This guide is written for solicitors, trainees and law students in England and Wales.
FRAND stands for fair, reasonable and non-discriminatory, and it describes the terms on which the owner of a standard essential patent has promised to license it. This explainer covers what SEPs and FRAND commitments are, how the English courts came to set global licence rates, and where jurisdiction now stands after the Supreme Court opened patent pool rates to challenge in Tesla v InterDigital.
Who is this guide for?
Commercial and IP practitioners advising implementers or patentees on standards-based technology, in-house counsel at any business that ships connected products, and litigators weighing where a licensing dispute should be fought. It will also serve students and junior lawyers who keep meeting the acronym in commercial awareness contexts and want the machinery underneath it, because FRAND disputes now sit at the intersection of contract, competition and private international law.
What are standard essential patents and FRAND commitments?
Modern technical standards, such as 4G and 5G, are written collaboratively at standards bodies, of which ETSI is the most important for telecoms. A patent is “essential” to a standard when the standard cannot be implemented without infringing it, which hands the patentee a potential veto over the entire market. Standards bodies defuse that veto by requiring members to give an undertaking, under the ETSI IPR Policy, to license their declared-essential patents on FRAND terms. The undertaking is a contract governed by French law that any implementer can enforce, and it converts the patentee’s right to exclude into a right to be paid a fair price. The English courts’ distinctive contribution, beginning with Unwired Planet v Huawei in 2020, was to hold that a court seised of UK patents can determine the terms of the global licence that a FRAND commitment requires, and can put an implementer to an election between taking that licence and being injuncted here.
What did Tesla v InterDigital change for patent pools?
Much of the market does not license bilaterally at all. Pools and platforms such as Avanci aggregate the SEPs of dozens of owners and offer a single licence at a single price, which for the Avanci 5G vehicle platform was $32 per vehicle, and until this summer it was unclear whether any court could scrutinise that price. The Supreme Court’s decision in Tesla v InterDigital [2026] UKSC 27 resolved the point in the implementer’s favour: the FRAND commitment survives the choice to license jointly, the administrator is a proper and indeed essential party even though it owns no patents and gave no undertaking, and an implementer may seek declarations on whether a pool rate is FRAND and what rate would be. The court also confirmed service on a patentee at its registered UK IPO address under CPR 63.14(2), held the claims within Gateways 3 and 11, and found Delaware unavailable as an alternative forum, points explored in our guide to serving out of the jurisdiction.
Advising on a pool offer: a working sequence
- Identify the commitment: pull the ETSI (or other SSO) declarations for the principal licensors on the platform, since the enforceable FRAND promise is theirs, not the administrator’s.
- Map the licence structure: platform-only, bilateral carve-outs, or both, and note whether the platform rate is presented as non-negotiable.
- Benchmark the rate: comparable licences, prior judicial determinations and the platform’s own public rate cards are the raw material a court will use.
- Preserve the jurisdiction option: an implementer with UK sales can now seek English declarations proactively, and a patentee should assume the rate can be tested.
- Check service exposure: a UK IPO registered address is now a service address for claims relating to the patent.
- Sequence carefully against any foreign proceedings, since parallel rate-setting actions raise anti-suit and case management questions the courts are still working through.
Common mistakes
The recurring errors are structural rather than arithmetical. Advisers treat the pool administrator as irrelevant because it gave no undertaking, when the Supreme Court has now described it as the essential party to any rate determination. Implementers assume a non-negotiable platform price is beyond challenge, or conversely assume that starting English proceedings guarantees a lower rate, when Unwired Planet cuts both ways and a court-set rate can exceed the offer. Patentees forget that their individual ETSI commitments reach the joint offer, and both sides underestimate how far commercial practice, rather than doctrinal purity, drives the analysis at every level of the English courts.
Pool licensing covers a growing share of the SEP economy, and until July 2026 its prices sat outside judicial scrutiny anywhere in the world. England is now the venue where a pool rate can be tested at an implementer’s initiative, which changes negotiating leverage in every platform discussion touching UK sales.
Official sources
The judgment and press summary are on the Supreme Court’s case page, and the FRAND undertaking regime is set out in the ETSI IPR Policy. The trial of what rate is actually FRAND for the Avanci 5G platform is yet to come, and this guide will be revisited when it is listed.
Date last updated: 14 August 2026.