The Outlook for SEPs in 2025: Anti-Suit Injunctions, DOJ Policy and GenAI

Standard essential patent (SEP) licensing and litigation continues to be an important concern for many of the world’s biggest companies. Standardized technologies are ubiquitous in today’s global marketplace — incorporated in products ranging from mobile phones and computers to vending machines and refrigerators. Likewise, companies have continued to devote significant resources to protecting innovations relating to standards. SEP awareness and risk assessment, therefore, remain critical.

This article addresses four key categories likely to affect the SEP licensing and litigation landscape in 2025.

I. Anti-Suit Injunctions in 2025

Quick takeaway: potential uptick in anti-suit injunction motions motivated by the Ericsson v. Lenovo Federal Circuit decision

Given the global nature of SEP disputes, SEP litigations often proceed in multiple jurisdictions simultaneously. These parallel litigations can consider related issues, including infringement and validity of patents from the same family; the parties’ negotiation conduct, often relating to the global portfolio; and the parties’ fair, reasonable, and non-discriminatory (FRAND) licensing obligations. To manage potentially conflicting decisions from different tribunals, parties have historically sought anti-suit injunctions (ASIs), i.e., requests that a court order a party not to initiate, proceed with, or enforce a related foreign proceeding.

ASIs are attracting renewed interest after the Federal Circuit’s Ericsson v. Lenovo decision, which examined the appropriateness of an ASI to prevent Ericsson (the SEP holder) from enforcing injunctions issued in Colombia and Brazil given the co-pending, related U.S. litigation. Telefonaktiebolaget LM Ericsson v. Lenovo (United States), Inc., 120 F.4th 864 (Fed. Cir. 2024). The District Court denied Lenovo’s ASI request, finding the domestic suit was not “dispositive” of the foreign litigations because the domestic suit would not necessarily result in a global cross-license or resolve the foreign infringement issues. Telefonaktiebolaget LM Ericsson v. Lenovo (United States), Inc., No. 5:23-cv-00569-BO-RJ, 2024 U.S. Dist. LEXIS 26060, at *23–28 (E.D.N.C. Feb. 14, 2024).The Federal Circuit reversed and remanded, holding that “the ‘dispositive’ requirement can be met even though a foreign antisuit injunction would resolve only a foreign injunction (and not the entire foreign proceeding), and even though the relevant resolution depends on the potential that one party’s view of the facts or law prevails in the domestic suit.” Ericsson, 120 F.4th at 875 (emphasis added). Netgear, Inc. v. Huawei Techs. Co., Ltd., No. 2:24-cv-00824-AB-AJR (C.D. Cal.) ECF No. 127 (Dec. 4, 2024) (Def.’s Mot. for Anti-Enforcement Inj.).

Future SEP litigants are likely to consider the Ericsson decision when deciding whether to move for an ASI. Relatedly, if ASIs gain traction, foreign anti-anti-suit injunction requests may also catch on. We will monitor parties’ reliance on Ericsson and any ripple effects therefrom.

II. Department of Justice SEP Policy in 2025

Quick takeaway: potential revision to the Department of Justice (DOJ) policy governing SEP-based injunctions

Each of the Obama, Trump, and Biden administrations have adopted different positions with respect to whether public policy supports the use of injunctions to enforce SEP rights. Litigants should watch for changes under the second Trump administration.

Obama administration. In 2013, the DOJ and United States Patent and Trademark Office (USPTO) released the 2013 Statement concluding that injunctive relief was generally inappropriate for FRAND-encumbered SEP infringement — compensation with money damages instead would be sufficient. Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, Jan. 8, 2013. While the 2013 Statement contemplated injunctions “in some circumstances,” such as a licensee’s refusal to take a FRAND license (Id. at 7.), the U.S. Trade Representative nonetheless acted on the policy, disapproving of an International Trade Commission (ITC) investigation’s SEP-based exclusion orders. Amb. Michael B.G. Froman, United States Trade Representative, Disapproval of the U.S. Int’l Trade Comm’n Determination in the Matter of Certain Elec. Devices, Including Wireless Comm’cn Devices, Portable Music and Data Processing Devices, and Tablet Computers, Investigation No. 337-TA-794 (Aug. 3, 2013),.

Trump administration. In 2019, the DOJ, USPTO, and National Institute of Standards and Technology (NIST) issued the 2019 Statement withdrawing the 2013 Statement. Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, Dec. 19, 2019. The 2019 Statement provided that ITC exclusion orders should be “equally available in patent litigation involving standards-essential patents,” that “there are no special rules limiting the remedies available for the infringement of any standards-essential patent, whether subject to a F/RAND commitment or not,” and that antitrust laws should not be implicated in SEP licensing disputes. Id. at 4 n.9–10, 5.

Biden administration. In 2022, the DOJ, USPTO, and NIST issued the 2022 Statement withdrawing the 2019 Statement. Withdrawal of 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments, June 8, 2022. It advised courts to assess on “a case-by-case basis” whether an SEP holder could seek injunctive relief but expressly did not reinstate the 2013 Statement. Id. at 1 n.1, 2. No holdings addressing injunctive enforcement of SEPs have issued since then.

Given each administration’s articulation of its own policy regarding SEP enforcement, we expect the second Trump administration to provide updated guidance. We will monitor and report whether this administration reverts to the prior Trump administration position or charts a new position.

III. Issues to Watch in 2025

Quick takeaways: progeny of the Ericsson v. Lenovo decision relating to ASIs ; new Unitary Patent Court (UPC) cases implementing the Mannheim Local Division’s judgment in Panasonic v. Oppo relating to judging FRAND negotiation conduct; and shifts in SEP activity in China and India.

A number of current SEP litigations concern noteworthy issues that may be addressed in 2025.

Ericsson v. Lenovo. As described above, the Eastern District of North Carolina’s ultimate resolution of Lenovo’s ASI request on remand and other subsequent ASI requests will be closely watched.

Panasonic v. Oppo. The UPC Mannheim Local Division’s judgment in Panasonic v. Oppo, the UPC’s first SEP dispute resolution, may likewise shift SEP strategy. Panasonic Holds. Corp. v. Guangdong OPPO Mobile Telecommc’ns Corp. Ltd., UPC LD Mannheim, CFI 210/2023, Nov. 22, 2024. There, the UPC endorsed a more flexible approach to evaluating SEP negotiations compared to the Court of Justice of the European Union’s Huawei v. ZTE “FRAND Dance” framework. Case C?170/13, Huawei Techs. Co. Ltd. v. ZTE Corp., July 16, 2015. One consequence of Panasonic v. Oppo is that implementers may be required to take concrete, pre-litigation steps to show good-faith engagement in the FRAND Dance. One concern from commentators is that showing good faith may require an implementer to enter an interim license at the SEP holder’s proposed royalty rate.

Shifts in global SEP litigation venues. In 2025, we are following developments in China and India that may lead to increased filings in those countries. Recent Chinese rulings potentially increasing litigation predictability may attract more SEP filings, including China’s first global FRAND rate determination (See Nokia v. OPPO, 2021 Yu 01 Min Chu No. 1232, (First Intermediate People’s Court of Chongqing Municipality, Nov. 28, 2023).) and detailed guidance on FRAND negotiation analysis (See Advanced Codec Techs. v. OPPO, 2022 Zui Gao Fa Zhi Min Zhong Nos. 907, 910, 911, 916, 917, 918 (Supreme People’s Court, Jan. 15, 2024).). High potential damages in India, spurred by a decision allowing an SEP holder to base damages on its entire portfolio, not just the patents-in-suit, may also increase filings. See Lava Int’l v. Telefonaktiebolaget LM Ericsson, CS(COMM) 1148/2016 (Delhi High Court, Mar. 28, 2024).

IV. Generative Artificial Intelligence SEP Analysis in 2025

Quick takeaway: Actors and advisors are beginning to use Generative artificial intelligence (AI) to assist in portfolio-wide patent analysis, enabling a more robust evaluation of strength, value, and licensing potential in SEP negotiations.

Traditionally, parties negotiating SEP licenses relied on portfolio valuations based on analysis of selected “proud” patents or black-box analysis performed by third parties because analysis of the entire portfolio was financially or practically impossible. Generative AI has the potential to drastically reduce the time required to perform a full portfolio analysis. For example, Fish & Richardson P.C. has begun testing tools that perform portfolio-wide SEP analysis examining (i) portfolio coverage of technical standards, (ii) patent assertion strength, and (iii) comparative analysis against competitor portfolios. While generative AI analysis must be audited and results examined according to the capabilities of the tool employed, generative AI may dramatically transform the way SEP portfolios are analyzed, valued, negotiated, licensed, and litigated. We expect that parties will begin to use generative AI to assist licensing analysis and will continue to monitor that trend going forward.

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