United States District Court, Northern District of Illinois, E.D
July 2, 1951
DAVIES ET AL.
ALLIED INDUSTRIAL PRODUCTS, INC.
The opinion of the court was delivered by: LA Buy, District Judge.
Complaint herein alleges plaintiff to be the owner by
assignment of certain letters patent together with rights
thereunder to sue and recover damages and profits resulting from
past and future infringements; that defendant will continue to
infringe unless enjoined by this court; wherefore, plaintiff
demands a preliminary and final injunction against further
infringement, an accounting for profits and damages, an
assessment of costs against the defendant and allowance of
attorney's fees. Defendant has filed answer denying infringement
and alleging said letters patent to be invalid. Plaintiff has
filed a jury demand on the issue of validity and infringement and
defendant has moved to strike said jury demand on the ground that
said action is an equitable claim and plaintiff is not entitled
to a jury trial as a matter of right.
As was stated in Bellavance v. Plastic-Craft Novelty Co.,
D.C.Mass. 1939, 30 F. Supp. 37, 38:
"The remedies open to one for the infringement of a patent are
wholly statutory. The statutes afford two remedies — first, an
action on the case to recover damages for infringement, * * * 35
67. Such an action, of course, is one at law and would entitle
the parties to a jury trial. The other remedy is by proceeding
under R.S. § 4921, 35 U.S.C.A. § 70, which gives the court `power
to grant injunctions according to the course and principles of
courts of equity, to prevent the violation of any right secured
by patent * * *.'
"In proceedings under this latter statute the complainant may
ask for damages already sustained, as well as for injunctive
relief. Clearly, it is under this * * * statute [providing
equitable relief] that the plaintiff has proceeded. It has long
been settled law that where suit is brought under the statute
providing equitable relief, the fact that the plaintiff also
seeks damages for past infringement will not entitle the
plaintiff to a jury trial on the issue of damages. Barton v.
Barbour, 104 U.S. 126, 133, 26 L.Ed. 672.
Reading the complaint with the above principles in mind, the
court is of the opinion the plaintiff has formed his complaint
seeking relief under the equitable proceeding provided by the
statute. While the allegations concerning the assignment allege
also assignment of the right to sue and recover for damages, the
relief he requests is injunctive and consequently there inures to
him no right to trial by jury pursuant to the Seventh Amendment
of the Constitution. For these reasons, the defendant's motion to
strike the jury demand is sustained.
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