UK government rows back on SEP licensing reforms following consultation

The government launched a consultation on standard essential patents (SEPs) in July 2025, seeking views on various proposals designed to address perceived systemic issues in the SEP licensing ecosystem. 

SEPs are patents that protect technologies essential to technical standards, such as 5G. Disputes over the implementation and licensing of standardised technologies have formed an increasing part of the global patent litigation landscape. Businesses have persistently raised concerns over issues such as information gaps and a lack of transparency in the licensing process. 

The consultation sought to address some of these issues in order to improve the SEP licensing ecosystem. It covered a range of topics, including the potential introduction of a new fair, reasonable and non-discriminatory (FRAND) rate determination track (RDT) in the Intellectual Property Enterprise Court (IPEC), pre-litigation conduct, the availability of injunctions in SEP disputes, and whether certain information on all patents disclosed as essential should be mandatorily provided to the UK Intellectual Property Office (UKIPO).

Having received responses from a broad range of stakeholders, the government has confirmed that it will only proceed with "targeted interventions". It concluded that there was insufficient evidence to pursue the more wide-ranging interventionist proposals included in the original consultation. It will not develop an RDT nor will it pursue legislative change on the availability of injunctions in SEP disputes.

Although the government is only looking to take forward a more limited package of changes, it plans to work with the judiciary across several areas that could result in practical changes to how SEP and FRAND licensing disputes are litigated. 

The government has said it will work with the judiciary to explore the introduction of a structured early neutral evaluation (ENE) process for FRAND disputes within existing court proceedings. A SEP-specific pre-action protocol has not been ruled out, although it would be a more significant and time-consuming undertaking that would have to align with the wider package of measures, including any FRAND licensing guidelines.

No new rate-setting track

The consultation asked whether a new RDT within the IPEC could provide a faster and more affordable route to FRAND rate determination in cases where infringement, essentiality and validity are not in dispute. Cases frequently involve multiple technical trials, using significant court time with limited benefit. The English courts have employed active case management to address this, but the proposed RDT would have mandated a specific approach.

While responses broadly supported quicker and more affordable dispute resolution, there was no consensus in favour of the RDT. Respondents pointed to practical difficulties, including separating rate-setting from wider disputes between the parties, the evidential and methodological complexity of FRAND assessment, and a material risk that a standalone track would not, in practice, produce the intended gains in speed.

Three complementary measures

Instead of introducing the RDT, the government will pursue three complementary measures aimed at improving access to lower-cost routes for assessing FRAND rates for businesses; in particular, for small and medium-sized enterprises (SMEs).

First, the government plans to introduce a UKIPO-led FRAND opinion service. This will be voluntary and non-binding and is intended to assist parties in early-stage licensing discussions by providing an indicative opinion on whether a proposed offer falls within a plausible FRAND range. The government will first consult on its feasibility before deciding whether to proceed.

Second, it intends to launch a court-anchored FRAND determination mechanism. It will commence discussions with the judiciary on building on existing case-management powers under the Civil Procedure Rules. Options include an automatic stay in FRAND cases and potential assessment of cases under the existing ENE framework, as well as mandating potential costs consequences where parties fail to engage constructively.

Third, FRAND licensing guidelines will set out the practical steps and procedural considerations for using the new measures, aiming to provide more efficient resolution of disputes.

More SEP transparency

The government is also pursuing voluntary measures for IPO-led disclosure. Respondents highlighted that information relating to SEPs is currently fragmented, inconsistent and difficult to use, spread across multiple sources with variations in format, completeness and reliability. The consultation explored the possibility of the UKIPO working to centralise this information, as well as mandating disclosure of certain information with the threat of sanctions. 

Views were mixed: primary users of the technologies and trade associations broadly supported greater transparency measures, while those who were wholly or primarily rightsholders cautioned against the government mandating disclosure or introducing a sanctions regime.

In response, the government has stated that it will introduce a voluntary measure for rightsholders to provide information on their SEPs to the UKIPO, creating a single point of access through the UKIPO's One IPO search service. Rightsholders will be asked to provide information at grant, or at the renewal stage for EP(UK) patents. The provision will not be retrospective and will relate to future standards only.

While this measure will be voluntary, the government has indicated it is willing to consider a compulsory scheme if there is significant non-compliance with the voluntary regime. 

Pre-litigation conduct

Many respondents considered that current pre-action protocols are poorly suited to SEP disputes. The protocols are too high level and insufficiently tailored to the technical and economic characteristics of FRAND negotiations, and do not always secure sufficiently early and meaningful exchange of information. These information asymmetries were seen as more likely to escalate disputes into litigation. In response, the government will assess the feasibility of a SEP-specific pre-action protocol within the existing civil procedure framework, examining its scope, proportionality and enforceability.

Essentiality checking

The consultation evidence did not establish a sufficiently clear case for an IPO-led service at this stage, given uncertainty over feasibility, delivery models and interaction with existing market provision. The government will instead focus on improving transparency, encouraging better-quality information exchange and supporting more informed use of existing services, complementing rather than replacing the existing market.

No injunction and ADR changes

Two areas where some stakeholders had hoped for reform will see no legislative change. The evidence did not support the case for legislative changes to limit the availability of injunctions in SEP disputes. The government noted that the UK approach, where an injunction is only available after careful judicial scrutiny and where a party is found to be unwilling to accept court-determined FRAND terms, is internationally respected and provides an appropriate balance of flexibility and proportionality. 

Instead, the government will look to develop SEP licensing guidance with industry, setting out how all stakeholders should act transparently and promptly in negotiations to encourage good faith conduct.

Respondents did not identify a lack of alternative dispute resolution (ADR) services as a primary problem. Evidence indicated that existing ADR provision is broadly sufficient and that the limited use of ADR is driven less by wider structural and behavioural factors than by shortage of services. The government will not establish a new standalone ADR mechanism for SEP disputes, nor expand the UKIPO's mediation service. Instead, it will look to improve guidance and signpost existing ADR options.

Osborne Clarke comment

In its response to the consultation, the government has steered clear of any widespread or direct intervention in the UK's SEP licensing ecosystem. The rejection of the RDT and the absence of any changes to the injunctions framework will be welcomed by rightsholders. Equally, the transparency measures and pre-action conduct proposals should provide some reassurance to users of standardised technologies and, in particular, SMEs, which have long complained of information asymmetries.

This appears to be a more proportionate way forward, addressing concerns without mandating measures or introducing any additional regulatory burden. The direction of travel seems to favour voluntary, guidance-led solutions rather than more interventionist measures.

However, the government's position is not wholly settled, and the FRAND opinion service and court-anchored FRAND determination mechanism as well as the potential SEP-specific pre-action protocol still have the potential to reshape the contours of SEP licensing disputes. In particular, it will be interesting to see how the existing ENE framework is developed and put to use. To date, its use by commercial litigants has been very limited. Given ENE is a preliminary and summary assessment, it is difficult to see how it can be deployed in as technically and commercially complex an exercise as a FRAND determination in a way that will assist parties, rather than entrenching positions and driving up costs overall.

However, businesses should be aware that this programme of work is unlikely to move quickly, with the government noting that the measures are "likely to be implemented over a longer timeframe".