Export controls on advanced computing chips to China change where models get trained, and where to file

2022-10-07US Policy

Implementation of Additional Export Controls: Certain Advanced Computing and Semiconductor Manufacturing Items; Supercomputer and Semiconductor End Use; Entity List Modification, 87 Fed. Reg. 62186 (Oct. 13, 2022) (interim final rule of the Bureau of Industry and Security, released Oct. 7, 2022; effective in stages Oct. 7, Oct. 12 and Oct. 21, 2022)

The Bureau of Industry and Security issued an interim final rule adding new Export Control Classification Numbers to the Commerce Control List: 3A090 for high-performance integrated circuits defined by processing performance and aggregate interconnect transfer rate, 4A090 for computers, assemblies and components containing them, 3B090 for advanced semiconductor manufacturing equipment, and related software and technology. A new regional stability license requirement in Section 742.6(a)(6) of the Export Administration Regulations applies to exports, reexports and transfers of those items to or within China, and under Section 742.6(b)(10) "Most license applications for items controlled under this RS control will be reviewed under a presumption of denial." Section 744.23 adds end-use controls on supercomputers and on fabrication of advanced logic and memory in China, and Section 744.6 requires a license for United States persons to support development or production of such integrated circuits in China. A supercomputer is 100 or more double-precision petaflops or 200 or more single-precision petaflops within a 41,600 cubic foot envelope. The preamble states that the items "are being used by the PRC for its military modernization efforts," including "through artificial intelligence (AI) applications," and that China "has announced its intent to become the world leader in AI by 2030." The license requirements took effect October 7, the United States person rule October 12 and the remainder October 21, 2022.

What it changesThe patent consequence runs through where inventions get made. A company whose machine learning researchers sit in China can no longer be supplied from the United States with the accelerators that large-scale training runs on, so training work and the inventions it produces will move, and the first-filing rules follow the inventor: an invention made in the United States needs the Office's foreign filing license under Section 184 of Title 35 of the United States Code before any filing abroad, and an invention made in China needs the confidentiality examination of the China National Intellectual Property Administration before it leaves. The filing checklist for every machine learning disclosure should record where each inventor did the work and which clearance applies. The application itself is outside the Export Administration Regulations once the Office authorizes foreign filing (Section 734.10(a)(3) of Title 15 of the Code of Federal Regulations), so for an application describing controlled accelerators, interconnects or training clusters, confirm the foreign filing license before filing abroad.

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Burbage Law is the practice of Jon Burbage, a registered patent attorney. 342 United States patents have issued from applications he wrote; the full list is on the Patents page. More about Jon Burbage.

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