Standard essential patents (SEPs) in the EU – a way forward from the withdrawn SEP Regulation proposal?

Abstract

Standard essential patents (SEPs) are squarely placed at the intersection of intellectual property, standardisation, and competition law. They are vital for the development and deployment of technologies such as 5G, 6G, and the Internet of Things. In April 2023, the European Commission proposed an SEP Regulation aimed at increasing transparency, ensuring fair licensing on FRAND terms, and reducing disputes. However, the proposal faced criticism for potential burdens, limited institutional capacity, and risks to EU competitiveness. In late 2024, the incoming Commission announced the withdrawal of the initiative, leaving open whether a new proposal or alternative approach will follow. This article explores the legal, economic, and policy implications of SEPs in the EU after the withdrawal. It reviews the existing EU competition law framework, key case law such as Huawei v. ZTE, and enforcement practice against Samsung and Motorola. It also assesses expert group recommendations and recent reports by Letta and Draghi, which highlight the importance of connectivity, digital sovereignty, and innovation. The article argues that future EU policy should favour market-based solutions – such as patent pools, voluntary dispute resolution, and greater transparency – over heavy-handed regulation. Strengthening FRAND enforcement, supporting SMEs, and investing in R&D are proposed as more balanced ways forward.