In Re Sgs-thomson Microelectronics, Inc., Petitioner, 61 F.3d 862 (Fed. Cir. 1995)

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

ORDER

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,

UPON CONSIDERATION THEREOF, it is

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.