Federal Circuit.

July 25, 1995.

Appealed from the United States District Court for the Central District of California; Manuel L. Real, Judge.

David E. Killough, Kenneth R. O’Rourke, Glenn W. Trost and John A. Crose, Jr., O’Melveny & Myers, Los Angeles, CA, filed a suggestion for rehearing in banc of Order Granting a Writ of Mandamus for respondent. Also on the Suggestion for Rehearing were Samuel H. Weiner and Stephen A. Soffen, Ostrolenk, Faber, Gerb & Soffen, New York City.

David T. Pritikin, Constantine L. Trela, Thomas D. Rein and Bruce M. Zessar, Sidley & Austin, Chicago, IL, filed an answer to respondent’s suggestion for rehearing in banc for petitioner.


Prior Report: Fed.Cir., 60 F.3d 839.



A suggestion for rehearing in banc having been filed by the RESPONDENT, and a response thereto having been invited by the court and filed by the PETITIONER, and the matter having first been referred as a petition for rehearing to the panel that heard the appeal, and the suggestion for rehearing in banc and response were thereafter circulated to judges on the panel that heard the appeal and to the remaining active judges authorized to request a poll whether to rehear the appeal in banc, and a poll having been requested, taken, and failed,



ORDERED that the petition for rehearing be, and the same hereby is, DENIED, and it is further


ORDERED that the suggestion for rehearing in banc be, and the same hereby is, DECLINED.


Circuit Judge NIES has filed a dissenting opinion, in which Chief Judge ARCHER and Circuit Judge PLAGER join.


NIES, Circuit Judge, dissenting from Order declining the suggestion for rehearing in banc, with whom ARCHER, Chief Judge, and PLAGER, Circuit Judge, join.


International Rectifier sued SGS-Thomson for patent infringement. International Rectifier sought only an injunction barring future infringement. SGS-Thomson counterclaimed for a declaratory judgment of noninfringement, invalidity, and unenforceability, and demanded a jury trial. The district court granted International Rectifier’s motion to strike the jury trial demand. By a petition for a writ of mandamus, SGS-Thomson sought an order for a jury trial on its declaratory judgment counterclaims. On April 25, 1995, a panel of this court issued an Order granting SGS-Thomson’s petition in part, directing the court to reinstate SGS-Thomson’s jury demand, except on the equitable count of unenforceability. This court now denies International Rectifier’s request for rehearing in banc.


The panel relied on the controlling precedent of In re Lockwood, 30 USPQ2d 1292 (Fed.Cir.1994), vacated, reh’g granted, and reh’g in banc denied, 50 F.3d 966, 33 USPQ2d 1406, 33 USPQ2d 1907 (Fed.Cir.1995) (Nies, J., dissenting from denial of reh’g in banc ), cert. granted sub nom. American Airlines, Inc. v. Lockwood, — U.S. —-, 115 S.Ct. 2274, 132 L.Ed.2d 279 (1995). I dissent from the denial of in banc here for the reasons set forth in my Lockwood dissent.