CITE
28 USC Sec. 1338 01/05/2009
EXPCITE
TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
PART IV - JURISDICTION AND VENUE
CHAPTER 85 - DISTRICT COURTS; JURISDICTION
HEAD
Sec. 1338. Patents, plant variety protection, copyrights, mask
works, designs, trademarks, and unfair competition
STATUTE
(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.
SOURCE
(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.)
HISTORICAL AND REVISION NOTES
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,
1160).
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).
AMENDMENTS
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.
(c).
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.