IBIL Responds to Government Consultation on Standard Essential Patents

Earlier this month, the UCL Institute of Brand and Innovation Law (IBIL) submitted its response to the UK Government’s latest Consultation on Standard Essential Patents. The IBIL Response was authored by Professor Sir Robin Jacob, Director of IBIL, and the Sir Hugh Laddie Chair of Intellectual Property Law, UCL Faculty of Laws. Professor Jacob has extensive experience of SEPs, SEP licensing and litigation which makes him uniquely placed to comment on the Government's proposals. 

An 'standard essential patent' (SEP) is a patent that protects an invention deemed essential for the implementation of a particular technological standard. These standards governs the operation and interoperability of Wi-Fi, USBs, mobile data (3G, 4G, 5G etc.) - technology which now plays a vital role in our daily activities. Standard Setting Organisations (SSOs) are responsible for developing technological standards and identifying SEPs. SEP owners are then generally required under SSO rules to license their SEPs to implementers on fair, reasonable and non-discriminatory (FRAND) terms. The goal of SSOs is therefore to prevent anti-competitive practices between parties, and this includes protecting smaller actors across different fields. Whilst the process of obtaining a SEP and licensing it is complicated, it is generally well understood by the parties who operate within the different technological spheres.

The UK Government via the UK Intellectual Property Office (IPO) launched its Consultation on SEPs in July 2025, based upon concerns that the current system, which relies upon supranational SSOs, may create a 'complex ecosystem' that may 'hinder innovation and investment, particularly for smaller businesses'. The Consultation identifies, for example, that licensing costs might be unclear because of confidentiality agreements and that this makes the pursuance and guarantee of FRAND very difficult. Based upon this perception, the Consultation offers a number of ‘solutions’. These include use of the IPO to assess SEPs and make information about them more readily available, and the use of the Intellectual Property and Enterprise Court (IPEC) as a rate-setting body for global portfolios in SEP disputes. The Consultation sought to gain feedback on the SEP system generally, as well as on a number of specific recommendations.

The IBIL Response, not only answered all the set questions, but also provided more general comments, based not only upon Professor Jacob's great experience with SEPs and SSOs, but also his involvement with other rate-setting bodies, including the Copyright Tribunal. Ultimately, the Response remained unconvinced that the 'issues' identified in the Consultation were really 'issues' at all, leaving the response to conclude that the Consultation’s assertions were unwarranted and the proposed 'recommendations' were unnecessary.

In terms of more specific points, the Response pointed out:

• a number of procedural issues with the IPEC proposal, namely that few cases deal with rate-setting alone, and in any capacity that the High Court and IPEC (in some cases) already have the jurisdiction to deal with this issue when it emerges. They can even deal with rate-setting before issues of validity or infringement, should they deem fit (which has been seen in a handful of cases).
• gaps in the consultation’s recommendation about the use of IPEC for royalty setting, including:
  • what procedure/track would be used?
  • How does the jurisdiction of the IPEC fit this role?
  • What would the volume of the work be and how would this impact the current efficiency of the IPEC?
  • Why should this role be taken away from experienced judges in the High Court?
• The false assumption that patents stifle innovation - SMEs are not deterred from inventing simply because SEPs exist. On the contrary, the existence of such patents allows for incremental evolution of inventions and for fair licences to be negotiated.
• Importantly, given the international nature of SEPs, while SSOs are equipped to deal with multi-jurisdictional actors at the standard- and rate-setting stages, UK courts are not on equal-footing to be determining things like international rate or what it means universally to be ‘FRAND-compliant’.
  • This is especially true when looking at previous case law, where as it is UK courts have grappled with the concept of national jurisdiction to hear a case v jurisdiction to grant international licences. 

With the Consultation period closing on 7 October, IBIL is looking forward to the IPO’s and Minister’s reply to the the feedback submitted. It is imperative that this is given serious consideration, as it is evident that any changes need significantly more thought before implementation, as they seem undesirable in any capacity. 

A full copy of Professor Jacob's Response will be published in an academic journal in early 2026, and details will be linked here. 

More Information

Find out more about SEP and standards by registering for the IBIL biennial conference, Patents and Standards 2026, which will be held in London on 14-15 May 2026. 

Picture credit: Mario Caruso on Unsplash