Title 28 — Judiciary and Judicial Procedure
Part IV · Chapter 85 — District Courts; Jurisdiction
§ 1338. Patents, plant variety protection, copyrights, mask works, designs, trademarks, and unfair competition
Statutory text
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. 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.
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.
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.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Title 28, United States Code, section —
Pub. L. 80–646 · 62 Stat. 869
Enacted · 28 U.S.C. § 1338
June 25, 1948, ch. 646, 62 Stat. 931
Source evidence
Code source credit
June 25, 1948, ch. 646, 62 Stat. 931Plant Variety Protection Act
Pub. L. 91–577 title III § 143(b) · 84 Stat. 1542
Inserted · 28 U.S.C. § 1338
Pub. L. 91–577 inserted references to “plant variety protection” in section catchline and in subsecs. (a) and (b)
Source evidence
Code amendment note
Pub. L. 91–577 inserted references to “plant variety protection” in section catchline and in subsecs. (a) and (b).Enacted provision · exact public law section
(b) In section 1338 after “Patents” in the heading, after “patents” 62 Stat. 931. and after “patent” (both occurrences) insert “, plant variety protection”.Judicial Improvements and Access to Justice Act
Pub. L. 100–702 § 1020(a)(4)(B) · 102 Stat. 4642
Amended · 28 U.S.C. § 1338
Pub. L. 100–702, § 1020(a)(4)(B), amended section catchline generally
Inserted · 28 U.S.C. § 1338
Pub. L. 100–702, § 1020(a)(4)(B), inserting “mask works,” after “copyrights,”
Source evidence
Code amendment note
Pub. L. 100–702, § 1020(a)(4)(B), amended section catchline generally, inserting “mask works,” after “copyrights,”.Enacted provision · exact public law section
(B) The section heading for section 1338 is amended to read as follows: “§ 1338. Patents, plant variety protection, copyrights, mask works, trade-marks, and unfair competition”.Judicial Improvements and Access to Justice Act
Pub. L. 100–702 § 1020(a)(4)(A) · 102 Stat. 4642
Added · 28 U.S.C. § 1338(c)
Pub. L. 100–702, § 1020(a)(4)(A), added subsec. (c)
Source evidence
Code amendment note
Subsec. (c). Pub. L. 100–702, § 1020(a)(4)(A), added subsec. (c).Enacted provision · exact public law section
(A) Section 1338 is amended by adding at the end the following: “(c) Subsections (a) and (b) apply to exclusive rights in mask works under chapter 9 of title 17 to the same extent as such subsections apply to copyrights.”.Vessel Hull Design Protection Act
Pub. L. 105–304 § 503(b)(2)(A) · 112 Stat. 2860
Inserted · 28 U.S.C. § 1338
Pub. L. 105–304, § 503(b)(2)(A), inserted “designs,” after “mask works,” in section catchline
Source evidence
Code amendment note
Pub. L. 105–304, § 503(b)(2)(A), inserted “designs,” after “mask works,” in section catchline.Enacted provision · exact public law section
(A) The section heading for section 1338 of title 28, United States Code, is amended by inserting “designs,” after “mask works,”.Vessel Hull Design Protection Act
Pub. L. 105–304 § 503(b)(1) · 112 Stat. 2860
Inserted · 28 U.S.C. § 1338(c)
Pub. L. 105–304, § 503(b)(1), inserted “, and to exclusive rights in designs under chapter 13 of title 17,” after “title 17”
Source evidence
Code amendment note
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”.Enacted provision · exact public law section
(1) Section 1338(c) of title 28, United States Code, is amended by inserting “, and to exclusive rights in designs under chapter 13 of title 17,” after “title 17”.District of Columbia Appropriations Act, 2000
Pub. L. 106–113 div. B § 1000(a)(9)(tIII)(s3009)(1) · 113 Stat. 1501
Substituted · 28 U.S.C. § 1338
Pub. L. 106–113 substituted “trademarks” for “trade-marks” in section catchline and subsec. (a)
Substituted · 28 U.S.C. § 1338
Pub. L. 106–113 substituted “trademark” for “trade-mark” in subsec. (b)
Source evidence
Code amendment note
Pub. L. 106–113 substituted “trademarks” for “trade-marks” in section catchline and subsec. (a) and substituted “trademark” for “trade-mark” in subsec. (b).Pub. L. 112–29 § 19(a) · 125 Stat. 331
Substituted · 28 U.S.C. § 1338(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.”
Source evidence
Code amendment note
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.”Enacted provision · exact public law section
(a) State Court Jurisdiction.— Section 1338(a) of title 28, United States Code, is amended by striking the second sentence and inserting the following: “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.”.Effective date note
Amendment by Pub. L. 112–29 applicable to any civil action commenced on or after Sept. 16, 2011, see section 19(e) of Pub. L. 112–29, set out as a note under section 1295 of this title.
7 of 10 references resolved to an enrolled provision · 3 partial
Notes
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).
Editorial Notes
Amendments1970–2011 · 5 rounds
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).
Statutory Notes and Related Subsidiaries
Effective Date of 2011 Amendment
Amendment by Pub. L. 112–29 applicable to any civil action commenced on or after , see section 19(e) of Pub. L. 112–29, set out as a note under section 1295 of this title.
Effective Date of 1970 Amendment
Amendment by Pub. L. 91–577 effective , see section 141 of Pub. L. 91–577, set out as an Effective Date note under section 2321 of Title 7, Agriculture.
Credits
1948–2011 · 6 acts
- 1948June 25, 1948, ch. 646, 62 Stat. 931
- 1970Pub. L. 91–577, title III, § 143(b), , 84 Stat. 1559
- 1988Pub. L. 100–702, title X, § 1020(a)(4), , 102 Stat. 4671
- 1998Pub. L. 105–304, title V, § 503(b)(1), (2)(A), , 112 Stat. 2917
- 1999Pub. L. 106–113, div. B, § 1000(a)(9) [title III, § 3009(1)], , 113 Stat. 1536, 1501A–551
- 2011Pub. L. 112–29, § 19(a), , 125 Stat. 331.
Show as published
(June 25, 1948, ch. 646, 62 Stat. 931; Pub. L. 91–577, title III, § 143(b), , 84 Stat. 1559; Pub. L. 100–702, title X, § 1020(a)(4), , 102 Stat. 4671; Pub. L. 105–304, title V, § 503(b)(1), (2)(A), , 112 Stat. 2917; Pub. L. 106–113, div. B, § 1000(a)(9) [title III, § 3009(1)], , 113 Stat. 1536, 1501A–551; Pub. L. 112–29, § 19(a), , 125 Stat. 331.)