Standard essential patents (SEPs) are patents that protect technologies that are indispensable for implementing a technical standard. If a manufacturer wants to comply with the standard —for example 4G, 5G, Wi-Fi, Bluetooth, video codecs or V2X in automobiles— it cannot “design around” those patents without failing to comply.

Essentiality arises within standardisation bodies (SSOs/SDOs) —ETSI, IEEE, 3GPP, ITU, ISO, among others— where companies contribute technology to define common specifications that ensure global interoperability. In exchange for having their technology incorporated into the standard, proprietors usually commit to license their SEPs under certain conditions that we call FRAND, which stands for Fair, Reasonable and Non-Discriminatory. It is a commitment that the SEP proprietor makes to the SSO and, in practice, to the market.

The balance FRAND seeks to strike is a delicate one: avoiding the proprietor’s hold-up (blocking markets with an SEP) without encouraging the implementer’s hold-out (using the technology without paying, hoping to litigate later).

SEPs are, therefore, a structural building block of the digital economy: they enable global markets for interoperable devices, but concentrate technological power in portfolios that can condition entire supply chains. This debate has traditionally been an issue for the telecoms sector with its 2G/3G/4G/5G, Wi-Fi, Bluetooth, NFC standards, etc., but today it is a critical issue for all sectors with ”connected things”: Consumer electronics, automotive, industry, energy, etc.

In particular, the expansion into automobiles and industry explains the increase in disputes and regulatory moves in recent months.

Situation in the US, Asia and the EU

In the United States, at the end of 2025, the United States Patent and Trademark Office (USPTO) announced the creation of the Standard-Essential Patent (SEP) Working Group, a cross-functional team reporting directly to the Director of the USPTO. The group is co-chaired by senior legal officials from the Office and was created with a clear narrative: to strengthen an ecosystem that, according to the USPTO itself, had become ‘hostile’ to innovators due to unclear rules and downward pressure on licence fees. As a first tangible initiative, in January 2026 the USPTO has launched the Standards Participation and Representation Kudos (SPARK) pilot programme, which grants a limited number of acceleration certificates (to speed up the review of applications or appeals) to entities that participate significantly in standardisation.

In Japan, in June 2025, the Tokyo District Court issued what is considered to be the first SEP-based injunction in Japan in Pantech v. Google, ordering the cessation of sales of the Pixel 7. In this case, the Court distinguishes between two phases:

• a negotiation phase (where methodological disagreements are tolerated), and
• a conciliation phase supervised by the court, with methodology and information requirements.

The turning point has been the lack of cooperation from the implementer in the supervised phase (including the refusal to provide sales data needed to verify proposals). Japan ”opens the door” to the application of injunctive relief in the case of SEP infringement, but with a demanding standard that is closely linked to procedural conduct.

In turn, China has become a central forum for SEP disputes because of its willingness to set global royalties and its use of procedural tools such as anti-suit injunctions (ASIs). This has generated friction with other jurisdictions and has led to an international trade dimension: the EU took China to the WTO over practices related to setting global royalties, and the TRIPS compatibility debate has become part of the geopolitical chessboard of SEPs.

In 2023, the European Commission presented an ambitious proposal for a Regulation on SEPs and FRAND (transparency, registration, verification of essentiality and specific procedures) promoted by the European automotive industry. Following strong opposition from industry and Member States, the proposal was withdrawn.

The political reading is two-fold: on the one hand, the need for more transparency and predictability in the SEP market is recognised. On the other hand, there is caution about the creation of mandatory procedures that could make licensing more expensive and slower, affecting European competitiveness.

The result is a period of rethinking. It is plausible that the EU will return with a more modular reform (registration, reporting and best practices) that is less interventionist in economic negotiations. At the same time, the Commission is using trade (WTO) to address the extraterritorial effects of SEP litigation.

The challenge of the next decade will be to preserve the incentive to contribute technology to standards —the engine of the digital economy— without allowing blocking power or strategic procrastination to distort entire markets. A large part of global technological competitiveness is at stake in this balance, and Europe must make its move in the coming months.

The difficulty lies in managing the interests of all parties, both technology providers and users. Once again, patents are at the heart of the strategy.

Written by: Luis Ignacio Vicente del Olmo. Strategic Advisor at PONS IP.