The New FRAND Landscape: Three Shifts Redefining SEP Licensing Strategy

Standard-essential patent (SEP) licensing has never been a quiet corner of the intellectual property (IP) discipline. However, significant changes over the past 18 months have fundamentally altered the competitive landscape. Shawn Ambwani, Senior Vice President & Head of Unified Patents, an Anaqua Company, examines how these developments are reshaping FRAND strategy and what they mean for licensors and implementers. In early 2025, the European Commission’s withdrawal of the proposed European Union SEP Regulation removed the most serious attempt at a regulatory framework for SEP transparency and fair, reasonable and non-discriminatory (FRAND) rate-setting. As a result, courts, licensors and implementers continue to serve as the de facto rule-setters for SEP licensing. Three trends now define how the next few years of FRAND disputes and licensing negotiations will play out.

With no EU-level rule coming, national and supranational courts are competing openly for the role of global rate-setter. The UK Court of Appeal has recharacterized interim license declarations as "jurisdictionally neutral" relief, demonstrating English courts' willingness to set worldwide FRAND terms. 

The Unified Patent Court and German national courts have pushed back with anti-interim-license injunctions – Mannheim attached a €50 million penalty per breach – while UK courts respond with anti-anti-suit injunctions of their own. Munich granted Europe's first SEP-based preliminary injunction in late 2025, and Germany's Federal Court of Justice has since upheld the strict "willingness" standard, declining to refer the question to the Court of Justice of the European Union (CJEU). Brazil has entered the licensing conversation with a German-inspired framework of its own, and US policy has swung toward enforcement, with a new USPTO SEP working group. 

The practical consequence is that the same dispute can now produce conflicting orders in three or four forums simultaneously. Forum selection, timing and procedural conduct – not just portfolio strength – increasingly determine outcomes. For implementers, a misstep in one jurisdiction like an inadequate security deposit in Germany or a delayed counteroffer anywhere can cascade globally.

The handset wars are largely settled. The growth market is everything else. Automotive, IoT, smart energy, medical devices and video streaming are absorbing licensing programs built for smartphone economics. Many of the new targets have little or no institutional licensing experience. These targets include device makers, retailers and even end-users of connected products, among others. 

Patent pools are consolidating their position as the default channel for codec and connectivity standards. A late-2025 industry pledge to route IoT disputes through World Intellectual Property Organization (WIPO) arbitration and mediation demonstrates that major licensors expect thousands of first-time licensees.

Additionally, the profile of who asserts is changing. Patent assertion entities (PAEs) now drive more than 40% of U.S. SEP litigation – nearly double their share from a decade ago – as divestiture channels channel portfolios into the hands of specialists whose economics reward assertion volume. U.S. SEP filings have roughly doubled since 2014. This has the potential for serious damage due to the mixture of more inexperienced implementers, more professionalized assertion, with more capital behind it.

Everyone now concedes what the withdrawn EU SEP regulation tried to address –declared-essential is not the same as essential. Independent studies consistently find substantial over-declaration, yet royalty demands are still routinely anchored to raw declaration counts. With no public register of essentiality checks or aggregate royalty data on the horizon, the burden of diligence has shifted entirely to private actors. 

WIPO's forthcoming work on SEP valuation methodologies and the growth of commercial essentiality analytics both point in the same direction. The parties with the best data about what is actually essential, valid and infringed will negotiate – and litigate – from strength. Transparency is no longer a policy aspiration; it is a competitive necessity.

Against this backdrop, the case for an integrated IP management system (IPMS) is less about efficiency than evidentiary readiness. German courts have made negotiation conduct – response times, counteroffers and security deposits, among others – outcome-determinative. This means an implementer's defense may rest on a documented, timestamped record of every exchange with a licensor. 

Organizations are leveraging unified systems that connect portfolio data, standards declarations, licensing obligations, negotiation histories and product-to-patent mapping. It gives their legal teams that record by default rather than by reconstruction. It also surfaces exposure early: which products implement which standards, which declarations touch them, what has already been licensed through pools or suppliers and where royalty stacking is quietly accumulating across a bill of materials. In a multi-forum world, the organizations that can answer those questions in days rather than months are the ones that avoid being maneuvered into someone else's chosen venue.

Individually, few operating companies can economically challenge weak patents or generate independent essentiality data. The cost of a single challenge often exceeds the settlement demand, which is precisely the asymmetry PAEs price into their models. 

Member-based organizations change that arithmetic. By pooling resources across an industry zone, they are systematically testing the validity of asserted and declared-essential patents, commission independent essentiality and landscape studies that counter inflated declaration counts and impose a cost on low-quality assertions that no single defendant could impose alone. 

The deterrent effect positively compounds. When challenging weak patents becomes routine rather than exceptional, the expected value of asserting them falls for everyone. In a market defined by jurisdictional gamesmanship, professionalized assertion and asymmetric information, collective action is one of the few levers that addresses the incentive structure itself rather than the symptom.

The next few years will continue to reward organizations that implement preparation over reaction. The companies that treat FRAND as an ongoing data and governance discipline – not an episodic legal emergency – will be the ones setting terms rather than accepting them.