Public transparency regarding foreign adversary entities using intellectual property related to critical or emerging technology without a license

(a)

In general

Part I of the Export Control Reform Act of 2018 (50 U.S.C. 4811 et seq.) is amended by inserting after section 1758 the following:

1758A.

Public transparency regarding foreign adversary entities using intellectual property related to critical or emerging technology without a license

(a)

Identification

(1)

In general

The Secretary shall publish in the Federal Register a notice that identifies a foreign adversary entity if a majority of the members of the End-User Review Committee determines that the foreign adversary entity is using a patented invention or covered trade secret without a license, including if a majority of the members of the Committee determines that the foreign adversary entity— (A)is manufacturing or selling a product that incorporates a patented invention or covered trade secret without a license; (B)acquired a patented invention or covered trade secret through improper means, including— (i)theft; (ii)bribery; (iii)misrepresentation; (iv)breach of, or an inducement of a breach of, a duty to maintain secrecy; or (v)espionage; or (C)disclosed a patented invention or covered trade secret without express or implied consent. (2)

Identification by petition

(A)

In general

A United States person may submit a petition to the End-User Review Committee requesting the Committee to make a determination in accordance with the requirements of paragraph (1) for purposes of the Secretary publishing in the Federal Register a notice that identifies a foreign adversary entity in accordance with the requirements of paragraph (1) if the United States person— (i)has reason to believe that a foreign entity is using a patented invention or covered trade secret without a license; and (ii)is the owner of that patented invention or covered trade secret. (B)

Deadline

After the End-User Review Committee receives a petition submitted under subparagraph (A), the Committee shall make a determination with respect to the petition in accordance with the requirements of paragraph (1) not later than 90 days after the date on which the Committee receives the petition. (3)

Removal

(A)

In general

The Secretary shall publish in the Federal Register a subsequent notice with respect to a foreign adversary entity identified in the Federal Register under the process described in this section if the Secretary, in consultation with the other members of the End-User Review Committee, determines that there is prima facie evidence that the foreign adversary entity— (i)is no longer using a patented invention or covered trade secret without a license; or (ii)is using a patented invention or covered trade secret without a license, but— (I)has entered into an agreement for such use with the owner of the patented invention or covered trade secret; or (II)has entered into binding arbitration with the owner of the patented invention or covered trade secret to set the terms for such use. (B)

Removal by petition

If a foreign adversary entity identified in the Federal Register under the process described in this section for using a patented invention or covered trade secret without a license, or the owner of the patented invention or covered trade secret, believes that the foreign adversary entity meets the conditions described in clause (i) or (ii) of subparagraph (A), the foreign adversary entity or the owner of the patented invention or covered secret may petition the Secretary to have the Secretary publish in the Federal Register a subsequent notice with respect to the foreign adversary entity. (b)

Report required

Upon request from any of the appropriate congressional committees, the Secretary shall submit to the appropriate congressional committees a report that includes a list of all foreign adversary entities identified in the Federal Register under the process described in this section, including a written explanation of the reasons therefor. (c)

Definition of critical or emerging technology

In this section, the term critical or emerging technology includes any technology defined by the Under Secretary of Defense for Research and Engineering as a critical technology area as soon as practicable on or after the date of the enactment of this section. (d)

Other definitions

In this section: (1)

Appropriate congressional committees

The term appropriate congressional committees means— (A)the Committee on Banking, Housing, and Urban Affairs of the Senate; and (B)the Committee on Foreign Affairs and the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party of the House of Representatives. (2)

End-User Review Committee

The term End-User Review Committee means the End-User Review Committee described in Supplement No. 9 to part 748(1) of the Export Administration Regulations, or any successor regulation, as making decisions related to export controls. (3)

Foreign adversary

The term foreign adversary means— (A)the People’s Republic of China (including the Special Administrative Regions of China, including Hong Kong and Macau); (B)the Russian Federation; (C)the Republic of Cuba; (D)the Democratic People’s Republic of Korea; (E)the Islamic Republic of Iran; and (F)the Venezuelan regime under the leadership of Nicolas Maduro. (4)

Foreign adversary entity

The term foreign adversary entity— (A)means— (i)an individual who is a citizen or national (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a))) of a foreign adversary; (ii)an entity that is headquartered in, or organized under the laws of, or has its principal place of business in a foreign adversary; (iii)an entity subject to the control (as that term is defined in section 800.208 of subpart B of chapter VIII of title 31, Code of Federal Regulations, or any successor regulations) of any entity or combination of entities described in clause (i) or (ii); or (iv)any successor, subsidiary, or affiliate of any entity described in clause (i), (ii), or (iii); but (B)does not include any entity with respect to which— (i)a majority of the equity interest in the entity is owned by nationals of the United States and nationals of such countries (other than a foreign adversary) as are identified for purposes of this subparagraph pursuant to regulations prescribed by the Secretary; or (ii)its ultimate parent entity is an entity organized under the laws of, and headquartered in, the United States or its States, territories, or subdivisions. (5)

Owner of the patented invention or covered trade secret

The term owner of the patented invention or covered trade secret means— (A)in the case of a patented invention, the person or entity in whom or in which rightful legal or equitable title to, or license in, the applicable patent is reposed; and (B)in the case of a covered trade secret, the person or entity in whom or in which rightful legal or equitable title to, or license in, the applicable trade secret is reposed. (6)

Patented invention

The term patented invention means an invention— (A)related to critical or emerging technology; and (B)protected by a patent— (i)issued under title 35, United States Code; and (ii)with respect to which the rightful legal or equitable title to, or license in such patent is reposed in a United States person. (7)

Covered trade secret

The term covered trade secret means a trade secret (as such term is defined in section 1839 of title 18, United States Code)— (A)related to critical or emerging technology; and (B)with respect to which the rightful legal or equitable title to, or license in, the trade secret is reposed in a United States person.

(b)

Clerical amendment

The table of contents in section 2(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 and the table of contents at the beginning of title XVII of division A of such Act are each amended by inserting after the item relating to section 1758 the following new item:

Sec. 1758A. Public transparency regarding foreign adversary entities using intellectual property related to critical or emerging technology without a license.