28 USC Sec. 1338                                            01/05/2009




    Sec. 1338. Patents, plant variety protection, copyrights, mask
      works, designs, trademarks, and unfair competition


      (a) The district courts shall have original jurisdiction of any
    civil action arising under any Act of Congress relating to patents,
    plant variety protection, copyrights and trademarks. Such
    jurisdiction shall be exclusive of the courts of the states in
    patent, plant variety protection and copyright cases.
      (b) The district courts shall have original jurisdiction of any
    civil action asserting a claim of unfair competition when joined
    with a substantial and related claim under the copyright, patent,
    plant variety protection or trademark laws.
      (c) Subsections (a) and (b) apply to exclusive rights in mask
    works under chapter 9 of title 17, and to exclusive rights in
    designs under chapter 13 of title 17, to the same extent as such
    subsections apply to copyrights.


    (June 25, 1948, ch. 646, 62 Stat. 931; Pub. L. 91-577, title III,
    Sec. 143(b), Dec. 24, 1970, 84 Stat. 1559; Pub. L. 100-702, title
    X, Sec. 1020(a)(4), Nov. 19, 1988, 102 Stat. 4671; Pub. L. 105-304,
    title V, Sec. 503(b)(1), (2)(A), Oct. 28, 1998, 112 Stat. 2917;
    Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title III, Sec. 3009(1)],
    Nov. 29, 1999, 113 Stat. 1536, 1501A-551.)


      Based on title 28, U.S.C., 1940 ed., Secs. 41(7) and 371(5) (Mar.
    3, 1911, ch. 231, Secs. 24, par. 7, 256, par. 5, 36 Stat. 1092,
      Section consolidates section 41(7) with section 371 (5) of title
    28, U.S.C., 1940 ed., with necessary changes in phraseology.
      Words "of any civil action" were substituted for "all suits at
    law or in equity" and "cases" to conform section to Rule 2 of the
    Federal Rules of Civil Procedure.
      Word "patents" was substituted for "patent-right" in said section
    371 (Fifth) of title 28, U.S.C., 1940 ed.
      Similar provisions respecting suits cognizable in district
    courts, including those of territories and possessions. (See
    section 34 of title 17, U.S.C., 1940 ed., Copyrights.)
      Subsection (b) is added and is intended to avoid "piecemeal"
    litigation to enforce common-law and statutory copyright, patent,
    and trade-mark rights by specifically permitting such enforcement
    in a single civil action in the district court. While this is the
    rule under Federal decisions, this section would enact it as
    statutory authority. The problem is discussed at length in Hurn v.
    Oursler (1933, 53 S.Ct. 586, 289 U.S. 238, 77 L.Ed. 1148) and in
    Musher Foundation v. Alba Trading Co. (C.C.A. 1942, 127 F.2d 9)
    (majority and dissenting opinions).
      1999 - Pub. L. 106-113 substituted "trademarks" for "trade-marks"
    in section catchline and subsec. (a) and substituted "trademark"
    for "trade-mark" in subsec. (b).
      1998 - Pub. L. 105-304, Sec. 503(b)(2)(A), inserted "designs,"
    after "mask works," in section catchline.
      Subsec. (c). Pub. L. 105-304, Sec. 503(b)(1), inserted ", and to
    exclusive rights in designs under chapter 13 of title 17," after
    "title 17".
      1988 - Pub. L. 100-702, Sec. 1020(a)(4)(B), amended section
    catchline generally, inserting "mask works," after "copyrights,".
      Subsec. (c). Pub. L. 100-702, Sec. 1020(a)(4)(A), added subsec.
      1970 - Pub. L. 91-577 inserted references to "plant variety
    protection" in section catchline and in subsecs. (a) and (b).
                     EFFECTIVE DATE OF 1970 AMENDMENT
      Amendment by Pub. L. 91-577 effective Dec. 24, 1970, see section
    141 of Pub. L. 91-577, set out as an Effective Date note under
    section 2321 of Title 7, Agriculture.
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