To date, the Unified Patent Court (UPC) has not held a trial involving standard-essential patents (SEPs). However, the new forum’s Mannheim Local Division has now authored its first SEP-specific order in a case between Panasonic and Xiaomi. 

On April 17, 2024, a second Texas jury assessed damages of $142 million against Samsung, more than doubling a previous jury award of $67.5 in a protracted standard essential patent (SEP) litigation brought by G+ Communications. 

The UK has again demonstrated the ongoing trend against hold-out, approving an order forcing Apple to commit to take a license on FRAND terms, to be determined by the court, or face an injunction. This ruling is the latest in a line of decisions favorable to SEP holders across Europe and the United States that seem to be retilting SEP licensing towards more balance between innovators (patent owners) and implementers (alleged infringers). While there is more progress to be made, and the recognition of hold-out as a real problem continues to gain traction, this new UK decision reinforces basic principles of patent law: injunctions for SEPs are a real possibility.

Avanci’s pool retains its 5th Circuit win, in a slightly different way, after an unusual turn of events where the panel rescinded its prior opinion and issued a new one. The new opinion  affirms the district court’s ruling that Continental failed to state a claim under the Sherman Act (antitrust laws) thereby dismissing the case.  The original opinion found that Continental lacked standing to pursue its claims because it was not a third party beneficiary of the standard setting organization contract. Although the new ruling leaves some questions unanswered in the long-running dispute between a would-be implementer (Continental) and holders of standard essential patents (SEPs), the opinion rejects applying the antitrust laws in the SEP/FRAND context.

On June 8, 2022, the DOJ, USPTO, and the National Institute of Standards and Technology (NIST) (collectively, the Agencies) issued a new statement on FRAND licensing (2022 Statement) providing no set policy regarding Standards Essential Patents (SEPs), which should inure to the benefit of patent owners. By issuing this statement and declining to adopt their 2021 Draft Policy (2021 Draft Policy), the Agencies effectively neutralized their policy on SEP licensing and provide no guidance to parties in SEP licensing discussions. Even with no guidance, however, the Agencies are reserving the right to police negotiations and prosecute opportunistic behavior by either side in a case-by-case basis, creating a circumstance where negotiators may not know if they are raising the Agencies’ ire. Though knowledge of the evolving multinational case law related to SEP license negotiation provides reasonable understanding of the necessary procedure.