Published on: 4th December 2025
Authored by: Harini R
Saveetha school of law
Abstract
With the current age of digital technology, the war between open models of development and proprietary standards has given rise to an increasing number of legal disputes, particularly with Standard Essential Patents (SEPs) and Open-Source Software (OSS). SEPs are patents that include technology needed to implement industry standards, and their owners are generally required to license them in Fair, Reasonable, and Non-Discriminatory (FRAND) terms.
On the other hand, OSS is licensed to enable free use, modification, and sharing. Where platforms online take advantage of both standardized technologies and OSS, there are legal and licensing concerns. This study is interested in examining the legal disagreements emanating from the intersections of SEPs and OSS, particularly on virtual and online platforms
Key Debates in SEPs and OSS Licensing
The advanced economy flourishes on advancement, which is frequently driven by the synchronous advancement of Standard Essential Patents (SEPs) and Open-Source Software (OSS). SEPs are licenses that claim innovations basic to a specific industry standard, such as remote communication conventions (e.g., 4G, 5G).
Their holders are obliged to permit them on Fair, Reasonable, Sensible, and Non-Discriminatory (FRAND) terms to guarantee availability and standard compliance. To differentiate, OSS advances straightforwardness, collaboration, and royalty-free utilization under licenses just like the GNU General Public License (GPL) and Apache License, which struggle with prohibitively obvious licensing terms.
The coexistence of SEPs and OSS on the same advanced platforms, such as smartphones, IoT gadgets, and implanted systems, has driven complex legitimate pressures. Key issues incorporate obvious authorization, injunctive help, sovereignty requests, and the compatibility between FRAND commitments and open-source opportunities.
Whereas much of the statute stems from U.S. and European courts, Indian courts, and regulators have progressively locked in with SEP-related debate, setting imperative points of reference. Ericsson v. Micromax (Delhi High Court, 2013).
This was one of the major SEP debates in India. Ericsson charged that Micromax encroached on its SEPs related to GSM, EDGE, and 3G advances. The Delhi High Court allowed an interval sovereignty rate and emphasized the requirement for FRAND-based transactions.
It brought the SEP case into India’s legal spotlight. Koninklijke Philips v. Rajesh Bansal & Ors. (Delhi High Court, 2018) This was a point of interest in administering where the court held that Philips’ SEP on DVD video playback was substantial and encroached. The court emphasized that Indian law obviously recognizes the rights of SEP holders but also anticipates licensees to arrange under FRAND terms. Harms were granted to Philips, setting a point of reference for the SEP requirement in India.
These cases uncover that Indian statute is steadily advancing toward adjusting obvious holder rights with access to innovation, particularly in cases where OSS and standard-compliant advances coexist. Be that as it may, India right now needs a strong legal system, particularly addressing the interaction between SEPs and OSS.
As OSS proceeds to be coordinated into commercial stages that must comply with specialized benchmarks, the require for legal clarity gets to be basic. This investigation will investigate how Indian law translates SEP authorizing, the impact of competition law, and the challenges posed by coordinating open-source components in standard-compliant computerized stages.
It’ll also analyze the potential for administrative changes that can adjust India’s IP administration with worldwide patterns while ensuring advancement and public intrigued.
Research and Literary Works on SEP and OSS
In the article The Search for an Optimal Framework for Licensing Standard‑Essential tents: Is Collective Licensing a Solution?1, Fidelice Opany explores the viability of establishing a public, quasi-pool “Agency” as a multilateral licensing mechanism for Standard Essential Patents (SEPs), particularly in the evolving context of the Internet of Things (IoT).
Using a doctrinal and comparative legal approach, the study critically examines the limitations of the current FRAND (Fair, Reasonable and Non-Discriminatory) licensing regime and evaluates the proposed Agency model2 by comparing it to collective management systems used in copyright law.
The findings suggest that such an Agency could reduce transaction costs, prevent patent hold-up and hold-out, and streamline SEP negotiations, thereby fostering broader access to standardized technologies. The study concludes that while the model must be carefully balanced to protect patentees’ rights, it has the potential to enhance legal certainty and promote innovation within the EU’s digital economy.
Brachtendorf et. Al3 This book chapter outlines the evolving legal, economic, and policy dimensions of Standard‑Essential Patents (SEPs), synthesizing existing scholarship and identifying critical gaps in understanding.
Its objective is to chart a comprehensive research roadmap that bridges doctrinal legal analysis with empirical market realities. Employing a doctrinal and interdisciplinary approach, the author collates key research questions around SEP licensing, FRAND norms, enforcement, and competition policy.
The analysis highlights fragmented regulatory responses and inconsistencies in judicial approaches across jurisdictions, particularly in reconciling public interest with patent incentives.
It concludes that a well‑defined research agenda is pivotal to shaping cohesive legal frameworks that support innovation while preventing anticompetitive practices.
As a limitation, the chapter is conceptual rather than empirical, prompting future research to include data‑driven studies examining industry behavior under SEP regimes.
Brachtendorf, Gaessler & Harhoff. This paper presents a novel semantics‑based method to assess whether declared patents are genuinely Standard‑Essential is a challenging task due to the subjectivity of SEP declarations.
The authors developed a text‑mining methodology measuring semantic similarity between patent documents and standard specifications, validated through robustness checks. Results demonstrate significantly higher similarity scores for bona fide SEPs compared to non‑SEPs and show that high semantic similarity correlates with increased forward citations, a proxy for importance.
The study concludes that this scalable and replicable method can objectively distinguish true SEPs at both patent and portfolio levels, enhancing transparency. A noted limitation is its reliance on textual similarity, which may not fully capture technical subtleties or evolving standards.
Henkel (2022) investigates how the level within the value chain at which SEPs are licensed affects the efficiency of markets for technology (MFTs) in the IoT context. Through qualitative interviews with 30 participants across 22 firms, mostly startups, this study contrasts integrated licensing (to component implementers) with bifurcated licensing (to end product manufacturers). Findings reveal that bifurcated licensing introduces uncertainty around infringement, validity, and costs, disproportionately burdening SMEs and startups. A theoretical model is developed showing that downstream licensing can hamper innovation and entrepreneurship by fragmenting technical and licensing boundaries. The study recommends simplifying SEP licensing practices to support efficient technology markets. Its limitation lies in its qualitative focus, suggesting future quantitative analysis would deepen understanding.
Huang‑Chih Frank Sung (2018) examines how the initial ethos of open collaboration in blockchain development became strained as subsequent developers began patenting innovations based on open‑source core programs, raising concerns about innovation being impeded. Through a doctrinal and legal‑economic analysis, the study evaluates three potential licensing approaches: industrial‑standard models (endorsing SEP
disclosures and FRAND commitments), open‑source licensing (highlighting limitations of MIT and GPL in preventing follow‑on patenting), and open‑patent campaigns (acknowledging the difficulty of voluntary participation). Sung finds that although each model offers promise, such as broader access under FRAND or community-driven patent openness, none fully resolves the conflict between patent protection and open innovation. The article concludes that a hybrid or more nuanced licensing framework is necessary, while recognizing the persistent challenges inherent in voluntary patent disclosures and alignment of open‑source norms with IP enforcement.
Case Law on Standard Essential Patents in Europe (2021) The Huawei v. ZTE framework and other significant European court decisions that shaped SEP licensing are examined in this article, along with later decisions from Germany, the UK, and the Court of Justice of the European Union.
FRAND obligations, injunction eligibility, and the procedural responsibilities of SEP owners and implementers during negotiations are all examined by using a comparative case law analysis.
The results show that judges prefer to require sincere licensing offers before issuing injunctions, along with requirements for implementers to participate in a constructive manner.
According to the article’s conclusion, harmonizing SEP enforcement principles across the EU may lessen the uncertainty surrounding litigation. One drawback is that its main emphasis on telecommunications standards might not fully translate to newer technological areas like artificial intelligence or the Internet of Everything.
Methodological Study: Loopholes and Conflicts in Software Licensing
- Legal Nature and Enforceability of FRAND Licensing in SEP Regime
The relationship between Standard-Essential Patents (SEPs) and open-source software (OSS) licensing presents a critical intersection of patent law, contract law, and competition policy. Under the SEP regime, holders commit to license patents on Fair, Reasonable, and Non-Discriminatory (FRAND) terms, typically through Standard Setting
Organizations (SSOs), to ensure access to standardized technology and prevent monopolistic control.
Courts in jurisdictions such as the EU and USA have recognized FRAND declarations as enforceable under contract, competition, and equitable doctrines, with enforceability hinging on whether such commitments bind third-party implementers.
FRAND thus serves as a balancing mechanism between patent exclusivity and public access, mitigating anti-competitive risks and enabling interoperability.OSS licenses operate on a different value axis. Copyleft licenses like the GPL require source code disclosure, royalty-free redistribution, and license propagation, while permissive licenses such as Apache or MIT allow proprietary integration but still generally require royalty-free use.
Conflict arises when OSS implements a technical standard requiring SEP access, GPL’s mandatory royalty-free nature often clashes with FRAND’s potential royalty-bearing obligations, and even royalty-free FRAND terms may conflict with OSS’s unconditional openness due to procedural requirements like cross-licensing negotiations. Case law indirectly informs this debate. Jacobsen v. Katzer (2008) affirmed the enforceability of OSS licenses under copyright law, while SEP-related disputes such as Motorola Mobility v. Apple addressed the scope of “non-discriminatory” licensing and component-level compliance under FRAND.
Strategic SEP over-declaration and the historical absence of OSS considerations in SSO IP policies have created systemic incompatibility. Partial workarounds, such as dual licensing, Apache License 2.0’s patent clauses, and the European Union Public License (EUPL), offer limited harmonization but fail to resolve core conflicts. Theoretically, FRAND promotes standardization and incentivizes patent development, while OSS safeguards openness, transparency, and freedom from monopolistic control.
Reconciling these requires legal reform: SSOs should incorporate OSS-friendly terms, potentially through royalty-free patent pools or default OSS-compatible licensing; courts should refine doctrines to address SEP–OSS conflicts, possibly recognizing OSS licenses as public-benefit tools warranting antitrust immunity. Aligning these regimes is essential for fostering innovation in sectors like telecommunications, AI, and cybersecurity, where SEP dominance and OSS innovation frequently intersect.
- Compatibility and Conflict: SEP Licensing vs. Open-Source Software Models
Standard-Essential Patents are patents deemed essential to implement a given technical standard. Joining standard-setting organizations (SSOs) often obliges SEP holders to license their patents under FRAND conditions.
Such conditions are designed to balance innovation incentives and public access so that patented technology covered by standards is accessible to every implementer without exorbitant fees or discriminatory practices. Open-source software licensing lies on another value axis.
Licenses such as the GPL have source code disclosure, royalty-free redistribution, and license propagation requirements (copyleft). Effectively, once software is created under the GPL, derivative works are expected to be as open and free. Permissive licenses such as Apache or MIT have more freedom available, enabling them to be easily incorporated into proprietary codebases, but still usually require royalty-free usage and do not permit exclusive licensing provisions.
Conflict exists where software embodies a technical standard that calls for access to SEPs. The open-source license may require the software to be redistributable free of charge, whereas the SEP holder under FRAND conditions requires a negotiated royalty to utilize. This juxtaposition presents a standoff in law.
GPL’s mandatory royalty-free nature appears incompatible with FRAND’s potentially royalty-bearing form. Even where royalty is not levied, the procedural condition of cross-licensing negotiations is at odds with the open, nondiscriminatory character of open-source licenses. Courts and commentators have struggled with this conflict with increasing scrutiny.
In the landmark case of Jacobsen v. Katzer (2008), the Federal Circuit Court of Appeals reaffirmed that open-source licenses are valid as copyright law, delineating the legal
weight of copyleft provisions. At the same time, in SEP-specific instances such as Motorola Mobility v. Apple, the courts have tried to determine the breadth and implications of “non-discriminatory” licensing and whether component-level licenses are FRAND-compliant.
These cases indirectly touch upon not the SEP/OSS intersection but lay foundational principles that illustrate the incompatibility when both regimes are demanded concurrently. A central element of the debate is SEP holder and SSO strategic behavior. Critics have argued that there is too much patent declaration as necessary, creating a thicket that open-source developers will navigate gingerly. Even more fundamentally, the vast majority of SSOs have long not taken OSS into account when crafting their IP policies, leading to system-level neglect of software freedom in technical standardization. Loopholes are present and are at the forefront of allowing practitioners to bridge the two worlds of licensing.
Dual-licensing arrangements allow developers to publish software under a tight OSS license and a commercial proprietary license, permitting SEP owners to meet FRAND commitments in one channel while permitting OSS use on another.
Moreover, some open-source licenses (like the Apache License 2.0) do explicitly address patent rights, but they fall short of being FRAND royalty schemes. A useful workaround is the European Union Public License (EUPL), which sidesteps some of the difficulties by limiting the license scope to patents held by the licensor rather than third-party SEP commitments.
Although with limited implementation, it offers a draft for possible future harmonization. In spite of all these efforts, there are deep problems. The inflexibility of the GPL makes SEP-based standards incompatible with it. Holders of SEPs, in turn, often use FRAND to prohibit open-source projects and smaller developers from using SEPs by subjecting them to legal formality and licensing fees.
This has a chilling effect on OSS participation in standard-conformant software, especially in fields like telecommunications and cybersecurity, where the dominance of SEP is common. Nevertheless, each model carries built-in strengths. FRAND licensing promotes standardization and incentivizes patent holders, ostensibly fostering innovation. OSS licenses safeguard user freedoms, are transparent, and steer clear of monopoly power over technology. Ideally, those values shouldn’t clash with each other.
- Judicial and Regulatory Approaches to SEP Open Source Conflicts
SEPs are patents for which one would have to satisfy technical specifications, such as wireless communication or video compression standards. OSS hinges on openness, royalty-free redistribution, and use. The fundamental conflict arises when SEP proprietors demand licensing fees from OSS developers, potentially violating open-source fundamentals and triggering legal uncertainty.
In the EU, regulators and courts have tried to balance patent rights with competition law in principles such as abuse of dominance under Article 102 TFEU. In Huawei v. ZTE, the Court of Justice of the EU establishes a procedural roadmap in SEP licensing under which good-faith negotiations must be conducted by both implementers and patent owners. The European Commission tried to introduce sweeping regulations, such as a single SEP registry and compulsory arbitration. The reforms aimed to introduce transparency and reduce litigation, but after intense lobbying by corporations with high SEP content, the proposal was put on hold in early 2025, showing institutional sensitivity to corporate lobbying.
In the United States, a more contractual approach has been used for SEP disputes. In Microsoft v. Motorola, the court imposed RAND commitments by demanding reasonable royalty rates, suggesting that SEP owners cannot take advantage of their position to charge excessive prices. But in FTC v. Qualcomm, the Ninth Circuit reversed an antitrust ruling that found Qualcomm’s conduct anti-competitive, cementing SEP owners’ bargaining power.
The US government’s regulatory strategy has also changed, with agencies like the DOJ and USPTO offering indefinite guidance, heavily reliant on the ruling administration. India has gone down a unique route. For instance, in Ericsson v. Intex, courts recognized the enforceability of FRAND pledges but also reaffirmed SEP owners’ right to injunctions where implementers failed to negotiate in good faith. The Indian judiciary itself has grappled with issues of over-declaration of SEPs as well as the burden of small-scale developers.
The Competition Commission of India (CCI) itself has initiated inquiry into potential SEP abuse, though the same has been beset by judicial proceedings and procedural constraints. A variety of recurring problems skew the efficacy of SEP regulation in each of the three jurisdictions. Over-declaration allows patent holders to over-declare necessary rights over unnecessary patents, over-inflating royalty demands.
Confidential licensing terms obscure what is truly fair and reasonable and inhibit standardization. Jurisdictional discrepancies—such as differences in the handling of injunctions—invite regulatory arbitrage and forum shopping. The result is a unstable legal landscape capable of deterring innovation, especially for OSS projects that lack the resources to fight SEP assertions.
- Policy and Licensing Reform: Towards Harmonization of SEPs and Open-Source Ecosystems
Policy and licensing reform aimed at aligning the Standard-Essential Patents regime with the open-source software ecosystem faces significant legal and structural challenges that remain unresolved. The traditional SEP licensing model—rooted in proprietary rights and Fair, Reasonable, and Non-Discriminatory obligations—often conflicts with the open-source philosophy of unrestricted access, modification, and redistribution.
This tension reflects a deeper incompatibility between patent exclusivity, which seeks to protect innovation through controlled use, and collaborative innovation models, which thrive on openness and decentralization. Policymakers and scholars have increasingly called for legal frameworks that reconcile these paradigms through targeted licensing reforms.
Proposed mechanisms include patent pledges, FRAND-compatible open-source licenses, and clearer regulatory guidance that enable interoperability without compromising the enforceability of SEP rights.
Such approaches aim to address the inherent misalignment by adapting SEP licensing practices to the realities of modern, hybrid innovation environments where open-source components are embedded in standardized technologies.A consolidated and harmonized regime would provide legal certainty, reduce litigation risks, and ensure unhindered access to standardized technologies.
By balancing proprietary rights with open-source freedoms within a framework of legal and technical interoperability, such reform could foster a more equitable and efficient innovation ecosystem—one where proprietary and open-source models co-exist without undermining each other’s fundamental principles.
Suggestions and Conclusion
- Establish the Legal Foundations
Explain SEP rights, FRAND commitments to licensing, and OSS licensing models in doctrinal terms of patent, contract, and copyright law.
- Points of Conflict
Highlight the main incompatibilities between FRAND’s theoretical royalty aspirations and OSS’s royalty-free ethos, legal, procedural, and market impediments.
- Review Judicial and Scholarly Perspectives
refer to key cases (e.g., Huawei v. ZTE, Jacobsen v. Katzer) and scholarly proposals resolving SEP–OSS conflicts.
- Suggest Policy and Licensing Reforms
Suggest FRAND-compatible OSS licenses, updated SSO IPR policies, regulatory directions, and hybrid models of licensing to balance the two systems.
The intersection of Standard Essential Patents and Open-Source Software is one of the most troublesome and complex problems of the digital economy. As SEPs under the terms of Fair, Reasonable, and Non-Discriminatory (FRAND) strive to bridge patent exclusivity and ubiquitous access to standardized technology, OSS is based on openness, royalty-free provision, and collaborative innovation.
The intrinsic philosophical and structural variations between these systems have led to legal ambiguity, fragmented judicial reaction, and periodic market restrictions, especially where open-source projects seek to implement SEPs-encumbered standards.
Comparative analysis of the EU, U.S., and Indian systems illustrates the improvement but also the persistent inconsistencies in regulation, enforcement, and policy formulation. Such efforts as dual licensing, OSS-friendly patent clauses, and proposed policy reforms are promising but are only half-measures that are not even able to leap over the incompatibility chasm without broader systemic reform.
Convergence will entail collective reforms, trimming SSO policies to include OSS considerations, enhancing transparency of SEP licensing, and developing hybrid models that maintain both innovation incentives and software freedoms. It is only through the harmonization of legal, technical, and policy viewpoints that a stable, fair, and innovation-friendly environment can be attained, where standardization and openness fortify instead of debilitating one another.
REFERENCE
Fidelice Opany, The Search for an Optimal Framework for Licensing Standard‑Essential Patents: Is Collective Licensing a Solution?, 56 IIC – Int’l Rev. Intell. Prop. & Competition L. 523 (2025),.
Lars Brachtendorf, Florian Gaessler & Dietmar Harhoff, Truly Standard‑Essential Patents? A Semantics‑Based Analysis, 32 J. Econ. & Mgmt. Strat. 132 (2023),.
Henkel, J. (2022). Licensing standard‑essential patents in the IoT – A value chain perspective on the markets for technology. Research Policy, 51(10),Article104600. [
Contreras, J. L. (2022). A research agenda for standards‑essential patents. University of Utah
Sung, H.-C. F. (2018). When open source software encounters patents: Blockchain as an example to explore the dilemma and solutions. Journal of Marshall Review of Intellectual Property Law, 18, 55
Nikolaos A. Anagnostopoulos, Exploring the Complicated Relationship Between Patents and Standards, With a Particular Focus on the Telecommunications Sector, arXiv (Jan. 26, 2021) (reviewing policies and challenges arising from inclusion of patents in technical standards) .
Xuetao Li, Yuxia Zhang, Cailean Osborne, Minghui Zhou, Zhi Jin & Hui Liu, Systematic Literature Review of Commercial Participation in Open Source Software, arXiv (May 27, 2024) (offering a wide-ranging survey of how companies engage with open-source ecosystems) .
Mark A. Lemley, Antitrust, Intellectual Property and Standard-Setting Organizations, arXiv (Sept. 20, 2001) (a foundational legal review of how SSOs handle IP and influence whether standards become open or proprietary)
“Case Law on Standard Essential Patents in Europe”, ERA Forum (2021) (analyzing major European jurisprudence such as Huawei v. ZTE—balancing SEP owners’ rights with implementers) .
Benjamin Henkel, Licensing Standard-Essential Patents in the IoT – A Value Chain Perspective on the Markets for Technology, Research Policy 51:104600 (2022) (examining IoT-specific SEP licensing dynamics and value-chain implications)
