Opinion
The UK Intellectual Property Office (IPO) enjoys a very good reputation as a patent office. As a policy-making institution, it must now be careful not to come across as wholly tone-deaf.
It was odd enough that the UK IPO put out a proposal for FRAND (fair, reasonable and non-discriminatory licensing) rate-setting after the failure of the EU’s proposed regulation on standard-essential patents (SEP) (July 15, 2025 ip fray article). But even if they thought they had conceptualized a better mouse trap, they must now come to the inevitable realization that this game is over before it has begun. They can waste their time and energy, and taxpayers’ money (in the sense that the same resources could be put to better use). But their regulatory idea is dead in the water for the simple reason that the courts in which most European SEP cases are brought will never recognize a UK FRAND determination, and will not hesitate to clamp down on whoever seeks to abuse that system:
- Only a couple of days after the UK consultation started, the 7th Civil Chamber of the Landgericht München I (Munich I Regional Court) released its new FRAND guidance (July 18, 2025 ip fray article). The message was that they can make declarations on FRAND rates and licensing obligations wherever they want, but once there is the slightest coercion, parties seeking to abuse a UK (or other foreign) process will be reined in.
- The next blow came five days before the end of the consultation period. It didn’t take long before the Unified Patent Court’s (UPC) and the Munich I Regional Court’s (as well as its regional appeals court’s) anti-antisuit injunction (AASI) doctrine was applied to a UK interim-license ploy. The UPC’s Mannheim Local Division (LD) and the Munich I Regional Court’s 21st Civil Chamber (whose Presiding Judge will be sworn in as a UPC judge next month) both enjoined Amazon (October 2, 2025 ip fray article).
- A month and a half later, the UPC’s Mannheim LD held a preliminary injunction hearing as Amazon sought a review of InterDigital’s ex parte injunction. It became rather clear that the UPC is not going to recognize global SEP licenses imposed by UK courts (November 14, 2025 ip fray article). At this week’s hearing of InterDigital’s jurisdictional challenge to Amazon’s UK FRAND claims, Mr Justice Richard Meade of the High Court of Justice for England & Wales (EWHC) noted that the UPC and apparently also the Munich I Regional Court were not going to recognize a UK FRAND ruling with respect to continental European patents.
If the UK IPO doesn’t want to believe us, it should listen to Mr Justice Meade’s correct understanding of where this is all headed.
I already had a conversation with a high-power German patent judge at an event in 2019, shortly after the first Munich AASI. At the time, the question was not whether the UK would impose FRAND licensing terms on a SEP holder. That came up years later. In 2019, it was about other jurisdictions.
The German judge explained it to me like this: “If a party presents a license agreement to us, the first thing we have to assess is whether we can recognize it as valid. The first step in that analysis is to look at whether the underlying judgment was issued by a court of competent jurisdiction. If we then see that it was a court that is not competent to adjudicate German patents, we are already done with the assessment.”
Short shrift. That’s all that those UK FRAND determinations and court-imposed license agreements are going to get from the UPC and from the German courts.
There is a certain pattern in UK policy-making and regulatory overreach:
- They wish to exercise the powers they (re)gained thanks to Brexit.
- But they constantly overplay their hand because they don’t fully consider that Brexit didn’t make them as powerful as a second EU. They’re just 2% of global GDP.
Brexit created an opportunity (that they have so far wasted) to do better than the EU in certain respects (which shouldn’t be all that hard given the EU’s socioeconomic failure). But when size matters, they are only a second-tier economy:
They dropped out of the top five when India overtook them at the end of 2021. In the coming decades, they’ll probably drop out of the top ten, falling behind such countries as Indonesia, Brazil, Mexico, and Turkey. AI and robotics have the potential to accelerate that trend: once an extremely high degree of automation is reached, the strength of an economy will depend on its AI-related IP (to the extent AI-related IP is being created in the UK, it effectively belongs to Google), high levels of reliable low-cost energy (which windmills do not provide, and in terms of nuclear energy, France is several times stronger than the UK), and natural resources including agriculture. With the right policies, multiple Latin American countries will benefit from the combination of their natural endowments and lower population densities. The same may apply to such countries as Australia and New Zealand.
The UK will make better strategic choices if it is realistic. It could do better than the EU. Under a better government, it could again become America’s culturally and politically most compatible European ally. It could tackle problems the EU is unable to solve. It could provide a business-friendlier climate. It could develop a strategy to do better with a shrinking population in a world in which AI systems and robots will replace us in an increasing number of roles (for example, self-driving cars already outperform human drivers). But it would have to try to be a larger and non-landlocked version of Switzerland rather than a wannabe superpower that ends up with a bloody nose.
Spending tens of millions on UK FRAND proceedings that will not even make a persuasive impact on continental European enforcement actions is not going to yield a good return on investment, not even for the largest implementers of standards. The ROI will actually be negative if implementers availing themselves of the UK process will be deemed unwilling licensees (the Munich court’s affirmance of its anti-interim-license injunction is instructive), making them susceptible to SEP-based preliminary injunctions (November 20, 2025 ip fray article) that can end any such dispute in no time.
UK IPO, let it go.