Europe Dithers While the United States Aims for “Global Dominance” and China Cements Its Status as the Only Country with a Coherent SEP Policy

2026 already has been a whirlwind of global activity, including in the world of standards and standard essential patents (SEPs).  The United States has announced its intent “to win the global race for 6G” and obtain “scientific and technological global dominance” (Global Dominance – The U.S.A.’s Views on Standards and SEPs).

China has further cemented its status as the only country in the world with a well-formulated and consistent strategy and vision around standards and SEPs (see The Coherent, the Meh and the Left Behind Part 1: China for a discussion of what makes them the only such country).  An order from China’s Supreme People’s Court (which was decided last year but just became public: SPC Decision and see also China’s Supreme Court Issues Second Ruling Asserting Jurisdiction Over Foreign Patent Pools) in Dahua v. Access Advance held that SEP licensing disputes involve public interests and so are not purely contractual in nature. 

After Access Advance sued Dahua for breach of their license agreement, Dahua sued Access Advance (an SEP patent pool administrator) in China alleging that Access Advance was abusing its market dominance by charging unfairly high, non-FRAND licensing rates (i.e. an antitrust claim).  The license specified New York as the exclusive jurisdiction for any disputes related to the license or royalties.  Access Advance claimed that the antitrust case therefore could only be heard in New York.  The Chinese Supreme People’s Court disagreed, holding that the Chinese courts have the jurisdiction to decide such antitrust claims even though the claims are licensing related.  The Court found that SEP licensing disputes are not automatically deemed solely contractual.  Rather, abuse of dominance/abuse of FRAND claims involve public and fair market interests that transcend private agreements. 

Europe on the other hand continues to dither when it comes to SEPs.  For a while it seemed as if Europe was on track to develop its own coherent strategy and vision around SEP licensing. The European Commission (EC) and the European Union, in consultation with numerous stakeholders and the public, spent years formulating and refining its Proposal for a Regulation of the European Parliament and of the Council on standard essential patents and amending Regulation (EU) 2017/1001 (“Proposal”).  The Proposal was not perfect – few things are (see my posts about it at EU Proposal).  But it was a tremendous step forward towards greater transparency and fairness in SEP licensing in Europe.  And then, abruptly, the EC withdrew the Proposal “under the pretext that there was no foreseeable majority in the Parliament and Council for it. This flimsy excuse is clearly fabricated . . . ” (S&D MEP Tiemo Wölken as quoted in EP Stands Up on SEPs). 

According to S&D MEP Wölken, “the Commission withdrew the proposal shortly after a meeting between Commission President Ursula von der Leyen and US Vice President JD Vance, amid rumours that this may have been a favour to appease major US companies.”  That would mean that while the US seeks global dominance in standards, the EC is engaging in a pattern of appeasement.  History teaches us how well that usually goes.

The European Parliament (EP) is having none of it and voted to sue the EC to force a vote.  The European Parliament has now made public the action it filed against the EC (see EUR-Lex - 62025CN0727 - EN - EUR-Lex).  In essence, the EP alleges that the EC’s actions were undemocratic and their reasons for doing so opaque: “the Commission prematurely brought the legislative procedure to an end without legitimate grounds supported by cogent evidence and arguments for doing so, and thus impermissibly encroached upon the legislative powers of the European Parliament and of the Council.”

Moving forward with the Proposal was not a hard decision to make. The EC and the EU had to answer only one question:  does Europe want greater transparency and fairness in SEP licensing or will Europe allow the judges of one European country (i.e. Germany – see The FRAND Commitment and Courts That Just Don’t Get It) to impose their myopic vision of SEPs on all of Europe.  It does not bode well for the European Union as they face much more difficult decisions that they cannot even internally align on this single issue.