Laws: Cases and Codes : U.S. Code : Title 28 : Section 1338
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U.S. Code as of:
01/19/04
Section 1338 - Notes
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).
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1295 of this title; title
35 sections 315, 317.
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