The Technology That Cannot Leave the Room: Export Controls, Deemed Exports, and the Foreign Filing License
By Casey Scott McKay ·
Export control law reaches intellectual property in two ways most IP lawyers do not expect: showing controlled technology to a foreign national inside the United States is an export, and filing a patent application abroad without a license can invalidate the patent. This article works both. It sets out the EAR and ITAR jurisdictional split, how to classify technology, and what the fundamental research and published information exclusions actually cover. It explains the deemed export rule, why hiring and collaboration decisions become export decisions, and how the immigration anti-discrimination rules constrain the screening a company would otherwise do. It then works the foreign filing license under Section 184, the invalidity consequence under Section 185, and secrecy orders. It closes with the transactional overlay.
IP and Technology > IP and IT in Corporate Transactions | Article | Published 11 December 2024 - Updated 26 February 2026 | Casey Scott McKay - marksy.us
Summary. Export control law reaches intellectual property in two ways most IP lawyers do not expect: showing controlled technology to a foreign national inside the United States is an export, and filing a patent application abroad without a license can invalidate the patent. This article works both. It sets out the EAR and ITAR jurisdictional split, how to classify technology, and what the fundamental research and published information exclusions actually cover. It explains the deemed export rule, why hiring and collaboration decisions become export decisions, and how the immigration anti-discrimination rules constrain the screening a company would otherwise do. It then works the foreign filing license under Section 184, the invalidity consequence under Section 185, and secrecy orders. It closes with the transactional overlay.
Keywords: export controls · EAR · ITAR · deemed exports · foreign persons · technology release · fundamental research exclusion · published information · Commerce Control List · ECCN classification · license exceptions · entity list · end use controls · OFAC sanctions · foreign filing license · section 184 · secrecy orders · invalidity for unlicensed filing · encryption controls · CFIUS and technology transfer
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