USPTO Formalizes New SEP Working Group
Resetting the table for standards-based licensing
The United States Patent and Trademark Office (USPTO) has established a new Standard-Essential Patent (SEP) Working Group, a move that signals a formalized shift toward strengthening patent remedies and supporting licensors in the standardization ecosystem.
Reporting directly to Director John A. Squires, this SEP group aims to counter what the agency describes as an environment “increasingly hostile to innovators,” where patent values are frequently suppressed.
This initiative does not emerge in a vacuum. It follows a series of aggressive legal filings by the USPTO and the Department of Justice (DOJ) Antitrust Division in late 2025, which collectively argue that the dilution of injunctive relief undermines the constitutional purpose of the patent system.
A Track Record of Intervention
The formation of the SEP Working Group effectively institutionalizes the policy positions the USPTO has advocated in recent months. Two specific filings illustrate the agency’s current direction regarding the availability of exclusionary remedies.
The Radian Statement of Interest: Rethinking Irreparable Harm
In June 2025, the USPTO and DOJ filed a Statement of Interest in Radian Memory Systems LLC v. Samsung Electronics Co. in the Eastern District of Texas.
The government intervened to support the availability of preliminary injunctions, challenging the notion that non-practicing entities (NPEs) or licensors cannot suffer irreparable harm.
The agencies argued that “irreparable harm is common in patent infringement cases because patents are hard to value and damages are difficult to calculate” (Radian, p. 7).
The filing notably criticized the reliance on licensing history as a basis to deny injunctions, stating that “disputes about the difficulty of calculating damages” often arise precisely because “loss of control over a unique asset” is at stake (p. 9).
The USPTO’s position in Radian suggests that even where a patent holder is willing to license, the inability to control the terms of that license due to infringement constitutes a harm that monetary damages cannot easily rectify.
The brief explicitly noted that without the threat of an injunction, “a calculating infringer may [] decide to risk a delayed payment to obtain use of valuable property without prior negotiation” (p. 12).
The DRAM Joint Comment: The ITC as “Border Guardian”
More recently, in November 2025, the USPTO and DOJ submitted a Joint Comment to the International Trade Commission (ITC) in Certain Dynamic Random Access Memory (DRAM) Devices. This filing addressed the “public interest” factors that the ITC must consider before issuing exclusion orders.
The agencies took a firm stance that the public interest generally aligns with enforcement. The comment argued that “the public interest overwhelmingly favors the enforcement of valid patent rights through exclusion orders” (DRAM, p. 5).
The filing cautioned against allowing public interest factors to become “procedural obstacles to meritorious complaints,” asserting that such an approach “inverts Congress’s carefully designed statutory scheme” (p. 4).
The USPTO further characterized the ITC as the “indispensable border guardian of American ingenuity,” noting that exclusion orders vindicate, rather than harm, the public interest (pp. 3, 5).
The SEP Working Group’s Mandate
Co-chaired by Deputy General Counsel Nicholas Matich and Senior Legal Advisor Austin Mayron, the new SEP Working Group is tasked with operationalizing these legal stances into broader agency policy.
The group has three stated “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.
Broader Implications on Patent Rights
While the SEP Working Group specifically addresses the standardization ecosystem, the legal principles driving its formation rely on broad interpretations of the Patent Act that could reshape licensing for non-essential assets as well.
The USPTO’s recent filings articulate a “property-centric” view of patent law that applies to all inventors, not just SEP holders. The agency argues that patents are “constitutional property rights” (DRAM, p. 2) and that courts should not “entirely ignore the fundamental nature of patents as property rights,” even when the patentee does not practice the invention (Radian, p. 7).
If this philosophy—which treats patents as exclusive assets rather than liability rule entitlements—becomes the administrative standard for SEPs, it logically raises the baseline for remedies across the board. Non-SEP licensors may find courts increasingly receptive to the argument that “loss of control over a unique asset” constitutes irreparable harm, regardless of essentiality (Radian, p. 9).
The government’s critique of “efficient infringement” extends beyond FRAND-encumbered patents. In Radian, the USPTO warned that limiting injunctions encourages a “calculating infringer” to simply “risk a delayed payment to obtain use of valuable property without prior negotiation” (Radian, p. 12). This logic targets a “hold-out” behavior seen in many technology sectors.
By explicitly linking such behavior to the erosion of patent value (Radian Brief, p. 14), the USPTO provides a potential roadmap for non-SEP plaintiffs to argue that monetary damages are inadequate to deter willful infringement in the general marketplace. Still, courts have historically distinguished SEPs due to unique “hold-up” risks, and persuading them to apply a uniform “property right” standard to all patent disputes will require overcoming entrenched judicial skepticism regarding NPEs.
Moreover, the USPTO’s stance in DRAM suggests a narrowing of defenses for all ITC respondents. The agency asserts that the public interest “overwhelmingly favors the enforcement of valid patent rights” and that public interest factors should not become “procedural obstacles” to relief (DRAM Brief, pp. 4, 5).
If the ITC adopts this deferential standard for SEPs—where consumer impact arguments are often strongest—it effectively closes the door on such defenses for non-essential technologies, where the argument for keeping infringing imports on the market is arguably weaker.
Thoughts & Analysis: Benefits, Challenges, and Risks
For patent owners, particularly those heavily invested in R&D for 5G, Wi-Fi, and AI standards, this development offers a potential restoration of leverage. By signaling that the U.S. government supports injunctive relief even for SEPs, the USPTO may reduce the prevalence of “efficient infringement” strategies, where implementers delay licensing in hopes of paying court-determined rates years later. This could lead to faster, market-driven settlements and a more predictable return on investment for inventors.
Implementation of these policies will likely face stiff resistance from major technology implementers and automotive sectors, who often argue that injunctive relief on SEPs creates “hold-up” risks—allowing patent holders to demand supracompetitive royalties.
The SEP Working Group will need to balance the push for robust remedies with the practical necessity of keeping standards widely adoptable and affordable. Additionally, defining “fair” treatment for SMEs in SDOs is historically difficult given the resource disparities in the room.
The primary risk for practitioners lies in the oscillation of administrative policy. While the current leadership is clearly prioritizing the property rights aspect of patents, a future administration could revert to a focus on antitrust concerns and SEP “hold-up,” potentially rendering these new guidelines short-lived.
Furthermore, an aggressive push for exclusion orders at the ITC involving critical infrastructure technologies (like semiconductors or AI) could trigger political friction if such orders threaten domestic supply chains or consumer prices.
Conclusion
The launch of the SEP Working Group confirms that the USPTO is moving beyond rhetoric to active policy enforcement.
By aligning the agency’s administrative power with the aggressive legal theories advanced in the submissions for Radian and DRAM, the USPTO is looking to reset the baseline for SEP licensing negotiations.
Patent owners and practitioners should watch closely to see if the SEP Working Group’s output leads to formal rulemaking or further amicus participation in relevant Federal Circuit cases.
Beyond SEPs, IP practitioners should continue to prepare for a potential shift in licensing dynamics, even as they remain watchful of the judicial and political headwinds that often accompany such significant policy pivots.
Disclaimer: This is provided for informational purposes only and does not constitute legal or financial advice. To the extent there are any opinions in this article, they are the author’s alone and do not represent the beliefs of his firm or clients. The strategies expressed are purely speculation based on publicly available information. The information expressed is subject to change at any time and should be checked for completeness, accuracy and current applicability. For advice, consult a suitably licensed attorney and/or patent professional.