On December 29, the US Patent and Trademark Office (US{TO) announced the formation of what it described as a “Standard-Essential Patent Working Group to renew American leadership in technology standards.” That announcement includes perhaps the strongest statement yet of the Administration’s stand on the proper balance of power between the owners of patents with claims that would be necessarily infringed when a standard is used to create a product (a “standards essential patent”, or “SEP”) and the implementers of that standard. Where it stands is solidly on the side of SEP owners.
Prior to Trump’s first term, there was a greater balance between the rights of the two sides (some contend there was a bias in favor of standards implementers over SEP owners). The details often came down to when certain legal remedies, such as injunctions, should be available, and to whom.
This balance shifted to favor SEP owners during President Trump’s first term in office, with the administration acting primarily through the Department of Justice Antitrust Division. Assistant Attorney General Makan Delrahim became a frequent and forceful spokesperson for this new direction. When Trump left office, the Biden administration swung back partway to the policies of earlier administrations, adopting what it referred to as a “case by case” approach. This left many wondering what would happen when Trump returned to office.
The assumption was that the pendulum would swing back as far, and perhaps farther to the side of SEP owners than before. How the administration would operationalize that reversion in policy, however, remained to be seen.
The answer first became evident over the summer when the USPTO joined with the Department of Justice Antitrust Division in filing a pro-SEP owner “statement of interest” with a court that was hearing a dispute between Radian Memory Systems LLC and Samsung Electronics Co.
The two agencies next acted by filing a first-ever “public interest statement” with the US International Trade Commission in November in connection with a SEP related injunction consideration. In that statement, the agencies asserted that “the public interest overwhelmingly favors the enforcement of valid patent rights” through the use of an injunction in the context of the SEP dispute before the court.
The latest, year-end announcement is perhaps less significant for the action proposed (the formation of a working group with no inherent power) than for the increased emphasis on SEP owners’ rights, and for the fact that the administration is becoming more active in supporting those rights. The press release opens with a measured statement:
The new SEP Working Group will be dedicated to ensuring that all patent holders—regardless of their size or sophistication—are treated fairly and that their rights receive strong and predictable enforcement wherever standards incorporate patented technologies.
While acknowledging that “Standards form the backbone of many modern technologies,” the tone changes as the announcement continues, stating that:
[T]he SEP ecosystem has become increasingly hostile to innovators. Patent holders who contribute their technologies to standards face widespread efforts to devalue their contributions, unclear rules about their rights, and systematic suppression of licensing rates.
Not everyone would agree with those characterizations. The working group, the press release continues, has been formed to:
[C]ounter the erosion of patent holders’ rights and ensure that American inventors—whether they work for Fortune 500 companies, small startups, universities, or in their own garages—can obtain meaningful protection for their breakthroughs.
It should be noted that no SEP owner is ever compelled to license their patent claims. That obligation arises only when the owner voluntarily joins a standards development organization (SDO) and thereby becomes subject to its intellectual property rights (IPR) policy. Even then, virtually all such policies permit the owner of a SEP to withhold the relevant patent claims.
The policy question the administration is addressing is thus whether the benefits a SEP owner gains from voluntarily making its technology available are commensurate with the benefits it is permitted to receive under the relevant SDO policy and applicable law. In a September 2025 speech by Deputy Assistant Attorney General Dina Kallay, notice was provided that the DOJ will also be looking into whether it believes some IPR policies unfairly limit SEP owner rights, and whether some SDOs might be adopting standards with knowledge that the standards would infringe the rights of SEP owners who had not committed to reasonable and nondiscriminatory (RAND) licensing terms.
We will need to wait to see how quickly the new working group will be constituted, what it will recommend, and what action, if any, will follow based on its output. When it does begin work, it will report directly to USPTO Director John A. Squires, and will have these “core objectives”:
- Restoring Robust Remedies for Patent Holders–Clarifying that valid patent rights, including SEPs, deserve strong and predictable enforcement;
- Facilitating Meaningful Participation in Standards Development–Exploring mechanisms to incentivize and enable broader participation in standard developing organizations (SDOs), particularly by small and medium-sized U.S. enterprises; and
- Engaging Stakeholders and Promoting Transparency Across the Innovation Ecosystem–Creating channels for dialogue with patent holders, implementers, SDOs, and other stakeholders to understand the challenges they face and identify solutions, and supporting these groups by developing resources to increase predictability in SEP licensing negotiations and standards development.
The announcement also states that the working group “will welcome and encourage input from stakeholders across the innovation ecosystem.”
When the door is opened for that input, there will certainly be a vigorous response from both sides of the debate.