28 U.S. Code § 1338 - Patents, plant variety protection, copyrights, mask works, designs, trademarks, and unfair competition
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).
2011—Subsec. (a). Pub. L. 112–29 substituted “No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights. For purposes of this subsection, the term ‘State’ includes any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.” for “Such jurisdiction shall be exclusive of the courts of the states in patent, plant variety protection and copyright cases.”
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).
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