Software Specially Designed To Automate the Analysis of Geospatial Imagery Added to U.S. Export Control List

By Anna C. Domask, Ph.D.

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On January 6, 2020, the U.S. Department of Commerce announced an interim final rule pertaining to “software specially designed to automate the analysis of geospatial imagery.”  Software falls under this regulation when it: 1) “provides a graphical user interface” where a user indicates “positive and negative samples of an object of interest, 2) uses “scale, color, and rotational normalization of the positive samples” to reduce pixel variation, 3) “trains a Deep Convolutional Neural Network to detect the object of interest from the positive and negative samples,” and 4) “identifies objects in geospatial imagery using the trained Deep Convolutional Neural Network.”  Going forward, export of technology including such software will require an export license from the Department.  This new license requirement may impact patenting procedures for certain software and computer-implemented inventions.

As originally authorized by the Export Administration Act of 1979 and amended by the Export Control Reform Act of 2018, the U.S. Department of Commerce has the ability to impose a license requirement on the export of materials deemed by U.S. Department of Commerce, with the concurrence of the Departments of Defense and State, to have “at least a significant military or intelligence advantage to the United States or for foreign policy reasons.”

In the January 6, 2020 Federal Register, the Bureau of Industry and Security of the U.S. Department of Commerce announced changes to the Export Administration Regulations (EAR) to make certain items subject to the EAR and to impose a license requirement for the export and re-export of those items to all destinations, except Canada.  More specifically, the Department of Commerce announced an interim final rule pertaining to “software specially designed to automate the analysis of geospatial imagery.” In particular, software that falls under this regulation 1) “provides a graphical user interface” where a user indicates “positive and negative samples of an object of interest, 2) uses “scale, color, and rotational normalization of the positive samples” to reduce pixel variation, 3) “trains a Deep Convolutional Neural Network to detect the object of interest from the positive and negative samples,” and 4) “identifies objects in geospatial imagery using the trained Deep Convolutional Neural Network.”

Under this interim rule, to export or re-export such software to any country (except Canada), a company must receive a license from the Bureau of Industry and Security of the Department of Commerce and meet ongoing requirements such as recordkeeping.

As an interim final rule, the export of such software will be controlled beginning on January 20, 2020, while a public comment period proceeds in parallel.  This new license requirement may impact patenting procedures for certain software and computer-implemented inventions.  In addition, the new export license requirement is believed to be the first of its kind to cover Artificial Intelligence (AI) software and systems.