Standard-Essential Patents and FRAND

Common situations.

• A device maker is sued on cellular patents after licensing talks break down.
• A patent owner wants to know whether it can seek an injunction on a FRAND-committed patent.
• The parties disagree whether the royalty should be based on a chip or the whole phone.
• One side has also sued abroad and the other wants a U.S. court to stop the foreign case.

What a FRAND commitment is.

Standards bodies such as ETSI (cellular) and IEEE (Wi-Fi) ask members to disclose patents that may be essential and to commit to license them on FRAND terms. U.S. courts treat that commitment as a contract that standard implementers can enforce as third-party beneficiaries (Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024 (9th Cir. 2015)). The ETSI policy is governed by French law, which U.S. courts apply when interpreting it.

Infringement and essentiality.

A patent owner may prove infringement by showing that the claims cover the standard and that the accused product practices it. Whether a claim is essential is a question of fact. In 2026 the Federal Circuit affirmed an Eastern District of Texas jury verdict rejecting a patent owner's essentiality theory, noting that the standard itself took no position on essentiality and allowed alternatives (TQ Delta, LLC v. CommScope Holding Co., Nos. 2024-1587, -1588 (Fed. Cir. Apr. 24, 2026) (nonprecedential)).

Royalties and damages.

• Apportionment. Damages for an SEP must reflect the value of the patented technology, not the value of standardization itself, and the jury should be instructed accordingly (Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir. 2014)).
• Royalty base. Implementers often argue that royalties should be based on the smallest component that practices the patent, such as a baseband chip. The Fifth Circuit has held that the ETSI policy does not require that approach, and that industry practice generally bases FRAND licenses on the end device (HTC Corp. v. Telefonaktiebolaget LM Ericsson, No. 19-40566 (5th Cir. Aug. 31, 2021), affirming an Eastern District of Texas jury verdict).
• FRAND as a contract claim. Whether an offer complied with FRAND is a contract question. Patent damages rules can inform, but do not control, that analysis (HTC v. Ericsson).
• Global portfolios. Courts in the United Kingdom will set terms for a global portfolio license and may enjoin an implementer that refuses to take it (Unwired Planet Int'l Ltd. v. Huawei Techs. Co. [2020] UKSC 37). U.S. courts generally decide only U.S. patents unless the parties agree otherwise.

Injunctions and parallel foreign cases.

• Injunctions. Courts apply the eBay factors, and a FRAND commitment makes irreparable harm hard to show, though an injunction may be justified against an implementer that refuses a FRAND license or unreasonably delays (Apple Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014)). A patent owner that made a FRAND commitment must at least first negotiate in good faith before seeking injunctions against implementers (Ericsson Inc. v. Lenovo (United States), Inc., No. 2024-1515 (Fed. Cir. Oct. 24, 2024)).
• Antisuit injunctions. A U.S. court may bar a party from enforcing a foreign injunction if the U.S. case will resolve the issue. The Federal Circuit has held that this can be satisfied when the U.S. case would decide whether foreign injunctions are permitted, even if it would not end the foreign case (Ericsson v. Lenovo).
• Verdict form errors. In SEP cases with several patents, separate questions for each patent are essential. The Federal Circuit vacated a $300 million Eastern District of Texas verdict on cellular patents in part for that reason (Optis Cellular Tech., LLC v. Apple Inc., Nos. 2022-1904, -1925 (Fed. Cir. June 16, 2025)). See Patent Trials.

Texas notes.

• The Eastern District of Texas is a leading U.S. forum for SEP disputes, including cases on cellular, Wi-Fi, and broadband standards. Juries there have decided both infringement and FRAND contract claims.
• Because the Fifth Circuit hears appeals of FRAND contract claims that do not arise under patent law, its decision in HTC v. Ericsson is especially important in Texas.

Sources.

• ETSI Intellectual Property Rights Policy, Annex 6.
• Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024 (9th Cir. 2015); Apple Inc. v. Motorola, Inc., 757 F.3d 1286 (Fed. Cir. 2014).
• Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201 (Fed. Cir. 2014).
• HTC Corp. v. Telefonaktiebolaget LM Ericsson, No. 19-40566 (5th Cir. Aug. 31, 2021).
• TQ Delta, LLC v. CommScope Holding Co., Nos. 2024-1587, -1588 (Fed. Cir. Apr. 24, 2026) (nonprecedential).
• Ericsson Inc. v. Lenovo (United States), Inc., No. 2024-1515 (Fed. Cir. Oct. 24, 2024).
• Optis Cellular Tech., LLC v. Apple Inc., Nos. 2022-1904, -1925 (Fed. Cir. June 16, 2025).
• Unwired Planet Int'l Ltd. v. Huawei Techs. Co. [2020] UKSC 37.

This guide is general information, not legal advice. Law checked through October 20, 2026. See the Disclaimer.