Published information, fundamental research and patents

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1. Information outside the EAR

Under the Export Administration Regulations (EAR), some information and software is not subject to the EAR at all (15 CFR 734.3(b)(3)). That includes material that is published, material that arises during or results from fundamental research, and patent and standards-related material. The rules for each are set out in sections 734.7, 734.8 and 734.10 (15 CFR 734.2(a)(1)). The Bureau of Industry and Security (BIS) website gives practical examples, which are illustrative rather than comprehensive.

2. When technology or software is published

Unclassified technology or software is published, and so not subject to the EAR, when it has been made available to the public without restrictions on further dissemination (15 CFR 734.7(a)). The rule gives five examples. One is subscriptions available without restriction to anyone who wants to obtain or buy the information (15 CFR 734.7(a)(1)). Another is libraries or other public collections open to the public, from which tangible or intangible documents can be obtained (15 CFR 734.7(a)(2)).

A third is unlimited distribution at a conference, meeting, seminar, trade show or exhibition generally accessible to the interested public (15 CFR 734.7(a)(3)). A fourth is public dissemination in any form, including posting on publicly available internet sites (15 CFR 734.7(a)(4)).

The fifth covers submissions made with the intention that the material will be made public if accepted for publication or presentation (15 CFR 734.7(a)(5)). The submission may be a written composition, manuscript, presentation, computer-readable dataset, formula, imagery, algorithm or other representation of knowledge. It counts when sent to domestic or foreign co-authors, editors or reviewers of journals, magazines, newspapers or trade publications (15 CFR 734.7(a)(5)(i)). It also counts when sent to researchers conducting fundamental research, or to organizers of open conferences or other open gatherings (15 CFR 734.7(a)(5)(ii), 15 CFR 734.7(a)(5)(iii)).

3. Two exceptions to the published rule

Published encryption software under Export Control Classification Number (ECCN) 5D002 remains subject to the EAR (15 CFR 734.7(b)). The exception is publicly available encryption object code under 5D002 whose corresponding source code meets the criteria in section 742.15(b).

Certain firearms software and technology also remains subject to the EAR (15 CFR 734.7(c)). It is software or technology for producing a firearm, or a firearm frame or receiver, under ECCNs 0A501, 0A506, 0A507 or 0A509. The rule applies when it is posted online in an electronic format, such as AMF or G-code. The format must be ready for insertion into computer numerically controlled machine tools, additive manufacturing equipment or any other equipment that uses it to produce the firearm, frame or receiver.

4. Fundamental research

Technology or software that arises during, or results from, fundamental research and is intended to be published is not subject to the EAR (15 CFR 734.8(a)). Fundamental research means research in science, engineering or mathematics whose results ordinarily are published and shared broadly within the research community (15 CFR 734.8(c)). The researchers must not have accepted restrictions for proprietary or national security reasons.

The exclusion does not cover technology or software subject to the EAR that is released to conduct fundamental research (15 CFR 734.8, note 1 to paragraph (a)). Information released to researchers can instead be published under section 734.7(a)(5)(ii), if submitted with the intention that it will be made public if accepted for publication or presentation. A researcher, institution or company may decide to restrict or protect research results (15 CFR 734.8, note 2 to paragraph (a)). Once that decision is made, the restricted or proprietary material becomes subject to the EAR if it falls within section 734.3(a).

5. Prepublication review

Research results are intended to be published to the extent the researchers are free to publish them without restriction (15 CFR 734.8(b)). Results subject to prepublication review are still intended to be published in three cases. One is review conducted solely to make sure publication would not compromise patent rights, if it causes no more than a temporary delay (15 CFR 734.8(b)(1)).

Another is review by a research sponsor solely to make sure publication would not inadvertently reveal proprietary information the sponsor gave the researchers (15 CFR 734.8(b)(2)). The third covers scientists or engineers working for a Federal agency or a Federally Funded Research and Development Center (FFRDC) (15 CFR 734.8(b)(3)). There, review within any appropriate system the agency or FFRDC has set up to control the release of information qualifies.

Results are not intended to be published while researchers accept restrictions on publication (15 CFR 734.8, note 1 to paragraph (b)). They qualify once all such restrictions have expired or been removed. Research voluntarily put through U.S. government prepublication review qualifies when released consistent with that review and any resulting controls (15 CFR 734.8, note 2 to paragraph (b)).

6. Government-funded research with security controls

Results of U.S. government funded research that carries specific national security controls can still qualify as fundamental research (15 CFR 734.8, note 3 to paragraph (b)). All government-imposed national security controls must have been satisfied, and the researchers must be free to publish without restriction. Examples of such controls include government prepublication review with a right to withhold permission to publish. Others are limits on sharing information before publication with non-U.S. citizens or other categories of persons, or on their taking part in the research. A general reference to export control laws, or a general reminder that the government may classify, is not a specific national security control.

7. Patents

Technology is not subject to the EAR when it is contained in a patent or an open, published patent application available from or at any patent office (15 CFR 734.10(a)(1)). The same applies to a published patent or application prepared wholly from foreign-origin technology and sent to the foreign inventor to be executed and returned for U.S. filing (15 CFR 734.10(a)(2)). It also applies to applications authorized for foreign filing under the Patent and Trademark Office rules in 37 CFR part 5 (15 CFR 734.10(a)(3)).

A further case covers an application sent abroad before, or within six months after, a U.S. application is filed (15 CFR 734.10(a)(4)). It must be sent to obtain the signature of an inventor who was in the United States when the invention was made, or who is a co-inventor with a U.S. resident.

8. Standards-related activity

A standards-related activity includes developing, adopting or applying a standard, including conformity assessment procedures (15 CFR 734.10(b)). Technology or software released for such an activity is not subject to the EAR if it meets one condition in each of two lists. Under the first, it must be EAR99, controlled only for anti-terrorism reasons, or within specified encryption or 9x515 entries (15 CFR 734.10(b)(1)). Under the second, the activity must be for a published standard, or carried out intending the standard to be published (15 CFR 734.10(b)(2)). The wider scope rules are covered in what is subject to the EAR.

Key terms

Published	Made available to the public without restriction on further dissemination.
Fundamental research	Research whose results are ordinarily published and shared broadly, without accepted restrictions.
Prepublication review	Review before release that may still leave results intended to be published.
FFRDC	A Federally Funded Research and Development Center.
Standards-related activity	Work to develop, adopt, apply or maintain a standard.

Every statement above links to the document behind it. The full source list for this piece is on the sources page.

This page describes public United States government programs for general information. It is not legal, regulatory or procurement advice, and it does not address the facts of any particular case.

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