Courts, trade bodies and regulators collide over global SEP governance
12th IP and Competition Forum
Key takeaway: Courts are no longer the sole arbiters of standard-essential patent disputes, with trade authorities and regulators playing an increasingly prominent role as jurisdictions compete to shape global FRAND outcomes, practitioners said during a panel at the Oxfirst 12th IP and Competition Forum, held in Oxford on January 13 & 14 2026.
Chaired by Mr Adamo of the law office of Ken Adamo, the discussion highlighted growing convergence around core FRAND principles alongside deepening disagreement over injunctions, global rate-setting and institutional authority.
Global FRAND disputes draw in courts, regulators and trade bodies
Professor Zhang of Renmin University of China Law School outlined how Chinese courts have integrated FRAND commitments into SEP enforcement without definitively classifying them as traditional contracts. Chinese contract law allows third-party beneficiary rights, he said, enabling courts to enforce FRAND obligations where implementers show willingness to negotiate and to pay court-determined royalties.
In such cases, Chinese courts may be reluctant to grant injunctions, Professor Zhang said. At the same time, “criteria for granting preliminary injunctions are relatively low and permanent injunctions remain common”, creating strong pressure to reach agreement. Chinese courts can also issue preservation measures akin to interim relief, even while arbitration or WTO proceedings are under way.
China has additionally experimented with interim licensing mechanisms, Professor Zhang said, allowing courts to impose temporary royalty arrangements where both licensors and implementers accept court-determined royalty stacks in good faith. These developments have attracted close attention within Chinese industry and legal circles.
Trade authorities focus on economic impact, not legal doctrine
Qualcomm senior public policy counsel Mr Ewert placed these judicial trends in a trade context, recalling the European Union’s WTO dispute against China. China was the first jurisdiction to allow implementers unilaterally to seek global FRAND rate determinations without SEP holder consent, he said, often reinforced by anti-suit injunctions asserting venue primacy.
From a trade authority perspective, Mr Ewert said, the concern is less legal doctrine than economic impact — specifically whether foreign courts restrict domestic firms’ ability to enforce patent rights and conclude licences abroad.
Turning to negotiation dynamics, Mr Nied previewed empirical research comparing royalty offers with court-determined rates. Drawing on cases such as Microsoft v Motorola, he said that while the gap between demands and outcomes has narrowed over time, significant divergence remains.
On average, licensors demand royalties more than 200% above court-determined levels, while licensees offer just over half of judicial benchmarks, Mr Nied said. Despite increasingly detailed economic and comparability analysis by courts, large initial disparities continue to complicate negotiations.
Are courts finding FRAND — or just ending disputes?
In discussion, panellists debated whether courts are seeking to identify true FRAND rates or simply to resolve disputes pragmatically. Mr Nied said judicial reasoning shows substantial analytical depth, even where outcomes are later adjusted on appeal. Comparisons remain difficult, however, because courts often assess individual patents while market negotiations concern global portfolios.
Returning to trade scrutiny, Mr Ewert said authorities began closely monitoring SEP decisions around 2021, when China increasingly set global rates without SEP holder consent. The United States and European Union have since treated such practices as potential trade barriers, and a WTO appellate panel has supported the EU’s view that unilateral global rate-setting and anti-suit injunctions can infringe the right to enforce patents and conclude licences elsewhere.
These concerns arise, Mr Ewert said, because injunctions remain central to effective SEP remedies. He added that similar scrutiny could extend to the UK, which has also asserted global rate-setting authority, though trade responses tend to be political and pattern-based rather than driven by individual rulings.
Ms Maghame of Maghame Consulting broadened the focus to regulation, pointing to the EU’s withdrawn SEP regulation proposal. While controversial, its withdrawal does not rule out future initiatives, she said. Regulators in the UK, China, Brazil and the US are increasingly intervening to improve transparency, consistency and competition, particularly to support SMEs and reduce litigation costs.
Recent steps such as the USPTO’s creation of an SEP working group should be followed closely, advised Mr Adamo.
The discussion concluded with debate over whether SEP holders oppose regulation as such or merely poorly designed frameworks. While views differed, panelists agreed that the global SEP system is in transition, with courts, regulators and trade authorities all expanding their influence — and with growing recognition of the need for greater coherence, transparency and balance.
Note: The views of the speakers do not necessarily reflect those of OxFirst, its affiliates, or employees. They also do not represent an official view of the companies the speakers work for. They are only the personal views of the speaker.