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To: Jim Lurgio who wrote (23063)	2/19/1999 2:14:00 AM
From: JGoren	Respond to of 152472

Trial or portion thereof might be before a jury. I got knocked off of Lexis at 2 a.m. so I didn't go through other cases, but here is a quote from a decision that indicates jury trial is possible in patent infringement case: "It has generally been recognized that the right to a jury trial in a patent infringement action depends on whether the form of the action is legal or equitable. Kennedy v. Lakso, 414 F.2d 1249 (3d Cir. 1969). This in turn depends in large part on whether the relief requested is legal or equitable in nature. The plaintiff here is seeking an injunction, assessment of interest, costs and attorneys' fees, and treble damages, all remedies which are equitable in nature. In addition he seeks an accounting for all damages due from the defendant. The relief requested by the plaintiff is very similar to that sought by the complainant in Dairy Queen v. Wood, 369 U.S. 469, 82 S. Ct. 894, 8 L. Ed. 2d 44 (1962), a case involving trademark infringement. Although the Dairy Queen plaintiff sought permanent injunctive relief and an accounting of monetary damages, the Supreme Court held that the claim was legal in nature. The Court stated that a claim for money damages was a legal one whether characterized as a contract claim or a trademark infringement claim. "Under the reasoning of Dairy Queen, because the claim for money judgment is legal in nature, the right to a jury trial on that claim is not lost by combining it with a claim for injunctive relief." Tights, Inc. v. Stanley, 441 F.2d 336, 343-344 (4th Cir. 1971); Swofford v. B & W, Inc., 336 F.2d 406 (5th Cir. 1964). The present action, then must be considered as legal in nature. The complexity of this action is not sufficient to invoke the equity jurisdiction of the Court as to legal issues. While the disputed patent certainly involves a complex mechanical device there are no abstract scientific theories or chemical compounds to confuse the jury. There is support for defendant's argument that the practical limitations of a jury weigh against its use in patent litigation. While the Court recognizes the validity of this argument for especially complex patent litigation, it is not convinced of its applicability to the present action. The workings and abilities of the tree shear may be demonstrated to and understood by the average juror. Although the present litigation is complex and the plaintiff does request a substantial amount of equitable relief, the action must be considered a legal one. In an action at law for patent infringement the jury decides the question of validity. Swofford v. B & W, Incorporated, 336 F.2d 406, 411 (5th Cir. 1964); Tights, Inc. v. Stanley, 441 F.2d 336 (4th Cir. 1971). The defendant's motion to strike the plaintiff's demand for jury trial must be denied."