A patent dispute before the Unified Patent Court places a premium on preparation. Technical facts, infringement arguments, validity challenges and supporting evidence need to form a coherent case early in the proceedings. For companies, this creates a practical management question: how can the organisation give its advisers the information, decisions and time needed to build a convincing position before procedural deadlines restrict its options?

In the CEIPI IP Business Talk on 16 September 2026, Christof Augenstein from KATHER AUGENSTEIN discussed how that preparation works in practice. His central message connected procedural discipline with credibility. A thoroughly developed case gives a party a better chance of maintaining a consistent explanation throughout the dispute. Achieving that consistency requires early investigation, internal cooperation and enough time to test the arguments against possible objections.

A consistent case begins before the first submission

Augenstein described front-loading as a substantial investment in the case before filing. The initial statement of claim needs to explain the alleged infringement comprehensively, including how the relevant claim features are realised. The factual and technical foundation must already support the legal position being advanced.

This preparation has consequences beyond formal compliance. In his experience, consistency strengthens credibility. A party that has considered alternative explanations and anticipated counterarguments is better placed to maintain a convincing position as the proceedings develop. Unexpected prior art or a new technical argument can still change the assessment, but careful preparation reduces the risk of avoidable changes in direction.

For IP management, this means allocating resources while the case is being developed. The quality of the initial submission depends on what the company and its advisers have already investigated, discussed and challenged internally.

Defendants need time to think through their response

The position is particularly demanding for defendants. Augenstein highlighted how quickly the three-month period for the statement of defence can pass. Assessing infringement, searching for prior art and preparing a potential counterclaim for revocation all consume part of the available time.

Where a dispute is already visible through licensing negotiations or other exchanges, he recommended using that period to prepare a possible defence. Internal preparation can take place while negotiations continue. The company can investigate the patent, understand the technical issues and consider its response without taking an external step that escalates the dispute.

A strong submission also needs time for reflection. Lawyers and technical specialists have to examine their own reasoning, discuss possible counterarguments and give the client an opportunity to consider the implications. Additional working hours close to a deadline cannot fully replace this process. Earlier involvement of litigation counsel can therefore improve both the quality of the response and the range of options available.

Internal capacity becomes part of litigation strategy

Even large international companies can face unexpected patent actions. Augenstein observed that their established legal and IP departments often help them absorb the resulting demands. Experienced internal teams understand what external counsel needs and how to organise the response.

Smaller businesses may concentrate the same responsibilities in a managing director or a small number of technical leaders. Litigation can then consume a substantial share of the capacity required to run the company. Short deadlines intensify that pressure, particularly when the people who understand the technology also have to make the commercial decisions.

The organisational implication is direct. Companies need to make the relevant people available for substantive discussions. Access to documents alone will rarely resolve every question. Advisers also need explanations, feedback and decisions from those who understand how the technology works and what the dispute means for the business.

The written phase shapes the court’s understanding

Questions from the IP Expert Contributors brought the practical consequences of front-loading into focus. Augenstein stressed that parties should use the designated written submissions to present the material on which they intend to rely. Expectations formed in national proceedings can be misleading where practitioners are accustomed to further opportunities to supplement their case.

There is also a persuasive dimension. By the hearing, judges will already have studied the written material and formed an initial understanding of the dispute. Introducing an important point at that stage can make the task of persuasion more difficult, even apart from questions of admissibility.

This does not mean that genuinely new evidence should simply be withheld because it arrives late. Augenstein’s practical advice was to submit relevant additional material and explain why it could not have been provided earlier. Its admission remains a matter for the court. The management priority is to avoid creating that problem through preventable delays in collecting or communicating information.

Urgency requires a documented investigation

Preparing an application for provisional measures creates a particular tension. The applicant needs a sufficiently convincing case, while delay in completing the investigation can undermine its position on urgency.

Augenstein explained that investigation time can be relevant to the court’s assessment, but the applicant must be able to show what it was doing during that period. Continuous work to obtain evidence, clarify infringement and reach a decision gives the court a basis for understanding the elapsed time. Unexplained inactivity creates a different impression.

He described an internal aim of completing the relevant preparation within a month as a cautious working practice. This described how his team manages urgency risk; it does not establish a universal procedural deadline. The broader lesson is that companies should keep investigations moving and record the steps taken. Technical teams, decision-makers and external counsel all contribute to whether the applicant can act promptly on a properly investigated case.

Confidentiality needs to be planned alongside disclosure

Evidence can include information that a company has strong commercial reasons to protect. Manufacturing processes, technical details and licensing agreements may be important to the dispute while remaining sensitive outside it.

Augenstein distinguished confidentiality between the litigating parties from restrictions on third-party access to court files. He described UPC practice as receptive to justified confidentiality requests, including in ordinary infringement cases involving sensitive technical information.

At the same time, parties need to understand the limits of the available protection. He highlighted the requirement under the inter partes confidentiality framework for at least one natural person from each party to have access. Companies familiar with arrangements restricted to external lawyers should therefore examine carefully how access will work in their particular case.

The discussion also covered a phased approach used in a case before the Hague Local Division, initially restricting access to external advisers and experts. Augenstein treated that example with caution: the case settled, leaving the appellate position unresolved. A particular procedural arrangement should consequently be assessed in its own context before a company relies on it for future disclosure planning.

SEP disputes connect confidentiality with contractual obligations

Standard-essential patent disputes illustrate why these access arrangements matter. Licensing agreements may contain sales information, forecasts and other commercially sensitive terms. Their disclosure can also be restricted by contractual confidentiality obligations.

Augenstein explained how court-ordered production can provide a route for introducing such agreements into proceedings, where the relevant confidentiality arrangements permit disclosure under a court order. Protective measures then govern access within the case. This allows the court to consider relevant licensing material while addressing the parties’ confidentiality concerns.

A contributor question also raised the relationship between national developments and future UPC practice. Augenstein emphasised that the UPC already has experience with confidentiality in SEP proceedings and is developing its own approach. Companies therefore need to assess the procedural solution available before the UPC in the specific circumstances of the dispute.

Provisional measures require a convincing commercial explanation

For a patent owner, a preliminary injunction can have substantial effects across the territories covered by the order. That potential impact makes the strength of the application particularly important.

Augenstein identified the infringement and validity positions as central considerations. He also explained that a patent need not first have survived contested validity proceedings to be capable of supporting provisional relief before the UPC. The assessment still requires a convincing case on the patent concerned.

He placed particular emphasis on the balancing of interests. In his experience, the UPC examines closely why an applicant needs provisional intervention when proceedings on the merits already offer a comparatively rapid route to a decision. The company must explain what harm would arise from waiting and why earlier relief is justified in the circumstances.

This requires commercial input into litigation preparation. The applicant needs to help its advisers explain the consequences of continued market activity. The respondent needs to articulate the consequences of the requested restriction. The quality of these explanations depends on how well the legal team understands the underlying business situation.

Division choices belong within the wider campaign

The contributor discussion also addressed the use of different UPC divisions in a broader litigation campaign. Where several different patents are available for enforcement, Augenstein saw value in considering proceedings across more than one division, subject to the applicable jurisdictional and procedural requirements.

He distinguished this from attempting to litigate the same matter repeatedly in different venues. His point concerned separate patent actions and the strategic options they can create. An early successful injunction may influence negotiations across a wider dispute.

At the same time, he recognised the Court of Appeal’s role in bringing consistency to UPC practice. Division selection therefore needs to account for both the circumstances of the individual action and the developing coherence of the court as a whole.

Practitioners need to learn to think UPC

The final part of the discussion concerned the UPC’s emerging procedural culture. Augenstein considered the growing body of appellate decisions increasingly useful for understanding issues such as claim interpretation and late submissions. Familiar national approaches can inform an argument, but practitioners need to work with the UPC’s own rules and decisions.

He illustrated this through developments concerning inspections and the doctrine of equivalence. Even where familiar national judges sit on a panel, the applicable framework and developing case law can lead to approaches that differ from national practice. The composition of the bench alone does not establish how a procedural or substantive issue will be treated.

Practical experience helps advisers organise information around the UPC’s deadlines, written stages and expectations. Augenstein also made clear that this expertise is open to practitioners willing to learn the system. It develops through study, experience and working with colleagues who understand how UPC proceedings operate.

Litigation readiness is a continuing management responsibility

The talk showed how preparation links procedural effectiveness with the organisation of the company. A consistent case needs reliable technical explanations. Timely submissions need internal cooperation. Confidential evidence needs a workable access strategy. An application for urgent relief needs an active investigation and a persuasive account of the commercial consequences.

These requirements make litigation readiness part of everyday IP management. Companies can improve their position by involving advisers when a dispute becomes foreseeable, making technical and commercial expertise available, and allowing time to test the case before it reaches the court. That preparation helps turn procedural knowledge into a credible position that can be sustained throughout the proceedings.

Christof Augenstein

Christof Augenstein is a founding partner at KATHER AUGENSTEIN with more than 20 years of experience in technically complex, cross-border patent litigation. As outlined in the event announcement, he chairs AIPPI’s Standing Committee on the Unitary Patent and Unified Patent Court and is a co-editor and author of an international commentary on UPC procedure.

His contribution to the talk combined detailed procedural experience with the practical demands of preparing a case alongside the client. The discussion highlighted the importance of technical understanding, consistent argumentation and familiarity with the UPC’s developing practice.

KATHER AUGENSTEIN’s UPC positioning

The discussion illustrates KATHER AUGENSTEIN’s focus on the preparation and conduct of patent disputes. Augenstein connected the initial technical assessment with written submissions, confidentiality arrangements, provisional relief and the choices available within a wider litigation campaign.

For companies, this perspective makes the relationship with litigation counsel an important part of preparation. Advisers need access to the business’s technical knowledge and decision-makers early enough to develop and test the case. The resulting collaboration supports a litigation strategy grounded in the evidence, the commercial circumstances and the requirements of the UPC.