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SEPs and FRAND in Canada: Current Policies, Court Actions, and Emerging Trends
- Gaurav Khandelwal
- 43 minutes ago
- 4 min read
Introduction
SEPs play a critical role in shaping technology standards around the world, and Canada offers a distinctive legal environment for them. In this blog, we examine how Canadian law treats SEPs, review recent court actions and policy signals, and highlight emerging trends — particularly for companies conducting a patentability search or evaluating SEP risks.
Understanding SEPs and FRAND Licensing
A Standard Essential Patent (SEP) covers technology that is indispensable to a standard. In other words, without using the invention protected by that patent, one cannot comply with the standard. Because standards enable devices and systems from different makers to interoperate — for example in telecom, IoT, or connectivity — SEPs often become foundational for entire industries.
Owners of SEPs typically commit to license them under Fair, Reasonable, and Non-Discriminatory (FRAND) terms. This commitment balances the patentee’s right to compensation with the industry’s need for broad access and interoperability.
How Canadian Law Treats SEPs
Under the Patent Act, Canada does not formally distinguish SEPs from other patents. The law offers no separate statutory regime or definition for SEPs beyond binding any licensing commitment made under FRAND to the patentee and any subsequent owner.
As a result, SEP litigation in Canada proceeds like ordinary patent litigation: proving infringement triggers the same remedies available under the Patent Act — including damages, royalties, and potentially injunctions.
Recent Court Actions and Policy Signals in Canada
1)Litigation Landscape and Key Court Behavior
To date, Canadian courts have not yet issued a binding decision that definitively defines what constitutes an SEP or what precisely qualifies as a FRAND-compliant license. Many disputes settle before reaching full trial. For instance, in a case involving SEP enforcement under the Patent Act, the court noted that it lacks jurisdiction to designate a patent as an SEP on its own.
That suggests Canadian courts currently treat “essentiality” and “FRAND obligation” as factual matters rather than legal labels. Meanwhile, ordinary patent validity or infringement cases continue — reinforcing that SEP holders in Canada must still navigate the general patent litigation framework if they wish to enforce their rights.
2)Intersection with Patentability Search and Standard Compliance
For entities performing a patentability search, SEP-related risk assessments now warrant extra attention. Even if a patent has been declared essential by a standards body, Canadian law offers no guarantee that courts will treat it differently from standard patents.
Therefore, implementers should verify essentiality carefully and consider validity, claim scope, and compliance with licensing commitments. Ignoring these steps may expose companies to infringement claims or costly licensing demands.
Emerging Trends & What to Watch
1)Growing Interest but Legal Uncertainty
Globally, SEP-related disputes continue to rise — across telecom, IoT, consumer electronics, and more. Canadian companies and licensors increasingly monitor global FRAND litigation outcomes, but domestic jurisprudence remains limited.
Because Canadian courts have historically lacked clear SEP-specific statutes, many legal questions remain open: What royalty rate qualifies as “reasonable”? When is an injunction appropriate? And how much deference should courts give to global licensing practices?
2)Strategic Importance of Patentability Search & Due Diligence
Given this ambiguity, parties — whether standard-setters, implementers or licensors — should conduct thorough patentability searches, scrutinize SEP declarations, and negotiate FRAND licenses carefully. Doing so helps avoid infringement risks and ensures transparent compliance.
Moreover, as the global market increasingly integrates — with overlapping standards spanning regions — companies operating in Canada might need to align their SEP strategies with international best practices, while being mindful of local uncertainties.
Frequently Asked Questions (FAQ)
Q1: Does Canada have a special law for SEPs?
No. Canadian legislation does not carve out a separate SEP regime. Under the Patent Act, SEPs are treated like any other patent — though licensing commitments (like FRAND) remain binding.
Q2: Can courts grant automatic injunctions for SEP infringement?
Yes — but only if a court finds valid infringement and finds it appropriate. There is no automatic grant simply because a patent is declared essential.
Q3: Should companies run a patentability search even if a patent is declared as SEP?
Absolutely. A SEP declaration alone does not guarantee validity or suitability. A patentability search helps confirm novelty, inventive step (non-obviousness), and claim scope — all essential for licensing or defense.
Q4: How can implementers ensure FRAND compliance in Canada?
Implementers should request clear, written licensing offers that meet fair, reasonable, and non-discriminatory standards. They must also verify the essentiality and validity of declared patents before committing.
Conclusion & Call to Action
As SEPs gain prominence in innovation-intensive sectors, companies operating in or entering Canada must stay alert. The interplay of SEPs, FRAND commitments, and general patent law makes due diligence — including patentability search and licensing verification — more critical than ever.
If you’re evaluating SEP risks, seeking guidance on licensing under FRAND, or performing a comprehensive patentability analysis, explore further details via this update from industry observers — and don’t hesitate to reach out for expert help. Contact us for detailed consultation.
