Standard essential patent (SEP)

Standards frequently refer to technologies that are protected by patents. The Commission gives long-term evolution (LTE), WiFi and Bluetooth as examples of standardized technologies protected by SEPs¹.

ETSI's test is technical, not commercial. A right is essential if a standard-compliant product or method cannot be made or used without infringing it, judged against normal technical practice and the state of the art generally available at the time of standardization². Where a standard can only be implemented by technical solutions that all infringe IPRs, all of those IPRs are considered essential². ETSI's definition of IPR covers any intellectual property right conferred by statute law, including applications, other than trademarks².

In Huawei v ZTE the EU Court of Justice observed that a patent essential to a standard makes its use indispensable to all competitors who want to make products that comply with the standard. It said this distinguishes SEPs from patents that are not essential, which normally allow third parties to make competing products without the patent⁴.

1. Members discloseEach ETSI member must use its reasonable endeavours to inform ETSI of essential IPRs in a timely fashion, in particular during the development of a standard in which it participates (clause 4.1). This does not oblige members to carry out IPR searches (clause 4.2)³.
2. ETSI asks for a licensing undertakingWhen an essential IPR is brought to ETSI's attention, the Director-General must immediately ask the owner to give, within three months, an irrevocable written undertaking that it is prepared to grant irrevocable licenses on fair, reasonable and non-discriminatory terms (clause 6.1). See FRAND³.
3. Patent families are treated togetherInforming ETSI of one member of a patent family in a timely fashion is deemed to meet the disclosure obligation for all existing and future members of that family (clause 4.3)³. A licensing undertaking given for one family member applies to all existing and future essential IPRs of the family, unless specified IPRs are explicitly excluded in writing when it is made (clause 6.2)⁵. See Patent family.
4. ETSI publishes the informationA published standard must include information on essential IPRs brought to ETSI's attention before publication (clause 7.1)⁵. ETSI's online IPR database gives public access to patents declared as essential or potentially essential to ETSI and 3GPP standards⁶.

The Commission states that declarations to standards bodies are based on a self-assessment by the patent holder and are not subject to scrutiny regarding the essentiality of the declared patent¹. It also reports that stakeholders say recorded declarations create a de facto presumption of essentiality in licensing negotiations¹. In 2017 it took the view that essentiality claims need a higher degree of scrutiny, for example by an independent party at the request of rightholders or prospective users¹.

• Declared: the holder told the standards body that the patent is, or may be, essential. ETSI's database lists patents declared as essential or potentially essential⁶.
• Essential: the technical test in ETSI's definition is met².
• Valid: a separate question. The Court of Justice noted that a standardization body such as the one in Huawei v ZTE does not check whether patents are valid or essential, and said an alleged infringer cannot be criticized for challenging validity or essentiality in parallel with license negotiations⁴. See Invalidity search.

Three terms often appear together in SEP disputes. They answer different questions^1,3,4.

• Commission Communication (2017). It sets out the Commission's approach to SEPs. It states that it is not intended to represent a statement of the law and is without prejudice to the interpretation of EU law by the Court of Justice¹.
• Court of Justice (2015). A SEP holder that has given an irrevocable undertaking to grant licenses on FRAND terms does not abuse a dominant position under Article 102 TFEU by seeking an injunction or product recall, as long as the conditions set by the Court are met⁴. These conditions matter only where the holder is in a dominant position. In Huawei v ZTE dominance was not contested, so the Court examined only whether there was an abuse⁴. The steps are set out on the FRAND page.
• Proposed Regulation (withdrawn). The Commission announced in its 2025 work programme that it would withdraw its proposal for a Regulation on standard essential patents (procedure 2023/0133(COD))⁷. It approved the withdrawal on 16 July 2025, and the withdrawal was published in the Official Journal on 6 October 2025⁸. On 14 November 2025 the European Parliament brought an action before the Court of Justice for annulment of that decision (Case C-727/25)⁹.