PTO Announcement of New SEP Working Group Continues Trend of Pro-Patent Initiatives

On December 29, 2025, the PTO announced the creation of a new Standard-Essential Patent (SEP) Working Group.¹ The stated purpose of the SEP Working Group is “to ensure[ ] that all patent holders … are treated fairly and that their rights receive strong and predictable enforcement wherever standards incorporate patented technologies.”² As explained below, the creation of the SEP Working Group is one of several pro-patent initiatives introduced by the PTO in the last year.

A standard-essential patent (SEP) is a patent that claims technology that is essential to the implementation of a particular technical standard.³ Some well-known standardized technologies that rely on SEPs include Wi-Fi, USB, and 4G LTE.⁴ Technical standards adopted by standard-setting organizations (SSOs) or standard-development organizations (SDOs) ensure safety, interoperability and compatibility of different products and services within an industry.⁵ As a condition of declaring a patent essential to a standard, SSOs/SDOs typically require the patent owner to license the patent on fair, reasonable and nondiscriminatory (FRAND) terms.⁶

According to the PTO’s announcement, “the SEP ecosystem has become increasingly hostile to innovators” because “[p]atent holders who contribute their technologies to standards face widespread efforts to devalue their contributions, unclear rules about their rights, and systematic suppression of licensing rates.”⁷ Therefore, “[t]o counter the erosion of patent holders’ rights,” the SEP Working Group “will use all available USPTO authorities to deliver meaningful policy solutions on SEP-related issues.”⁸

The announcement states that the SEP Working Group “will focus on three core objectives:

1. Restoring Robust Remedies for Patent Holders–Clarifying that valid patent rights, including SEPs, deserve strong and predictable enforcement;
2. 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
3. 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.”⁹

The SEP Working Group will report directly to PTO Director, John Squires, and will be co-chaired by PTO Deputy General Counsel for Intellectual Property Law and Solicitor, Nicholas Matich, and PTO Senior Legal Advisor, Austin Mayron.¹⁰

On January 13, 2026, the PTO announced the first initiative of the SEP Working Group: the creation of the Standards Participation and Representation Kudos (SPARK) Pilot Program.¹¹ The stated purpose of the SPARK Pilot Program is “to incentivize meaningful participation by U.S. small and medium-sized businesses, universities, and non-profits in standards development organizations (SDOs).”¹² Specifically, to overcome “resource constraints [that] often prevent smaller U.S. entities from participating meaningfully in SDOs,” the Program will “offer[ ] a limited number of acceleration certificates to eligible U.S. entities that make technical contributions to or otherwise meaningfully participate in SDO activities.”¹³ These certificates “will be redeemable at the USPTO to expedite examination of patent applications or appeals to the [PTAB].”¹⁴

The SEP Working Group and the SPARK Pilot Program are among several pro-patent initiatives introduced by the PTO in the last year. In particular, the PTO announcement of the SEP Working Group stated that it “builds upon the recent USPTO engagement on patent remedies and enforcement,” namely, the “selective[ ] and impactful[ ]” joint filings by the PTO and the DOJ Antitrust Division of submissions in two patent infringement cases.¹⁵

First, on June 24, 2025, the PTO and DOJ filed a statement of interest in Radian Memory Systems LLC v. Samsung Electronics Co., No. 2:24-cv-1073 (E.D. Tex.).¹⁶ In that case, Radian accused Samsung of infringing patents related to flash memory technology.¹⁷ Radian’s complaint alleged that its patented technology is central to industry standards but that Radian “was cast out by the industry” as “retaliation” for Radian’s refusal to join the relevant standard-setting organization, “which would have required Radian to give the industry royalty-free licenses to any of its patents that were practiced by implementations of the standards specifications.”¹⁸

The PTO/DOJ filed its statement of interest after Radian filed a motion for a preliminary injunction, in which Radian argued that it was suffering irreparable harm in the form of loss of market opportunities and market position because Radian was unable to compete with Samsung in the market by licensing its patented technology to Samsung and others.¹⁹

In the statement of interest, the PTO/DOJ argued that a patent owner that seeks to license its patent can suffer irreparable harm that warrants an injunction where damages are inadequate because they are “difficult and expensive to calculate.”²⁰ In particular, there can be “profound difficulties in calculating damages that adequately account for the patentee’s loss of control over how to license their patent”²¹ and there can be instances in which there is “no straightforward way to calculate the royalty a patentee would accept for a license that is not artificially suppressed and otherwise negatively impacted by the infringement.”²² Accordingly, “[t]he prospect of an injunction … provides patentees with important protections to control how or to whom to license its patented technology, as well as the terms of its licenses” and “also helps prevent potential licensees from viewing infringement as economically efficient.”²³

Second, on November 25, 2025, the PTO/DOJ filed a joint comment on the public interest in the ITC case In re Certain Dynamic Random Access Memory (DRAM) Devices, Inv. No. 337-TA-1472.²⁴ In that case, Netlist alleged that Samsung and Google infringe patents related to DRAM technology.²⁵ The PTO/DOJ comment highlighted the importance of ITC exclusion orders to protect the public interest and urged the ITC to “reject attempts to convert the public interest factors into preliminary obstacles to enforcement” and to address public interest factors only after finding infringement and validity.²⁶

In the SEP Working Group announcement, the PTO explained that “[t]he principles articulated” in these litigation submissions, namely, “that valid patents deserve strong protection, that injunctive relief serves important functions, that difficulty calculating damages can constitute irreparable harm, and that public interest favors enforcement of patent rights—provide the foundation for the SEP Working Group.”²⁷

The SEP Working Group, the SPARK Pilot Program, and the two PTO/DOJ submissions discussed above all reflect the PTO’s renewed interest in pro-patent initiatives over the last year. Together with the implemented and proposed changes to IPR/PGR institution practices also introduced by the PTO in 2025, these various PTO initiatives arguably are among the most far-reaching changes to the patent landscape since the AIA was enacted. It will be interesting to see what additional initiatives are introduced by the SEP Working Group—and the PTO—during the current PTO Director’s tenure. It will also be interesting to see whether any of these PTO initiatives will spur Congress to step in with legislation that strikes a different balance among the different interests at stake.