[GuestPost] SEP licensing when the patent landscape changes

IPKat is pleased to host the following guest contribution from Katfriend Earl Nied (Veracity-IP-Consulting LLC), who takes on a question FRAND discussions tend to skip past: not who holds the standard-essential patents for a standard, but when. Using the AVC/H.264 entries reported to the VIA Licensing Alliance, Earl shows that most listed entries have already expired, and that the landscape a licensee faces depends a great deal on the period being licensed. Over to Earl:

"People often assume that the standard-essential patent (SEP) landscape for a given standard is fixed. It is not. This article uses data reported to the VIA Licensing Alliance’s AVC/H.264 patent pool to examine active and expired patent entries associated with a long-lived standard.

FRAND licensing discussions often begin by identifying the relevant SEP landscape. But that landscape depends on the period being licensed.

A changing landscape 

The SEP landscape surrounding a standard evolves over time. Patents may expire, change hands, be newly identified, or later be found invalid, unenforceable, or non-essential. A company that implemented the standard when it first issued may face a different landscape from one entering the market twenty years later.

The time frame of the licensing landscape is especially important for any long-lived standard. AVC/H.264 remains commercially significant and widely used, but the VIA materials indicate that many listed patent entries have expired or are nearing expiration. Any proportionality analysis for such a standard should account for the patent landscape during the period of use or infringement.

A snapshot from VIA's AVC materials

VIA Licensing Alliance has compiled information on many patent entries submitted to its AVC/H.264 patent pool. The VIA-listed entries are not the entire AVC/H.264 SEP universe, but they provide a substantial public dataset for examining how a patent landscape can change over time. This article does not assess VIA’s license terms, pricing, or pool structure. It uses VIA’s materials for a narrower purpose: to examine the expiration pattern in that dataset.

The VIA materials dated 1 May 2026 list 2,647 active patent entries and 6,500 expired/removed patent entries. About 72% of the entries in this dataset had expired by May 2026. These figures count listed patent entries; they do not measure validity, infringement, essentiality, enforceability, relative value, or patent-family distinctness.

Estimated listed patent entries remaining over time. 
Reconstructed from currently active entries and reported patent expiration dates. *

Differences between patent holders

The VIA materials show that expiration affects patent holders differently. Some listed portfolios remain substantial, while others now have far more expired than active entries. Panasonic and IP Bridge illustrate this point, as they had similar numbers of expired entries but very different numbers of active entries. As of 1 May 2026, Panasonic had 346 active and 1,359 expired patent entries, while IP Bridge had 32 active and 1,266 expired entries. The overall landscape changes over time, and so do the relative positions of individual patent holders. That matters when parties compare portfolio shares, licenses, or non-discrimination arguments across different periods.

Licensing periods matter

SEP negotiations often span multiple periods. A licensee may need to address past sales, current products, and future coverage. These periods are related but not the same.

Expired patents can still matter for past sales. A patent that has expired may have been in force when products were made or sold. If it was valid, infringed, and enforceable during that period, later expiration does not eliminate earlier exposure. For current and future sales, however, expired patents should not be treated as rights that remain in force.

This is not a call for simple patent counting. Patent strength, scope, validity, essentiality, geographic coverage, and actual use all matter. But proportionality also requires attention to time. An analysis that relies on a historical portfolio heavy with expired patents may overstate current exposure. An analysis that ignores patents active during past sales may understate past exposure.

Expiration does not excuse bad-faith delay

Complex SEP negotiations can take time, especially when portfolios, products, territories, and past sales must be assessed. But ordinary negotiation delay is different from bad-faith strategic delay. Later patent expiration does not erase earlier infringement or loss caused by bad-faith delay. Where that conduct causes loss, courts can address it through the remedies available under applicable law.

Conclusion

The practical takeaway is simple: define the licensing period before measuring the SEP landscape. A portfolio may look different at each of the following points: when products first shipped, when negotiations began, when a complaint was filed, and when a remedy is considered.

The choice of period matters for courts, regulators, policymakers, and negotiators. It can affect damages, proportionality, comparability, non-discrimination, and remedies. Greater transparency into which patents remain active, who holds them, and the territories they cover would help parties focus on value rather than on disputing a flawed landscape analysis.

AVC/H.264 illustrates the point. A standard can remain commercially significant even as the associated patent landscape evolves. In the VIA snapshot, most entries had expired, with much of that expiration concentrated in recent years.

Expiration is only one source of change. Patents may also be transferred, reassessed, or deemed not essential. SEP analysis should not treat the patent landscape as fixed. It should ask which rights matter for the products and the period at issue.

*Source: Author’s calculation from VIA AVC materials dated 1 May 2026. Entries reported only as removed were excluded because their removal dates were unclear. Assumes all included entries were present at the beginning of the period. 

Note: This article uses VIA Licensing Alliance's AVC Attachment 1 (1 February 2026), AVC Active Attachment 1 (1 February 2026), VIA's AVC/H.264 FAQ, and Essentiality Overview. The chart is the author's aggregation of VIA-reported entries and listed expiration dates."