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UK must be careful: U.S. Trade Representative’s Special 301 Report raises SEP-specific concerns (global license rulings, antisuit injunctions)

Florian Mueller

Context: Every year, the United States Trade Representative (USTR), which is the title of a White House officer (presently, Ambassador Jamieson Greer) and the name of a government agency, releases a Special 301 report on insufficient protection of IP, or the undermining of IP rights, in other countries. In responses to a public consultation ahead of the new (2026) Special 301 Report, standard-essential patent (SEP) enforcement issues were raised. Some of those advocating strong SEP enforcement suggested the UK should be put on the USTR’s watch list (February 4, 2026 ip fray article).

What’s new: On Thursday (April 30, 2026), the USTR released the new report (USTR press release and PDF). The EU is a prominent “new entrant” on the Watch List1, but the reasons given for that are primarily pharma-specific (potential expansion of Bolar exemption, opposition to Supplementary Protection Certificate (SPC) grants etc.). SEPs are not mentioned there, and the UK has not been added to the list yet. But there is an Intellectual Property and Standards section that discusses SEP-specific issues:

  • Overbroad Anti-Suit2 Injunctions
  • Sovereignty Impinging Patent Valuation
  • Prohibitions on Injunctive Relief
  • “Licensing Negotiation Groups” (LNGs)

Direct impact & wider ramifications:

  • If EU seeks to be removed from the list, it must be careful about its treatment of patent pools and, especially, its willingness to allow LNGs.
  • The UK was “saved by the bell” at this stage, but should take note of the chapter on SEPs, which combined with the UK judiciary’s self-righteous and imperalist overreach (which the UK Supreme Court (UKSC) put on display again this week) make the country an ever more likely new entrant in 2027.
  • The U.S. itself does not practically grant access to SEP injunctions. It has been almost 20 years since the last one. That is due to the case law, not current government policy.

Here are some observations on the section on IP and standards:

  • Antisuit injunctions (ASIs) are recognized as potentially “serv[ing] legitimate purposes”, but the report raises concerns over “sweeping ASIs that unfairly prohibit U.S. entities from enforcing their patent rights anywhere else in the world.” This is not an EU-related concern, but there is a UK issue here:
    • UK courts have so far steered clear of outright anti-enforcement injunctions concerning SEPs. But:
    • Interim licenses are ASIs by any other name unless both parties actually consented3 to global dispute resolution in the UK. The argument that they are mere declarations is a lie as judicial declarations of contractual rights can have discouraging effects in light of further consequences. There is no doubt that any analysis in the U.S. of the trade implications of SEP policies and rulings will be functional (not formalistic) and effects-based.
    • Not only interim but also post-trial license grants could raise those concerns.
    • In the dispute between U.S. companies InterDigital and Amazon, a UK court granted an ASI against the licensor that carved out enforcement, but sought to prevent InterDigital from obtaining anti-interference relief from the Unified Patent Court (UPC) or Munich I Regional Court. Therefore, that ASI was designed to compromise IP enforcement on the bottom line.
  • The following paragraph speaks for itself and shows that the UK is on its way onto the 2027 Watch List:
    “Some foreign courts increasingly assert authority to set worldwide licensing rates for standard essential patent portfolios that include U.S. patents without securing consent from both parties. In view of the traditional territoriality of patent rights, such actions may interfere with U.S. patent holders’ legal right to seek damages for infringement of their U.S. patents in a U.S. court.”
  • The part on access to SEP injunctions should be directed at the U.S. itself:
    “Effective patent enforcement may be diminished by the adoption (or proposed adoption) of categorical or near-categorical prohibitions on injunctive relief for patent infringement—whether by legislation, foreign agencies or courts, or multinational tribunals—particularly in the standard essential patent context.”
  • LNGs are a topic over which the U.S. and the EU are clearly divided:
    “A final concerning development is the emergence and/or sanctioning of ‘Licensing Negotiation Groups’ (LNGs) that could harm competition by enabling technology purchasers, under certain circumstances, to act jointly to lock in potentially subcompetitive or sub-FRAND prices, or agree to engage in ‘holdout.’”
    • The European Commission’s (EC) new Technology Transfer Guidelines (TTGs) do not (unlike an official draft version: September 11, 2025 ip fray article) provide a safe harbor for LNGs (April 16, 2026 ip fray article). But:
    • The U.S. government has previously expressed concerns over the EC’s comfort letter to an Automotive LNG (October 10, 2025 ip fray article).
    • And the Antitrust Division of the United States Department of Justice is investigating an Automotive LNG (March 23, 2026 ip fray article).
    • The UK has (at least so far) avoided authorizing LNGs. The UK Competition and Markets Authority (CMA) put out its Draft guidance on the application of the Chapter I prohibition in the Competition Act 1998 to technology transfer agreements (PDF) just hours before the new U.S. report. While the part on patent pools (next bullet point) is somewhat similar to the EU position, LNGs are nowhere to be seen.
  • Governmental or judicial initiatives that complicate efficient licensing through pools are not addressed in this report. But with what is going on in the UK and the EU, anti-patent-pool policies could become a topic of discussion in the next edition. U.S. trade officials will be watching.

Radical judicial imperialists in the UK should also take note of the following sentence:

These tactics also violate basic principles of due process and national sovereignty, undermine the foundation of patent rights, and depress the value of U.S. patented technologies.

At this week’s UKSC hearing, the ignorance of some high-ranking British judges was shocking. When Avanci’s counsel cautiously and almost obliquely referenced the massive interjurisdictional friction that the UK’s Unwired Planet v. Huawei framework has led to, Lord Kitchin (one of the Unwired extremists) genuinely appeared to hear about that for the first time. He is semi-retired, which excuses this lack of awareness. But the question is whether other UK and especially UKSC judges live in an ivory tower.

  1. Not the Priority Watch List, which is reserved for those jurisdictions where U.S. concerns are strongest. But it would also have been highly unusual for a jurisdiction to go straight from not even being on the regular Watch List to the Priority Watch List. ↩︎
  2. Those capitalized terms in italics are direct quotes from the Special 301 Report, which is why capitalization and hyphenation may appear at first sight to be a departure from ip fray‘s guidelines. ↩︎
  3. That was the case when Xiaomi obtained an interim-license declaration in its dispute with Panasonic. Thereafter, almost every implementer was granted such a declaration. ↩︎