The Unified Patent Court has created a litigation environment in which procedural preparation can determine strategic options very early. Cases are highly structured, important factual and technical arguments need to be developed from the outset, and procedural instruments concerning evidence, confidentiality and provisional measures can have immediate commercial consequences.

In the upcoming CEIPI IP Business Talk, Christof Augenstein from the law firm KATHER AUGENSTEIN will discuss how litigants can translate this procedural framework into an effective litigation strategy. The starting point is readiness before the dispute reaches the decisive procedural stage. Technical argumentation, evidence, confidentiality, timing and internal preparation need to be organised around the requirements of a front-loaded system.

Front-loading changes when litigation strategy begins

UPC proceedings require parties to develop substantial parts of their case at an early stage. For claimants, this means determining how infringement will be argued, which technical facts support the case, what evidence is already available and which remedies should be requested. For defendants, the same pressure applies to non-infringement arguments, validity challenges and the technical explanation of the accused product or process.

The consequence is that litigation strategy cannot begin only when the statement of claim arrives. Companies and their external counsels need to identify the technical and legal theory of the case early enough to ensure that relevant arguments and evidence can be introduced when required. Choices made during this preparation may determine which options remain available later in the proceedings. The first question of the talk therefore addresses how parties should develop their technical argumentation, evidence and procedural strategy before filing an action or responding to one.

Evidence strategy must be developed early

Patent disputes frequently involve information that is difficult for one party to access. A patent owner may have indications of patent infringement without knowing exactly how a competitor’s product, manufacturing process or software operates. Important information may be located inside production facilities or contained in documentation controlled by the potential defendant.

UPC procedure provides mechanisms that can help parties obtain or preserve evidence. The strategic challenge is determining when such measures are necessary and what information must be secured to support the infringement case. For defendants, preparation is equally important. Technical information may need to be produced quickly, while internal experts must be able to explain why the alleged infringement does not occur or why the patent may not be valid. Evidence therefore becomes part of case architecture from the beginning.

Confidentiality creates a second preparation problem

The information required to litigate a technically complex patent dispute may itself be commercially valuable. Product specifications, manufacturing parameters, software architecture, research results and other information may need to be introduced into the proceedings even though the company would normally restrict access to them. This creates a tension between effective litigation and protection of confidential information.

UPC confidentiality mechanisms can help manage that tension, but they also require preparation. Parties need to identify which information genuinely requires protection, who needs access to it and how restrictions affect the ability of lawyers, technical experts and internal decision-makers to work on the case.

The second question of the upcoming discussion therefore connects two issues that cannot easily be separated: How can litigants use evidence-preservation measures, inspections and confidentiality mechanisms effectively? The question is not merely which procedural instruments exist. It is how they can be integrated into a coherent evidence strategy.

Provisional measures make timing commercially important

Preliminary injunctions can create consequences long before a final decision on patent infringement and validity. For a patent owner, provisional measures can provide rapid leverage where continued market activity would substantially weaken the value of later enforcement. For a defendant, the same mechanism can create immediate exposure. A preliminary injunction may affect product launches, customer relationships, distribution or other commercial activities across several UPC states.

The decision to seek or resist provisional measures therefore depends on more than legal arguments. Claimants need to prepare infringement, validity, urgency and evidentiary positions capable of supporting early intervention. Defendants need to understand how quickly they can respond and which technical or validity arguments can realistically be developed within the available timeframe. The third discussion question will therefore examine what determines whether provisional measures will be granted and how both sides should prepare for such proceedings.

Litigation readiness extends beyond the legal team

Front-loaded litigation also creates an organisational challenge. The information required for a UPC case is often distributed across several functions inside a company. Engineers understand the relevant product. Patent specialists understand the patent portfolio. Marketing teams know how important the affected market is. Management may need to decide how much business risk the company is willing to accept. These functions may need to cooperate much faster once proceedings begin than they do during ordinary business.

Litigation readiness therefore includes knowing where the relevant technical information is located, who can explain it, which decision-makers need to be involved and how confidential information can be handled internally. This becomes particularly important where provisional measures are possible. A company that first begins identifying the relevant technical experts after urgent proceedings have started may already have lost valuable preparation time. The procedural speed of the UPC consequently turns internal coordination into part of litigation strategy.

Emerging UPC practice changes the rules

The UPC has a common procedural framework, but it is also developing its own litigation practice through decisions of the Court of First Instance and the Court of Appeal. Questions concerning evidence, confidentiality, amendments, provisional measures, procedural timing and admissibility increasingly receive more detailed interpretation through case law.

For litigants, this creates a moving strategic environment. Knowing the wording of the Rules of Procedure is necessary, but it is not sufficient. Parties also need to understand how the court is currently interpreting those rules and whether different divisions are developing particular approaches to specific procedural questions.

This makes continuous analysis of emerging UPC practice particularly important for case preparation.

A procedural option that appears available in theory may be treated more narrowly in practice. Conversely, new decisions may reveal instruments or arguments that become relevant to the next dispute.

National litigation assumptions cannot simply be transferred

The UPC brings together judges and practitioners with backgrounds in different national patent litigation traditions. That makes previous national experience extremely valuable, but it also creates a risk. A strategy that works well before a German court may not automatically work before the UPC. The same is true for assumptions developed through British or French litigation practice.

The UPC is creating its own procedural culture. Parties therefore need to distinguish between experience that remains useful and procedural expectations that must be reconsidered. The fourth question of the talk addresses precisely this issue: Which emerging practices are particularly important, and where should litigants avoid relying on assumptions derived from German, British or French proceedings? As UPC jurisprudence develops, understanding these differences will increasingly influence how cases are prepared and argued.

From procedural rules to litigation architecture

The upcoming discussion shows how strongly procedural structure influences substantive litigation strategy before the UPC. Front-loading determines when arguments need to be developed. Evidence-preservation measures determine whether important facts can be established. Confidentiality mechanisms determine how sensitive technical information can be used. Provisional measures connect procedural preparation directly with commercial consequences. These elements cannot be managed independently.

An effective UPC strategy increasingly requires companies and their advisers to build the technical case, evidence position, procedural plan and internal response structure together. The procedural framework therefore becomes a litigation architecture. Companies that understand that litigation architecture before the dispute becomes urgent are better positioned to use procedural options actively rather than simply react to them.

Christof Augenstein

Christof Augenstein is a founding partner at KATHER AUGENSTEIN and has more than 20 years of experience in technically complex, cross-border patent litigation. He is Chair of AIPPI’s Standing Committee on the Unitary Patent and Unified Patent Court and co-editor and author of a comprehensive international commentary on UPC procedure. His work particularly addresses how litigants can translate the UPC’s procedural framework into an effective litigation strategy, from preparing the initial case and securing evidence to obtaining provisional measures and enforcing a decision.

KATHER AUGENSTEIN’s UPC positioning

The upcoming discussion also illustrates how KATHER AUGENSTEIN approaches the UPC through its procedural litigation architecture. The firm’s publicly visible communication repeatedly connects individual procedural instruments with the preparation and conduct of an actual case. Front-loading, preservation of evidence, confidentiality, provisional measures and emerging UPC practice are treated as elements that influence how litigation needs to be structured from the beginning.

This perspective becomes increasingly relevant as the UPC matures. Companies no longer need only explanations of what the new court is or which procedural instruments exist. They need to understand how those instruments affect the preparation of the next dispute. KATHER AUGENSTEIN’s positioning therefore translates procedural knowledge into litigation readiness: understanding the UPC’s developing procedural architecture early enough to build the technical, evidentiary and strategic case around it.