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

Historical and Revision Notes

Based on title 28, U.S.C., 1940 ed., §§41(7) and 371(5) (Mar. 3, 1911, ch. 231, §§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, §503(b)(2)(A), inserted "designs," after "mask works," in section catchline.

Subsec. (c). Pub. L. 105–304, §503(b)(1), inserted ", and to exclusive rights in designs under chapter 13 of title 17," after "title 17".

1988-Pub. L. 100–702, §1020(a)(4)(B), amended section catchline generally, inserting "mask works," after "copyrights,".

Subsec. (c). Pub. L. 100–702, §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.