The Shifting SEP Litigation Landscape: How Changes in the Types of Litigated SEPs Can Affect Implementers

Standard essential patent (SEP) litigation is becoming an increasingly important part of the patent litigation landscape. From 2020 to 2025, SEP litigation increased by approximately 15%. But more importantly, SEP litigation is becoming progressively diversified across standards. While traditionally focused on the cellular industry and standards set by the European Telecommunications Standards Institute (ETSI), SEP litigation is increasingly shifting toward video codec and Wi-Fi standards.

The impact of standard diversification in SEP litigation is twofold. First, the targets for SEP litigation are broader than they have been in the past. Products in the automotive, consumer electronics, mobile and telecommunications, streaming, and retail industries are all potential targets of SEP holders. Second, WiFi or video codec SEPs litigated between 2020 and 2025 have a much lower likelihood of being declared to their respective standard than cellular SEPs litigated in the same period Thus, defendants implementing Wi-Fi or video codec standards may not have the same FRAND defenses their counterparts in the cellular space traditionally have.

Standard setting organizations

Declarations of SEPs are submitted to different standard setting organizations (SSOs) depending on the technology. For cellular standards, SEP declarations are made to ETSI. For WiFi standards, declarations are submitted to the IEEE. For video codec standards such as H.264, HEVC (H.265), and VVC (H.266), declarations are submitted under the common ITU/ISO/IEC patent policy. For Qi wireless charging, declarations and licensing commitments are governed by the Wireless Power Consortium.

ETSI and IEEE require members to declare patents if they are potentially essential to a standard or technical specification in development.¹ Other SSOs also require patent disclosures and licensing commitments, but their policies generally are less explicit about an affirmative obligation to declare potentially essential patents at an early stage.² Across all of these organizations, there is no standards body that independently evaluates or verifies whether a declared patent is actually essential to the standard. Instead, declarations are made unilaterally by patent holders, and many SSOs expressly disclaim responsibility for assessing validity, scope, or essentiality.

Declared vs. undeclared SEPs

Some SSOs, like ETSI, typically require participants to declare patents that read on the standard as essential to the standard. To avoid antitrust concerns, participants typically must agree to license their declared patents on fair, reasonable, and non-discriminatory (FRAND) terms. Implementers accused of infringing an SEP have additional defenses related to FRAND commitments, including breach of duties of good faith and failure to offer FRAND rates.

But not all patents that read on a standard are declared to a standard. A non-member person or company could hold a standards-essential patent but never have participated in the SSO that set the standard. Those patent holders may not have FRAND commitments and, as such, FRAND-related defenses may not be available to implementers.

Analyzing the shifting landscape

Figure 1: Trends in litigated SEP standards (declared)

We surveyed patent litigation complaints filed in U.S. district courts from 2020 to 2025 to try and identify trends in SEP technologies. As highlighted in Figure 1, the number of litigated SEPs declared to ETSI standards has dropped significantly from 2020 to 2025. Conversely, the number of litigated SEPs declared to Wi-Fi and video codec standards increased, but not by enough to offset the ETSI standards’ decline. SEPs declared to the Qi standard saw a modest bump in litigation in 2023 and 2024 but were not involved in any suits we surveyed in 2025.

From 2020 to 2025, SEPs declared to video codec standards saw the largest increase, rising 263%. ETSI standards, on the other hand, saw a decrease of 32% — the largest drop. And SEPs declared to Wi-Fi standards saw litigation increase by 71%.

Figure 2 shows declared, undeclared, and total SEPs that were litigated from 2020 to 2025.³ In that period, the number of total litigated Wi-Fi SEPs increased by 98%. Similarly, the total number of litigated video codec SEPs increased by 103%. For Qi SEPs, litigation was flat, but experienced big increases from 2022 to 2024 compared to 2020. Overall SEP litigation increased by 15%, driven by a 76% increase in undeclared SEP litigation.

Figure 2: Trends in litigated SEP standards (declared and undeclared)

Declaration rates vary widely among the litigated standards. Litigated SEPs associated with ETSI standards included in this survey have a much higher declaration likelihood (100%) than litigated SEPs associated with other standards. At least 45% of litigated video codec, Wi-Fi, and Qi SEPs involved undeclared SEPs in each year from 2020 to 2025.

SEP litigation hot spots

Figure 3: SEP litigation heat map

Key recommendations for implementers across industries

As SEP litigation shifts to standards that have a higher percentage of undeclared SEPs, implementers are at higher risk of aggressive enforcement. Unburdened by FRAND commitments, undeclared SEP holders may attempt to assert their patents without offering FRAND rates. Companies that have products implementing standards should keep the following recommendations in mind to reduce their risk.

• Consider global company policy on approaches to using standardized technology (e.g., contracts, intellectual property, supply chain).
• Include indemnity and/or defense provisions for infringement in supplier contracts.
• Review any SEP demand letters to make sure the accused product practices the feature of the specification. Many specifications have optional features that accused products do not practice. If you don’t need the optional feature, consider requesting removal before hardware is shipped.

Industry-specific recommendations for implementers

Mobile and telecommunications

Although litigation involving cellular standards has declined from 2020 through 2025, enforcement activity by SEP holders remains an ongoing risk. Phone manufacturers, component suppliers, and network operators continue to face exposure from both cellular and WiFi SEP portfolios. To manage this risk, document standardcompliant functionality to specific products and include licensing and indemnity provisions in contracts with suppliers.

Automotive

Connected vehicles increasingly implement cellular (ETSI) and WiFi standards, drawing automakers and suppliers into SEP disputes that historically focused on mobile phones. Prioritize licenses and indemnities with component suppliers while documenting standardcompliant functionality at the billofmaterials level. Additionally, if possible, legal and engineering should assess whether products implement features that are optional or mandatory to standards.

Consumer electronics and IoT

Consumer electronics and IoT products — including laptops, wearables, and smart home devices — routinely implement WiFi and Qi wireless charging standards, significantly expanding the universe of SEP implementers. To mitigate exposure, confirm whether supplier licenses extend downstream. Consider negotiating licenses and indemnities in supplier agreements and assess whether products implement only baseline or mandatory standard features.

Streaming, media, and devices

Streaming services, smart TVs, gaming consoles, and connected media devices rely heavily on standardized audio and video codecs such as AVC (H.264), HEVC (H.265), and newer standards. Consider diligence related to which codec profiles are implemented, with particular attention to optional or advanced features that may not be essential to the standard. Disabling or avoiding nonmandatory tools can materially reduce exposure.

Retail and payment services

Retailers and financial services providers increasingly implement standardized technologies through pointofsale terminals, instore WiFi networks, and mobile payment applications. To minimize risk, consider SEPspecific representations and indemnities in contracts. Also consider document configuration and deployment choices to avoid optional or nonessential standard features. As with other implementers, tracing standardcompliant functionality and understanding licensing coverage across the supply chain are key to reducing unexpected SEP exposure.

Takeaways

SEP litigation is diversifying across industries, with SEP holders targeting filings wherever standards are embedded in everyday products and services. Cellular standards have experienced a steady decline in litigation while video codec standards have seen an increase, reflecting the growing importance of multimedia technologies. Wi-Fi SEP litigation continues to rise, indicating ongoing disputes in connectivity technologies. Whether launching a 5G handset, rolling out connected vehicles, scaling smart home devices, or operating a streaming platform, it is important to understand the litigation risk and trends in SEPs.

Notes about the dataset

Data was sourced from IPlytics and includes only SEPs asserted in U.S. district courts. The period analyzed was from 2020 to 2025 and includes the following standards: ETSI (2G, 3G, 4G, LTE, 5G), Wi-Fi (IEEE), Qi1 and Qi2, HEVC, AVC, AV1, VVC, and VP9. Note that in the rare instance a patent is essential to more than one standard (e.g., a patent declared to both cellular and Wi-Fi standards), it is counted as litigated for each category.