Patent litigation can affect a company’s access to markets, its relationships with customers and the commercial value of its technology. The Unified Patent Court brings these consequences into sharper focus: enforcement across several countries can create substantial leverage, while a dispute can also expose the patent itself to a central validity challenge. For management, the decision concerns the business position at stake and the company’s ability to handle the proceedings.

In the CEIPI IP Business Talk on 21 October 2026, Dr. Tobias Wuttke, Partner at BARDEHLE PAGENBERG, joined Prof. Dr. Alexander J. Wurzer to discuss the UPC as part of corporate risk management. The conversation connected litigation preparation, counterattacks, prior art searches, portfolio decisions and cost exposure. A recurring theme was the need to bring legal strategy and operational readiness into the same management discussion.

Litigation requires active involvement from the company

Wuttke began with the relationship between a company and its external advisers. A UPC action requires sustained cooperation. The technical facts, the evidence supporting them and the commercial context depend on contributions from inside the business.

A claimant also needs to prepare for a change in its procedural position. Bringing an infringement action can lead to a counterclaim for revocation, requiring the company to defend the validity of the patent it has chosen to enforce.

This makes internal availability a strategic consideration. Technical specialists and decision-makers need to understand what the proceedings will require and when their contributions will be needed. Assigning the matter to external counsel leaves the company with continuing responsibilities for the quality and speed of its own input.

The commercial value at stake gives costs their context

Wurzer opened the discussion by asking how companies should assess the UPC’s enforcement opportunities alongside central revocation exposure and significant litigation costs.

Wuttke connected that assessment with the economic purpose of a patent. Excluding competitors from a commercially important market can have considerable value. The cost of proceedings therefore needs to be considered alongside the business outcome that enforcement could support.

He also described increasing complexity as a cost driver. Developing procedural practice, expanding case law and demanding arguments require substantial work. For management, the relevant question is whether the expected commercial benefit justifies that investment and the associated risks. The answer depends on the particular patent, product and competitive situation.

Preparation starts with testing the patent

For a company considering its first UPC action, Wuttke’s recommendation placed preparation at the centre. A granted patent should undergo a serious validity review before the business relies on it in litigation.

That involves looking again for prior art and testing the strength of the patent beyond the examination already conducted during prosecution. Such work can reveal weaknesses that change the enforcement decision or the way the case should be prepared.

The infringement case requires the same discipline. The company needs a clear account of how the relevant product or process falls within the asserted claims, supported by the necessary facts and evidence. Reviewing validity and infringement together helps establish whether the proposed action rests on a position the company can credibly maintain.

Frontloaded proceedings create an organisational deadline

The discussion repeatedly returned to the UPC’s frontloaded procedure. Wuttke stressed the importance of preparing the case thoroughly before filing, because later changes to arguments, evidence or the infringement case can face demanding admissibility requirements.

The timetable also matters when the patent comes under attack. Defending validity may require considering amended claims and checking whether those claims would still cover the allegedly infringing product. Legal and technical analysis must remain connected throughout that exercise.

For the company, preparation therefore includes reserving people’s time and establishing access to the information they will need. A procedural deadline becomes an organisational deadline: the business must be able to produce informed decisions and reliable technical input within the available window.

A counterattack can change the business calculation

Wuttke described litigation advice as a form of risk management. Before starting proceedings, a company should consider the responses available to its opponent, including actions extending beyond the patent initially asserted.

A defendant may have its own patents or other grounds for a separate action. The dispute can also affect wider commercial relationships. Those possibilities change the claimant’s exposure and may influence its willingness to continue or settle.

Wurzer connected this with the strategic interaction between the parties. Each decision can alter the other side’s options and incentives. Understanding that interaction requires looking beyond the immediate infringement argument and asking how the opponent could respond across the wider relationship.

Business alternatives need their own preparation

The consequences become particularly visible from the defendant’s perspective. Where infringement and validity arguments offer limited prospects, the company needs to understand which commercial alternatives remain available.

Wuttke discussed leaving the affected market, implementing a design-around and obtaining a licence. Each raises practical questions. A technical alternative needs time for development and implementation. Changes may also require coordination with distribution channels and communication with customers.

A licence depends on the circumstances and the willingness or applicable obligations of the patent holder. It cannot simply be assumed to provide an available exit. The discussion showed why these alternatives deserve attention early enough for the business to assess their feasibility before a court decision makes the situation urgent.

Prior art searching is a continuing analytical task

An audience question brought the discussion to the effort companies should devote to searches. Wuttke treated prior art work as a central part of building a case, particularly when defending against an infringement claim.

The search can develop as the team gains a better understanding of the patent, the accused technology and the interpretation of the claims. A different understanding of a technical feature may suggest a more focused search and reveal material that earlier work did not identify.

That creates a tension with a frontloaded procedure. A later discovery may be valuable, while introducing it can require an explanation of why it was not presented earlier. Wuttke also discussed combining AI-based search tools with specialist searching. The management implication was to allocate effort in proportion to the product and market exposure involved.

Portfolio choices and competitor monitoring belong together

The conversation extended from individual proceedings to portfolio management. Wuttke discussed territorial coverage and the different routes through which patents may be challenged, including UPC revocation proceedings and opposition before the European Patent Office.

He also encouraged attention to competitors’ filing behaviour. A change in a competitor’s use of unitary protection can warrant closer investigation, particularly when it differs from an established pattern. Such information can help a company decide where further analysis is needed.

Wurzer added the challenge of changing business models. A company moving into digital products or services may encounter unfamiliar competitors and patent portfolios. Its monitoring and freedom-to-operate work need to follow that commercial development. Wuttke’s emphasis on EPO opposition reinforced the value of considering available challenge routes before an enforcement dispute arises.

Court statistics support a reasoned choice of venue

The growing availability of UPC data prompted a discussion about its practical value. Wuttke described statistics as one input into a recommendation on where to bring proceedings. They can help make the reasoning behind a venue choice more transparent.

Their usefulness depends on the underlying sample. A division with very few decisions provides a limited basis for drawing conclusions. Larger bodies of cases may offer more meaningful information, while the circumstances of the individual dispute still require assessment.

For companies, the relevant task is to understand how experience and data support the recommendation. A headline success rate needs context before it can contribute to a decision about a particular patent, opponent and commercial objective.

Cost exposure needs attention from the beginning

Audience questions also addressed defence costs and litigation funding. Wuttke highlighted the importance of the value assigned to an action and its relevance to recoverable costs. Decisions taken early in the proceedings can affect the company’s later financial position.

He discussed the practical effort involved in disputes over cost recovery, including scrutiny of the work performed and the amounts claimed. Agreements between the parties may help reduce that additional uncertainty where appropriate.

Litigation funding introduced a further commercial dimension. A funder assesses the opportunity against its own return requirements. Companies considering funding therefore need to understand how the arrangement would affect the economics of pursuing the case and the outcome they hope to achieve.

UPC readiness connects legal strategy with business continuity

Across the talk, the management challenge concerned the company’s ability to preserve and use its commercial options. A strong legal position needs evidence, available people, timely decisions and a realistic understanding of the opponent’s responses.

The same preparation extends to the operational consequences of a dispute. Market access, technical alternatives, customer communication and financial exposure can become interdependent under a compressed timetable.

The conversation showed why UPC readiness belongs within an ongoing exchange between IP, management, technical teams and risk management. Bringing those perspectives together gives the company a stronger basis for deciding when to enforce, how to respond and which preparations will preserve its ability to act.

Tobias Wuttke

Dr. Tobias Wuttke is a Partner, Attorney-at-Law, Certified IP Lawyer and UPC Representative at BARDEHLE PAGENBERG in Munich. He specialises in national and cross-border patent litigation, drawing on experience in hundreds of infringement and validity proceedings.

His practice includes advising international companies, innovative SMEs and startups in telecommunications, medical technology, automotive and life sciences. He places the economic perspective of a dispute at the centre of his work, connecting patent litigation with risk management and the pursuit of commercially useful outcomes.

Explore the wider context in our Industry Focus on the Unitary Patent and the Unified Patent Court.