Briefing Note: UKIPO SEP Consultation

1. Overview and Strategic Context

The UKIPO’s 2025 consultation on Standard Essential Patents (SEPs), announced on 15 July 2025, signals a potential policy shift in how the UK approaches SEP licensing and dispute resolution. The proposals seek to position the UK as a procedurally distinct and implementer-friendly jurisdiction – particularly at a time when enforcement dynamics across Europe and Asia are shifting.

The UK plays a significant global role in FRAND jurisprudence having helped define key principles on jurisdiction, global licensing and the expected conduct of SEP holders and implementers. The UK hosts many SEP implementers, including major device manufacturers, chipset designers, and software platforms but has relatively few SEP holders. UK courts have consistently supported global licensing frameworks – notably in Unwired Planet v Huawei and InterDigital v Lenovo – and remain among the few to assert jurisdiction to set global FRAND rates. This stands in contrast to other popular jurisdictions like Germany, where courts are generally reluctant to go beyond national scope, focusing instead on infringement and injunctions.

The UKIPO’s consultation and supporting report can be seen as a strategic response to the rise of the Unified Patent Court (UPC), Chinese courts, and India as competing venues for SEP litigation. Rather than replicating the UPC’s enforcement-heavy model, the UK is exploring a more transparent, flexible, and potentially less adversarial alternative grounded in common law traditions.

2. The Rate Determination Track (RDT)

A centrepiece of the consultation is the proposed Rate Determination Track (RDT) within the Intellectual Property Enterprise Court (IPEC). This would be a low-cost, streamlined litigation route focused solely on determining FRAND licence terms, in cases where infringement, validity, and essentiality are not disputed.

The concept draws inspiration from regulatory analogies such as public utility ratemaking and collective rights management (e.g., the UK Copyright Tribunal or the US Copyright Royalty Board). These frameworks aim to address market failures such as royalty stacking, patent hold-up, and lack of transparency.

By narrowing the dispute to the licensing rate, the RDT is intended to lower litigation costs and increase access – particularly for SMEs. The UKIPO suggests that publication of RDT decisions could help establish a baseline for commercial negotiations, though it acknowledges that some stakeholders may view this as commercially sensitive.

3. Enhanced Transparency and Licensing Reform

Beyond the RDT, the UKIPO proposes mandating the disclosure of standard-related patent information. Patent owners would need to notify the IPO of SEPs at grant or first renewal, including details such as the relevant standard, FRAND commitments, and licence availability. This data would be searchable via the UK’s One IPO Search tool.

The goal is to reduce search costs for implementers and enable better-informed licence negotiations. In tandem, the IPO is exploring whether it should introduce an essentiality checking service – responding to concerns that many declared SEPs are not in fact essential. Current commercial services are viewed as expensive and limited in accessibility, particularly for smaller entities.

Additionally, the UKIPO seeks views on introducing a specialist pre-action protocol for SEP disputes to promote early exchange of key information – such as claim charts, standard versions, and licensing terms – before litigation is initiated.

4. Rate-Setting Models and Global Comparisons

The supporting report evaluates a range of international rate-setting frameworks, including the UK Copyright Tribunal, the US Copyright Royalty Board, and regulatory bodies in utility pricing. These offer potential institutional blueprints for a UK-based rate determination model, but each comes with limitations, including cost, procedural complexity, or limited IP expertise.

Methodologically, the UK’s courts have historically favoured top-down and comparable licence approaches. UK jurisprudence has generally rejected US-style apportionment based on the “smallest saleable patent-practising unit” (SSPPU), focusing instead on broader portfolio-based valuation. The consultation does not prescribe a specific methodology for the RDT, but invites views on sector-specific adaptations and the importance of flexibility.

The UKIPO also explores the idea of aggregate royalty rate caps, but notes significant competition law risks – particularly around price-fixing or anti-competitive information sharing. Any coordinated rate-setting effort would need to comply with the UK Competition and Markets Authority (CMA) and EU competition rules, and avoid unlawful horizontal agreements.

5. Positioning of the UK Amid Global Forum Competition

The consultation must be understood in the context of intensifying forum competition in global SEP enforcement. Since the UPC’s 2023 launch, its early pro-patentee decisions, such as Panasonic v Xiaomi, have made it an attractive venue for SEP holders seeking pan-European injunctions. Meanwhile, China is increasingly asserting itself as a global rate-setting forum, issuing antisuit injunctions and consolidating IP appeals through its Supreme People’s Court. India is emerging as a cost-effective, injunction-friendly jurisdiction as well, particularly favoured by NPEs.

The UKIPO’s approach differs notably from the European Commission’s now-abandoned SEP Regulation, which proposed a more prescriptive framework involving mandatory essentiality checks and centralised FRAND rate-setting via the EUIPO. That proposal faced strong pushback over legal uncertainty, administrative complexity, and the risk of overlapping with national courts and the UPC. In contrast, the UKIPO is pursuing a more consultative, flexible, and incremental model – grounded in stakeholder engagement and common law principles, rather than statutory overreach.

While the EU’s efforts were viewed by many as overly centralised and burdensome, the UKIPO appears focused on proportional interventions such as a voluntary Rate Determination Track, improved patent transparency, and optional essentiality reviews. This positions the UK as a procedurally distinct and potentially more neutral forum, particularly for implementers seeking clarity without being drawn into cross-border litigation.

6. Strategic Implications

The proposals may limit SEP holders’ leverage in negotiations, especially if RDT decisions become public benchmarks. Disclosure and essentiality requirements may increase compliance burdens and expose weak portfolio segments. At the same time, the reforms provide new tools for implementers and pool-related challenges by implementers, including lower-cost pathways to rate determination and improved access to SEP-related data.

Companies involved in SEP-intensive sectors, such as wireless, digital video, and IoT, should consider how these changes might affect licensing strategies, patent valuation, and enforcement risk.

7. Next Steps and Engagement

The consultation closes on 7 October 2025. Responses can be submitted via Citizen Space or by email to SEPs@ipo.gov.uk. The UKIPO explicitly welcomes views from SEP stakeholders, particularly on the design of the RDT, transparency proposals, essentiality assessments, and alternatives to litigation.

Given the UK’s continued influence on global FRAND licensing despite its exit from the UPC system, this consultation may shape the next phase of the UK’s role as a globally relevant forum for SEP disputes.

HGF Ltd. are available to assist with UKIPO consultation responses, SEP stress-testing for opposition resilience or for litigation readiness, or strategic planning around SEP litigation in light of these proposals.

This article was written by Partner & Patent Attorney Dr Susan Keston.