Context: Over the last decade, Apple has stepped up its involvement in regulatory activities, including by funding the ACT | The App Association, which claims to represent small-and medium-sized (SME) app developers. Last month, the association announced that it had “officially joined the European Telecommunications Standards Institute (ETSI)”, which we found was untrue (June 20, 2025 ip fray article) and which the French government and the national standards bodies of France and Sweden have since objected (June 24, 2025 ip fray article). Apple is also a major member of the Fair Standards Alliance (FSA), having joined not long after it was founded in 2015. Apple was also one of several Big Tech companies that funded an advertising campaign in Brussels last year, telling MEPs to vote for the (currently tabled) proposed EU Regulation on standard-essential patents (SEPs) (February 22, 2024 ip fray article).
What’s new: The proposed EU SEP Regulation was a “missed opportunity” and SEP holders should “be careful what they wish for”, Robert Pocknell, Director of the Fair Standards Alliance, warned on the “FRAND or foe” panel at the 2nd Annual IP Dealmakers Europe (May 12, 2025 ip fray article) in London on Tuesday. He noted that his organization was founded in the interest of SMEs’ FRAND issues, and Apple was not involved from the beginning (although, when it launched, Fairphone and IP Access were the only SMEs that made products listed as members, while the other SMEs provided legal and lobbying services). Nokia’s chief litigation counsel Dr. Clemens Heusch, who believes the tabling of the EU SEP Regulation was a good thing, said that in the face of a tight IP budget, Apple initiated a lot of pro-regulatory activities. The panelists also disagreed over UK courts having the power to issue interim license declarations.
Direct impact and wider ramifications: A day after the panel was held, the High Court of Justice for England & Wales (EWHC) issued an interim license declaration in Samsung v. ZTE (June 25, 2025 ip fray article). While it is only a declaration, Mr. Heusch also noted during the event that implementers have started to use policy and courts to “torpedo” the use of their preferred jurisdictions with interim licenses and rate settings abroad. He emphasized that Nokia “thinks it is not right” for one jurisdiction to tell another judge in another jurisdiction what to do.
Alexandra Brodie of Gowling WLG, who often represents SEP holders and moderated the “FRAND or foe” panel at the 2nd Annual LF Dealmakers Europe in London on Tuesday, said global tension on FRAND is on the rise – and this is not just in litigation. Noting both the World Trade Organization’s (WTO) two probes into Chinese courts over anti-suit injunctions (ASIs) (April 23, 2025 ip fray article) and setting global FRAND rates (January 20, 2025 ip fray article), and the proposed EU SEP Regulation, she asked panelists:
“Should [FRAND] just be left to the parties and standard development organizations?”
Mr. Heusch recognized that policy has become a “very important vehicle in this debate” but that it’s “good” that the SEP Regulation is off the table for now. He told audience members what he called a “made-up story” behind why Apple joined lots of associations and started initiatives (such as to back the SEP Regulation) – imagining Apple’s CFO demanded its Chief IP counsel to cut the amount it pays for patent licenses by something like 30%.
He acknowledged that transparency is good, but the draft was “poorly drafted [and] would have dramatically limited access to justice”, noting that a lot of judges had major concerns that it would have breached the European Charter of Fundamental Rights.
Fellow panelist Kevin Scott, Licensing Program Leader of UMTS/LTE/Wireless Power at Philips, said he had “sympathy” with what the regulation was setting out to do but agreed with Mr. Heusch that it was badly drafted, appeared to be rushed, and “not thought through in a practical sense”.
But Mr. Pocknell disagreed – particularly with Mr. Heusch’s comments on Apple’s lobbying activities. He emphasized that Apple was not a founding member of the FSA in 2015 and that Big Tech had “nothing to do with the FSA”. In fact, he added, SEP Regulation discussions started at the European Commission way before the FSA’s existence.
Mr. Heusch responded with:
“Whenever big companies have an issue, they say ‘we have to protect the SMEs’ but SMEs don’t have a problem.”
Which Mr. Pocknell answered with the fact that there is existing litigation between KPN and a UK-based SME in the U.S., and many SMEs have been receiving licensing requests. And, he emphasized, the FSA was started by SMEs: “Apple was not involved until later.”
Turning to Heusch, Mr. Pocknell also said SEP holders’ budgets have been “spent brilliantly” in getting rid of the proposed EU SEP Regulation and that they have “bought another few years”.
But, he said, it’s a “missed opportunity” and SEP holders are wrong to not look at the bigger picture. Mr. Pocknell believes this opportunity – a globally accepted European framework for FRAND determination – is now lost and being handed over to China, where its competition authority, the State Administration for Market Regulation (SAMR), has issued SEP guidelines, which address good faith negotiations, transparency, excessive pricing, and refusals to license to all (November 2024 SAMR guidelines).
“Be careful what you wish for because you now don’t have anything in Europe apart from the UPC,” he added.
UK interim license debate
Ms. Brodie also asked panelists whether the UK court system has “lost its shine” in patent litigation, referring to InterDigital v. Lenovo (October 9, 2024 ip fray article), Optis v. Apple (May 1, 2025 ip fray article), and Unwired Planet v. Huawei, and the three very different outcomes they have produced for UK case law so far.
Mr. Heusch said that the decisions have led to a pendulum swinging back and forth a lot, but the latest decision in Optis v. Apple has not deterred implementers from filing FRAND rate-setting cases in the UK, because “the courts there are willing to grant ASIs” (by which he means interim licenses).
Gaining a lot of time seems to be more attractive than the risk of a relatively high rate, he added.
Ms. Brodie pressed Mr. Pocknell on the issue of interim licenses, to which he said:
“I don’t understand why SEP holders don’t want to have some money – let’s show willingness. If there is an opportunity, then why not?”
But Mr. Heusch stated that accepting money with the right to claim everything back is “worthless” and turns SEP holders into a “bank for the implementer”. So far, in the UK, no implementers have offered to make interim payments that are non-refundable, he said.
He believes that allowing interim license declarations locks a patent owner into a system they haven’t chosen – yet the broad consent on FRAND is that it is not one rate or one data point, but it can be a range: “The court in the UK will not give a range.”
This discussion was very timely, as it was held a day before the EWHC issued a declaration confirming that Samsung was entitled to an interim license from ZTE (June 25, 2025 ip fray article).
In addition to the above, Mr. Heusch said this allows implementers to try to “torpedo” the use of their preferred jurisdictions with interim licenses and rate settings abroad. He emphasized that Nokia “thinks it is not right” for one jurisdiction to tell another judge in another jurisdiction what to do:
“We have a lot of smart people in many courts around the world and they all have jurisdictions for their cases, but they should not interfere with each other’s cases.”