U.S. government consultation: some stakeholders want UK on watch list for interim licenses, others attack UPC and Germany over SEP injunctions

Stakeholders raising concerns over extraterritorial overreach

National Foreign Trade Council (NFTC)

The National Foreign Trade Council (NFTC) is a major American trade association that represents U.S. companies on matters of international tax and trade policy. Founded in 1914, it is one of the oldest and most influential business organizations in Washington, D.C., dedicated exclusively to advocating for an open, rules-based global economy. Its Board of Directors is chaired by Susan Schwab (a former USTR under President George W. Bush).

The NFTC’s 10-page submission mostly talks about general IP enforcement topics in connection with emerging economies, but toward the end also raises concerns over anti-injunctive-relief lobbying related to the EU IPR Enforcement Directive (IPRED: February 1, 2026 ip fray article). Then the attention turns to the UK, first mentioning the UK Intellectual Property Office (UK IPO) consultation on SEPs (December 6, 2025 ip fray article) and then raising concerns over UK interim-license case law:

There are also indirect attacks on the availability of injunctions. One such example is the interim license construct developed by UK courts in global patent disputes that effectively limits access to injunctions not only in the UK, but also in the United States and other jurisdictions. Under an interim license, an infringer may continue using an entire global patent portfolio, including U.S. patents, simply by paying royalties while a UK court sets global licensing terms. UK courts have ruled that such licenses shall be available even when the patent holder has not consented to UK jurisdiction. Because an infringer granted an interim license is treated as a licensee globally, this construct effectively deprives the patent holder of injunctions (and potentially other infringement remedies) not only in the UK but worldwide.

The approach adopted by UK courts mirrors the trajectory taken by Chinese courts, which have issued anti-suit injunctions to prevent the enforcement of U.S. patents in U.S. courts while Chinese courts determined the terms of a global license, including the terms for the use of U.S. patents. Foreign courts and governments have pushed back against this kind of extraterritorial overreach, and the United States should do the same. It is critical to ensure that foreign courts do not force U.S. innovators to relinquish or weaken their U.S. patent rights or limit their ability to seek remedies in U.S. courts.

Council for Innovation Promotion (C4IP)

The Council for Innovation Promotion (C4IP) is a high-level, bipartisan advocacy group founded in late 2022. It is essentially a “pro-patent” powerhouse designed to lobby the U.S. government to strengthen intellectual property (IP) protections. Its leaders are former high-ranking U.S. government officials and judges with responsibility for IP:

• Andrei Iancu (Co-Chair): former Director of the USPTO under President Trump.
• David Kappos (Co-Chair): former Director of the USPTO under President Obama.
• Judge Paul Michel: former Chief Judge of the United States Court of Appeals for the Federal Circuit.
• Judge Kathleen O’Malley: another high-profile former judge from the Federal Circuit.
• Lamar Smith: former U.S. Representative for Texas’s 21st congressional district and Chairman of the House Judiciary Committee.
• Gary Locke: former Governor of Washington, U.S. Secretary of Commerce, and U.S. Ambassador to China under President Obama.
• Frank Cullen (Executive Director): a veteran policy expert, formerly with the U.S. Chamber of Commerce.

The C4IP submitted the manuscript of the testimony its chief policy officer and counsel, Jamie Simpson, will deliver at an upcoming Special 301 Subcommittee hearing on February 18, 2026. The organization suggests elevating the EU to the Priority Watch List (because of its push for compulsory licensing, in general and with a view to SEPs) and says the following about the UK:

The United Kingdom should be placed on the Watch List due to recent SEPs-
related actions from its courts and indications that further regulation of standard-essential patents may be forthcoming, both of which seem poised to weaken patent rights and hurt innovators. Because many of these reforms are prospective and the UK remains a close U.S. trading partner, we are hopeful the UK will realign its SEP framework with market-based licensing principles, facilitating removal from the Watch List.

In a detailed submission, the C4IP also raises concerns over judicial rate-setting for patent pools, a question that the UK Supreme Court will decide this year (January 7, 2026 ip fray article), and over licensing negotiation groups (LNGs).

Business Software Alliance (BSA)

The BSA has been representing large enterprise software publishers for decades. Its current members include Adobe, Alteryx, Amadeus, Asana, Atlassian, Autodesk, Avalara, Bentley Systems, Box, Cisco, Cohere, Cohesity, Dassault Systemes, Databricks, Docusign, Dropbox, Elastic, EY, Graphisoft, HubSpot, IBM, Informatica, Kyndryl, MathWorks, Microsoft, Notion, Okta, OpenAI, Oracle, PagerDuty, Palo Alto Networks, PTC, Rubrik, Salesforce, SAP, ServiceNow, Shopify Inc., Siemens Industry Software, Trend Micro, TriNet, Veeam, Workday, Zendesk, and Zoom.

More than 20 years ago, the BSA was one of the organizations lobbying the European Parliament for a broad scope of patent-eligibility of software-related inventions. But Big Tech’s patent policy positions have changed since those days.

The BSA would like to testify at the upcoming hearing, and one of its IP-related concerns is described as “patent practices that weaken territoriality and legal certainty.” Unless the BSA intends to take the inconsistent position that extraterritorial overreach is desirable when it benefits implementers of standards and undesirable when it favors SEP holders, concerns over “patent practices that weaken territoriality” suggest that the U.S. cannot condone the UK’s FRAND rate-setting practice. Of course, it may be too optimistic to expect the BSA to take a consistent position, but the following paragraph from the BSA’s submission is reasonable:

In recent years, courts in jurisdictions such as the United Kingdom and Germany have demonstrated a willingness to impose injunctive relief or set FRAND royalty rates based on global licensing constructs, rather than limiting
remedies to patents and allegedly infringing conduct within the proper territorial jurisdiction of the court. These practices risk allowing SEP holders to seek determinations that effectively govern the value, enforcement, or licensing of US patents in foreign courts, thereby undermining the territorial nature of patent rights and creating significant uncertainty for innovative companies operating globally. The concern is not limited to outcomes, but also to litigation strategies that leverage foreign proceedings to exert pressure over US markets.

Provided that the BSA remains principled, the above is good. And the BSA cannot be blamed for being concerned about Onesta v. BMW (January 17, 2026 ip fray article), a Munich case over U.S. patents (non-SEPs, for the avoidance of doubt):

Recent developments in the United States underscore the seriousness of these concerns. In January 2026, a US federal court issued a preliminary injunction requiring the immediate withdrawal of patent enforcement actions filed in Germany that were based on US patents, reaffirming that US patent rights should not be adjudicated or indirectly regulated by foreign courts.36 This decision highlights growing international friction over jurisdictional boundaries in patent enforcement and the need for greater international discipline and restraint. BSA urges USTR to continue closely examining these trends to protect the interests of all US exporters and patent holders.

Innovation Alliance (IA)

The Innovation Alliance has the support of companies that engage in research and development on the one hand and fund those efforts, in whole or in part, through patent licensing on the other hand. In its submission, the IA raises concerns over antisuit injunctions (ASIs) and global rate-setting decisions.

The IA submission has an anti-Chinese slant (when in reality Chinese companies are now major innovators and SEP holders, and presently ZTE is on the receiving end of FRAND lawsuits by Samsung in multiple jurisdicitons). Where the IA submission lumps China and the UK together, it fails to make it clear that Chinese global rate-setting proceedings were merely a response to the UK Supreme Court’s terrible decision in Unwired Planet v. Huawei. One aspect that the IA rightly criticizes with a view to the UK is that the English courts are now even prepared to engage in global rate-setting and compulsory licensing for non-SEPs, which is reflects an unprecedented degree of overreach and usurpation that should draw a strong response from the civilized world.

II. Foreign Courts Weaken U.S. Patent Rights by Setting Global Royalty Rates and Blocking Innovators from Further Enforcing Their Patent Rights

Foreign courts have increasingly asserted jurisdiction to set global licensing terms for U.S. patents without the consent of the patent owner while also preventing patent holders – including U.S. companies – from validly exercising their patent rights, even in other countries. These tactics violate basic principles of due process and national sovereignty while undermining the foundation of patent rights themselves by depressing the value of U.S. patented technologies.

Courts in China and the UK, in particular, have issued rulings that set the license terms—including royalty rates—for a global patent portfolio without the patent owner’s consent either to the court’s jurisdiction or to enter into a license on those terms. Patent rights are territorial, meaning that U.S. courts have jurisdiction over U.S. patents, while UK courts have jurisdiction over UK patents. While it is appropriate for courts to set the terms of a global license if both parties first voluntarily agree to enter into that license, it is an improper limit on territorial patent rights to do so without the patent holder’s consent, regardless of whether the global portfolio contains SEPs, non-SEPs, or a mix.

Moreover, in addition to setting global licensing terms, Chinese and UK courts routinely issue ASIs when requested by the implementer to prevent the patent owner from validly exercising its patent rights in the United States and other countries.

[…]

United Kingdom. Courts in the United Kingdom have adopted an approach like that of Chinese courts. In its 2020 decision in Unwired Planet v. Huawei, the UK Supreme Court held that British courts may set global patent license terms as a condition for granting a patent injunction in the UK, where the parties had both consented to jurisdiction. Since Unwired Planet, however, UK courts have gone further, assuming authority to set the terms and conditions for global licenses to a patent holder’s portfolio even in cases where the patent holder has not agreed either to the court’s jurisdiction or to accept a court-determined license. UK courts then impose so-called “interim licenses”—temporary, court-imposed global licenses while proceedings on the merits of a licensing dispute are ongoing, even if the patent owner objects. Even more troubling, the UK courts are willing to include within the scope of the interim licenses non-UK patents that are not SEPs and thus are not encumbered by the SEP holder’s agreement to offer to license the patents on FRAND terms and conditions.

Both the UK and Chinese approaches involve a single national court assuming control over a multi-jurisdictional patent dispute at the request of an implementer – who must otherwise negotiate a license from the patent holder in good faith – without the patent owner’s consent to that national court’s global jurisdiction. In both cases, national courts wield powerful remedies against patent owners. These include ASIs that prohibit patent enforcement in other countries with the threat of cumulative daily fines and interim license declarations that, if not “willingly” entered into, result in declarations that the SEP holder (who has not asserted its patents in the UK) is an “unwilling licensor” in breach of its F/RAND commitment to the standards development organization (e.g., ETSI, ITU-T). These measures aim to block the patent holder from using its patents in other countries while forcing the patent holder to accept the court-imposed licensing terms.

USTR has previously expressed concern over China’s use of ASIs to support their “attempts to assert jurisdiction over global SEP disputes.” The same trade and IP concerns apply to the UK as with China: court-ordered arrangements that apply globally undermine privately negotiated patent licensing and favor implementers who can seek court-ordered licenses in the UK or China rather than face the threat of injunction against the unlicensed use of the patent.

Moreover, the UK is also doubling down on this approach. The UK Intellectual Property Office (IPO) is now considering establishing a new “Rate Determination Track (RDT),” a tribunal within the UK Intellectual Property Enterprise Court (IPEC) dedicated solely to SEP royalty rates determinations. The RDT tribunal “would provide a binding rate determination on request of either the licensor or licensee” with fewer procedural safeguards than a traditional court. Specifically, the proposal is that the RDT use “pre-litigation protocols, simplified procedures, specialists, and streamlined case management” to “focus on the narrow issue of rate setting.”
By not allowing for sufficient evidence of the market value of the SEP holder’s global portfolio, such as by introducing and unpacking comparable licenses, the RDT favors implementers who prefer a quick, court-ordered license over innovators who spent many years and many billions of dollars investing in R&D and technical standards development to bring the world’s most important technologies to market.

Technology implementers that sell products and services that use U.S. patents—especially those incorporated into technology standards—leverage these foreign court decisions to wield excessive and unfair power over U.S. innovators. Ordinarily, patent holders and implementers negotiate patent
licensing agreements privately. Good faith contract negotiations between parties promote cooperation, ensure fair compensation for innovators, and grant implementers access to patented technologies on FRAND terms. The China and UK legal regimes, however, shortcut the negotiation process by dragging U.S. patent holders into overseas courts, which order them to grant licenses on non-market terms and enjoined from enforcing their IP anywhere else in the world. Rather than promote the commercialization of innovative technologies, these cases suppress licensing royalties, reducing the ability of U.S. innovators to invest in cutting-edge R&D used by foreign implementers.

These developments unfairly disadvantage U.S. innovation. The possibility of obtaining an injunction to stop infringement of a patent is the fundamental remedy of the patent system. U.S. innovators expect that when they obtain a patent, others cannot “make[], use[], offer[] to sell, or sell[] within the United States, or import[] into the United States” their invention without a license.24
Allowing courts to dictate licensing terms without the consent of the patent owner erodes the very incentives for innovators to invest in risky R&D in the first place.

Alliance of Startups and Inventors for Jobs (USIJ)

It may be attributable to resource constraints and/or a lack of sophistication that this organization’s submission discusses SEP issues only with a view to China when the problems it highlights are far greater and more pressing in the UK.

U.S. Chamber of Commerce

The U.S. Chamber of Commerce naturally addresses a very wide range of topics in its submission. Its lack of focus may explain why the only SEP-related issue in the UK that it talks about is the potential UK legislative initiative on SEPs when there is already a huge problem with UK case law:

Finally, in the United Kingdom in 2025, the UKIPO undertook a consultation process on proposed regulatory interventions related to standard essential patents (SEPs) which included a streamlined Rate Determination Track for SEP royalties and a UK‑specific searchable SEP database. Both proposals could dramatically reshape a licensing ecosystem in ways that would devalue the intellectual property of innovative US companies. The Rate Determination Track proposal would establish the value of IP without providing due process to the right holder and without safeguards to prevent misuse. Likewise, a UK‑specific SEP database built on self‑declared essentiality would impose significant administrative burdens, legitimize inaccurate patent‑counting valuation methodologies, and create opportunities for misuse—contradicting the UKIPO’s stated goal of improving transparency. The US government should urge the UK government to refrain from adopting regulatory measures that would introduce uncertainty into SEP licensing markets and instead promote evidence‑based, market‑led solutions while ensuring any future reforms remain proportionate, transparent, and aligned with global best practices to safeguard innovation and competitiveness.

Stakeholders lobbying the U.S. government to dissuade the UPC and Germany from granting SEP injunctions

There are a few filings that suggest the U.S. government should be concerned over the UPC’s and German national courts’ practice of granting injunctions over SEPs based on their legal standard, which is obviously different from the UK rate-setting approach.

All those filings are ultimately funded by Big Tech, just using different labels and wearing different hats. The degree of redundancy is easily discernible, however: not only did ACT | The App Association (which two months ago withdrew its ETSI membership application: December 2, 2025 ip fray article) and the Fair Standards Alliance (FSA) make their own submissions, but they also filed a “multi-stakeholder” letter together with their own “Save our Standards” initiative, the Software & Information Industry Association (SIIA), Engine (which says it advocates startup interests but in this case simply joins a Big Tech chorus), and the Public Interest Patent Law Institute, which promotes the weakening of patent rights.

The multi-stakeholder letter complains of “the increasing threat from certain German courts and the Unified Patent Court (UPC) concerning licensing proceedings for standard-essential patents (SEPs).” It then goes on to complaint over antisuit injunctions against UK FRAND proceedings.

ACT’s own letter is more aggressive. For example, ACT, which has been exposed as an astroturfing operation, accuses the UPC of not having correctly applied Huawei v. ZTE in its Huawei v. Netgear ruling (December 18, 2024 ip fray article). ACT “urge[s the] USTR to clearly state in its report that the German (and UPC) approach to SEP adjudication is flawed and constitutes a significant trade barrier” and “believes Germany should be placed on the Priority Watch List.”

The FSA takes similar positions as ACT, taking aim at the UPC and Germany, albeit in a slightly less combative form.

The Computer & Communications Industry Association (CCIA), which is actually more an Amazon-Google (and recently Apple) lobbying front than representative of the industry at large, discusses a different range of topics than ACT and the FSA. It does not talk about SEPs. Its only patent-related concern is third-party litigation funding.