When Export Controls Meet IP: Lessons From Westinghouse v. KEPCO

The Hightlights

1. Interaction Between IP Enforcement and Export-Control Rules: Westinghouse v. KEPCO shows how federal export‑control rules, such as DOE Part 810, can influence the strategy of an IP owner seeking to oversee or limit the transfer of licensed technical information to foreign entities.
2. Limits of Using Regulatory Obligations as a Basis for Court Relief:The court's analysis shows that obligations established under DOE Part 810 did not provide Westinghouse with an independent right to seek declaratory relief, highlighting that regulatory frameworks do not automatically create private causes of action.
3. Importance of Aligning Contract Rights with Regulatory Compliance: The dispute demonstrates that IP issues involving controlled technologies may benefit from coordinated evaluation of license agreements, arbitration provisions, and applicable regulatory regimes rather than relying solely on any one enforcement pathway.

Intellectual property rights are traditionally enforced through private legal mechanisms. But when the subject matter of those rights involves sensitive technologies—like nuclear energy—the landscape can shift. The Westinghouse Electric Co. LLC v. Korea Electric Power Corp. (hereinafter Westinghouse v. KEPCO) dispute offers a vivid illustration of how export control regulations can complicate conventional IP enforcement strategies.

The Collision Course: IP Rights vs. Export Control Regulations

At the heart of the case lies 10 C.F.R. Part 810, a set of regulations administered by the U.S. Department of Energy (DOE)¹ that governs the export of nuclear technology.² The regulations aim to prevent unauthorized sharing of U.S.-origin reactor designs and technical data with foreign entities. Importantly, Part 810 applies not only to direct exports from the United States but also to retransfers of U.S.-licensed technology by foreign licensees to third countries.³

Westinghouse had licensed its System 80+ nuclear reactor design to Korea Electric Power Corporation (KEPCO) and its subsidiary Korea Hydro & Nuclear Power (KHNP) in the late 1990s.⁴ The Korean entities later developed their own reactor design, the APR1400, which Westinghouse contended was derived from the licensed technology and subject to Part 810 restrictions.⁵ When KEPCO and KHNP began pursuing reactor export deals with countries like Poland, Saudi Arabia, and the Czech Republic, Westinghouse sought judicial intervention to ensure compliance.⁶

The Legal Strategy—and Its Limits

Faced with the prospect of its licensed nuclear technology being exported without its involvement or approval, Westinghouse sought judicial relief under the Declaratory Judgement Act,⁷ asking the court to declare that the Korean entities' planned transfers of APR1400 reactor design information to third countries were subject to the requirements of 10 C.F.R. Part 810.⁸ Westinghouse argued that, because it could be held liable by the U.S. Department of Energy for unauthorized retransfers of its technology, it should be permitted to seek declaratory and injunctive relief to prevent such transfers.⁹ In effect, Westinghouse sought to transform a regulatory compliance concern into a private enforcement right.

In its pleadings, Westinghouse expressly disclaimed any intent to enforce its contractual rights under the 1997 license agreement, stating that its request for declaratory relief was "separate and apart from the parties' 1997 license agreement or disputes under the license agreement."¹⁰ Accepting this characterization, the court did not address the question of arbitration and instead focused solely on "whether [Westinghouse] ha[d] stated a claim under the [Declaratory Judgment Act]."¹¹ Concluding that Westinghouse lacked a "judicially remediable right," the court dismissed the case.¹²

This case highlights that regulatory obligations don't automatically create a private cause of action for private enforcement. IP litigators must assess whether the relevant statutes offer such a right or whether alternative paths—like contract claims, arbitration, or regulatory engagement—will be more effective.

Conclusion

The Westinghouse v. KEPCO case underscores the complexities that arise when intellectual property enforcement intersects with export control regulations. For IP litigators and counsel advising clients in regulated industries, it offers a timely reminder: protecting proprietary technology requires more than legal entitlement—it demands strategic foresight, regulatory fluency, and a coordinated approach that spans both contracts and regulatory compliance.

Footnotes

1. 10 C.F.R. § 810.1.

2. § 810.2(b).

3. § 810.2(a).

4. Westinghouse Elec. Co. LLC v. Korea Elec. Power Corp., 694 F. Supp. 3d 48, 50 (D.D.C. 2023), appeal held in abeyance, No. 23-7130, 2025 WL 384451 (D.C. Cir. Jan. 31, 2025), and dismissed, No. 23-7130, 2025 WL634795 (D.C. Cir. Feb. 25, 2025).

5. Id.

6. Id. at 50-51.

7. See id. at 49

8. Id.

9. Id. at 50-51

10. Id.at 51.

11. Id.

12. Id.at 54.

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