FRAND Working Groups - the PMAC Joins the Fray

I ended my last post with the following quote from the UK Court in Samsung v. ZTE: “this profusion of litigation is a symptom of a dysfunctional system . . .”[1]  In response to the ever increasing problem of too much litigation and to these internecine jurisdictional fights, several entities and government organizations have formed “working groups” to review and evaluate how to make FRAND determinations outside the court system. 

The World Intellectual Property Organization (WIPO) has gotten into the act – developing a WIPO Strategy on Standard Essential Patents, issuing a report on FRAND Economics, convening symposiums on SEPs and FRAND, and inviting SEP owners and implementers to use WIPO for mediation in SEP disputes.[2]  WIPO seems to be trying to bring a balanced approach to making FRAND portfolio licensing decisions outside the court system. 

Sadly, this does not seem to be the guiding principle for at least some of these new working groups. Instead, they seem to have been established for the purpose of entrenching existing bias, rather than engaging in a fresh, reasoned and unbiased examination of the current system in order to try to create new and better mechanisms for enabling FRAND portfolio licensing outside of court systems.  For example, not too long ago, the U.S. Patent and Trademark Office (USPTO) formed a Standard-Essential Patent Working Group.  The goal of the USPTO’s working group is to further U.S. “scientific and technological global dominance” and it is heavily influenced by SEP holders.  It does not appear to be seeking a new and unbiased approach to FRAND licensing.[3] 

The Unified Patent Court (UPC) now has decided to enter this fray.  It recently announced that the UPC’s Patent Mediation and Arbitration Centre (PMAC) has established a PMAC FRAND Guidelines Working Group (“PMAC WG”).[4]  The stated intent of the PMAC WG is to develop guidelines “aimed at promoting consistency, efficiency and best practices in the resolution of FRAND-related disputes . . . .”  Given the existing bias of the UPC in favor of SEP holders at the expense of SEP implementers,[5] there is a lot of concern that the PMAC WG will be biased as well. 

Strangely, given these concerns, the PMAC did not announce the members of the PMAC WG (other than the Chair) when it announced the formation of the working group. The European Commission has stated that it values transparency when it comes to SEP issues:

“We can all agree that there is a lack of transparency . . . and without transparency, we cannot understand the entire problem at hand.”  Jonas Hein, Legal and Policy Officer of the European Commission, at the WIPO Symposium.[6]

When transparency is a significant focus for the EC, it is unclear why the PMAC waited to announce the names of these working group members.

And, even though it did recently announce the names of those members,[7] the PMAC continues to be vague about the scope of the PMAC WG’s intended role.  According to the most recent release, the PMAC WG is tasked with developing Guidelines that “are intended to identify and to provide guidance on issues commonly arising in FRAND disputes, and to promote consistency, efficiency and best practices.” 

There are a number of questions that arise from the releases. Is the intended role of the working group supposed to be limited to mediation guidelines?  Or is the PMAC WG's purpose to provide broader recommendations about FRAND and SEPs to be used by the UPC itself? 

Is the purpose of the working group to bring greater balance and fairness to SEP licensing through the mediation system?  Or is it instead aimed at bringing an imprimatur of legitimacy to the existing UPC bias against SEP implementers?  Will implementers be punished (e.g. found to be “unwilling”) if they do not agree to mediation within whatever framework the working group establishes?

Other questions involve the timing of the work.  The initial release states that the Working Group will prepare an “initial discussion paper” and then allow for relevant stakeholder comments and suggestions.  “Stakeholders will have the opportunity to submit their feedback on the discussion paper until mid-September 2026 . . .”  But, it already is nearly August, the month that Europeans traditionally go on vacation.  If the PMAC WG has not yet started on this discussion paper, how are they supposed to complete it and make it available for comment by stakeholders sufficiently before mid-September to make the comment period meaningful?  If they have started it, why did the PMAC wait to announce the formation of the working group until after it was already working on this paper? 

One of the problems with mediation and arbitration is that the proceedings are closed door and the decisions confidential.  Europe claims to value transparency for FRAND issues. Will the PMAC WG review the confidentiality problem and propose solutions to it?  Or will it enshrine the concept that SEP licenses, and mediation/arbitration decisions about FRAND rates, should always be confidential?

I hope that the PMAC WG will come up with innovative and thoughtful solutions to the existing issues in FRAND licensing.  But the jury remains out as to which side of the fence the PMAC WG will end up on - will it help or hinder the process of finding a better mechanism to make FRAND determinations?

[1]          Courts that “FRAND” Differently Part 2: Lessons To Be Learned

[2]          See, WIPO Strategy on Standard Essential Patents 2024-2026; Launch of the WIPO report “FRAND Economics: Valuation Methods in Licensing Standard Essential Patents”; Transparency, Transparency, Transparency; Level Playing Field: Upcoming WIPO Seminar Explores SEPs and Global Dispute Settlement; and WIPO ADR for SEP/FRAND Disputes.

[3]          See, Global Dominance – The U.S.A.’s Views on Standards and SEPs.  The bias is perceived to be so extreme that the Director of the German Competition Authority (Bundeskarellamt) apparently said in a public forum  (Oxfora’s 14^th Intellectual Property and Competition Forum on June 23-24, 2026) that key U.S. decision makers are in Ericsson’s pockets. 

[4]          PMAC Establishes Working Group to Develop FRAND Guidelines

[5]          see e.g. Anti-Suit Injunctions: Hypocrisy Reigns in the European Union and "Inconsistency" - Europe Dithers Some More.

[6]          See, Transparency, Transparency, Transparency.

[7]          Microsoft Word - DECISION on the Establishment of the PMAC FRAND Guidelines Working Group.  There are two UPC judges in the working group and a number of the participants already act as PMAC mediators.  But, I have already seen criticism of the membership because there are very few members with actual industry experience negotiating SEP licenses in the real world.