§ 1338. — Patents, plant variety protection, copyrights, mask works, designs, trademarks, and unfair competition.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1338]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 85--DISTRICT COURTS; JURISDICTION
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.)
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.
Section Referred to in Other Sections
This section is referred to in section 1295 of this title; title 35
sections 315, 317.
