UK government finds IPEC rate determination track not essential as it responds to SEP consultation

The UK Intellectual Property Office (UKIPO) has published the government’s response to its consultation on standard essential patents (SEPs), confirming in the process that it will not be introducing a new FRAND rate determination track within the Intellectual Property Enterprise Court (IPEC) but that it will take forward certain targeted measures intended to make SEP licensing more transparent, predictable and accessible.

Background

The UKIPO launched its consultation on SEPs on 15 July 2025, building on its earlier Call for Views in 2021 and SME SEP Questionnaire in 2023.

The consultation asked a number of questions about the current SEP licensing framework and possible measures that could be taken to address certain systemic issues, with a particular focus on examining options that could help to improve transparency on both pricing and essentiality, reduce information asymmetry as between SEP holders and implementers, and achieve greater efficiencies in dispute resolution (including arbitration and mediation). See our summary in the November 2025 edition of The IP Brief.

Government response

In its response, published on 13 October, the government acknowledged that the evidence it received confirmed the existence of certain systemic issues in the SEP / FRAND licensing space, including issues relating to transparency, information asymmetry (e.g. on pricing and essentiality) and the cost and complexity of resolving SEP disputes. 

To address those, it has proposed exploring the introduction of a package of potential new measures, including:

• A structured, court-anchored, early neutral evaluation-style FRAND determination mechanism, which would aim to provide parties with an early, non-binding judicial indication of FRAND terms.
• An IPO-led, voluntary, non-binding FRAND opinion service, to give parties an early view on whether a proposed SEP licence offer falls within a plausible FRAND range. The UKIPO has since launched a Call for Evidence to test the feasibility of introducing such a service, as well as to gather views on its potential scope and design, which remains open until 15 December.
• A set of non-binding FRAND licensing guidelines setting out how parties should engage with the new measures, including the court-anchored mechanism and IPO-led FRAND opinion service mentioned above.
• New measures for voluntary disclosure of standard-related patent information at the UKIPO, with the government intending to work with industry stakeholders to determine what information it may be useful and reasonable for SEP owners to provide. The government has not, however, ruled out making disclosure mandatory, or introducing sanctions, if significant numbers of SEP owners do not voluntarily comply.
• Examining, with the judiciary, targeted ways to encourage more effective pre-action exchange of information between the parties to SEP licensing disputes, including the potential need for a specialist, narrowly scoped, pre-action protocol for SEP licensing disputes.
• Guidance on SEP licensing negotiation best practice, which will aim to tackle “bad faith” negotiation behaviours.
• Clearer practical guidance on, and improved signposting to, existing services for alternative dispute resolution (ADR).

The government intends to carry out further design and implementation work for these measures with relevant stakeholders, the judiciary and relevant experts, before making final decisions. However, it has made it clear that longer lead times will be needed for those measures that may require legislation (such as the IPO-led FRAND opinion service and measures for disclosing standard-related patent information).

The government has confirmed that it will not, however, be introducing:

• a new rate determination track for FRAND cases in the IPEC;
• a UKIPO-run essentiality checking service;
• legislative changes to limit the availability of injunctions in SEP disputes;
• any new, standalone ADR services; or 
• any expansion of the UKIPO’s mediation service to include SEP disputes.

Comment

This response has been long-awaited and so it is good to finally see the government’s proposed direction of travel. Whilst the response confirms what the government will not be taking forward, uncertainty remains over what will in practice be implemented, with further work and evaluation to be done.

That said, it appears that the government intends to move quickly on this, with the UKIPO having launched its call for evidence on the IPO-led FRAND opinion service within a week of the government’s response being published.

With the UK Supreme Court’s decision in Optis v Apple (on how to determine FRAND terms for global SEP licences) expected in the near future and ongoing developments elsewhere, including the UPC Patent Mediation and Arbitration Centre’s consultation on its FRAND guidelines discussion paper, there continues to be a lot going on in this space.