The CEIPI IP Business Talk with Christof Augenstein from KATHER AUGENSTEIN explored how companies can prepare for patent👉 A legal right granting exclusive control over an invention for a limited time. disputes before the Unified Patent Court. The discussion connected the court’s front-loaded procedure with the practical demands of developing technical arguments, securing evidence, protecting confidential information and deciding when to seek provisional relief.
The UPC IP Expert Contributors, Konstantinos Tsakiliotis, Nada Herak and Emanuela Bianco, focused the conversation on decisions that become difficult in actual disputes. When is an evolving case sufficiently developed to support an urgent application? How completely should the case be presented during the written phase? What does a company gain or risk👉 The probability of adverse outcomes due to uncertainty in future events. by asserting different patents before different local divisions? How should confidentiality be managed when SEP licensing👉 Permission to use a right or asset granted by its owner. disputes bring different judicial approaches and expectations about negotiating conduct into play?
Their questions made the organisational dimension of UPC litigation👉 The formal process of resolving disputes through proceedings in court worldwide. visible. Companies need to coordinate investigation, internal decisions, disclosure and procedural choices while important facts may still be emerging.
Key message
UPC litigation readiness requires companies to build a credible case while actively managing time, evidence and access to sensitive information. The contributions of Konstantinos Tsakiliotis, Nada Herak and Emanuela Bianco showed how early preparation shapes the options available for enforcement, defence and negotiation.
Replay the IP Business Talk of Wednesday, 16 September 2026
Guest
- Christof Augenstein, founding partner at KATHER AUGENSTEIN
UPC IP Expert Contributors
- Konstantinos Tsakiliotis, attorney at law in IP litigation👉 Enforcing or defending intellectual property rights through court action at law. at PENFORCE and UPC representative
- Nada Herak, European Patent Attorney and UPC representative
- Emanuela Bianco, lawyer, litigator and UPC representative at Saglietti Bianco
Nada Herak made the written phase the benchmark for preparation
Nada Herak proposed a demanding preparation principle: should parties prepare as if the written phase were their only opportunity to present the case?
Her question captured the practical meaning of front-loading. Companies may know that UPC deadlines are short while still assuming that missing technical explanations, supporting evidence or alternative arguments can be added later. Her formulation challenges that assumption at the point where it affects preparation.
Augenstein agreed with the underlying approach. He described the UPC’s treatment of late submissions as stricter than the national German practice familiar to him. Parties should use the scheduled written exchanges to set out the material supporting their position and avoid holding back arguments they already consider useful.
He also identified a persuasive consequence. Judges arrive at the hearing having studied the written submissions and developed an understanding of the case. An argument introduced only at that stage may have to overcome an assessment that could have been influenced earlier. The preparation principle therefore concerns both procedural opportunity and the credibility of the party’s explanation.
Herak’s contribution translates this into a useful internal test. Can the written case already explain how the technology works, where the relevant claim features are found or absent, what evidence supports that explanation and how the principal counterarguments should be addressed? The answers depend on cooperation between the company and its advisers well before the filing deadline.
The principle remains a preparation standard. Oral proceedings and the possibility of later developments retain their procedural role. Its value is to encourage a sufficiently complete written presentation while the company still controls the time available to build it.
A convincing written case requires time for internal challenge
Herak’s question also connected directly with Augenstein’s emphasis on consistency. A thoroughly investigated position gives a party a stronger basis for maintaining its explanation throughout the dispute. Frequent changes in the factual or technical account can make that explanation harder to defend.
Consistency develops through testing. Technical experts need to explain the product or process. Lawyers need to examine the significance of those facts. The client needs time to consider alternative interpretations, commercial consequences and possible objections. A good submission benefits from successive rounds of questioning and reflection.
For potential defendants, the pressure is particularly visible. Augenstein referred to the three-month period for the statement of defence and the time consumed by prior-art searching and validity assessment. Where licensing discussions or other exchanges already indicate a possible dispute, internal preparation can begin while those discussions continue.
The management implication of Herak’s contribution is that litigation readiness needs protected working time. The employees with the most relevant knowledge often also carry substantial operational responsibilities. Making them available early can influence the completeness of the written case and the quality of the decisions that support it.
Konstantinos Tsakiliotis exposed the tension between investigation and urgency
Konstantinos Tsakiliotis raised the problem of an evolving case in preliminary injunction proceedings. An applicant needs to collect enough evidence to support the application, while the urgency clock is already running. His question asked how practitioners approach that dilemma and recognise when the available evidence is sufficient to act.
This is a difficult decision because investigation rarely produces certainty all at once. A company may identify a potentially infringing product before it fully understands its internal operation. Testing, technical analysis and discussions with specialists may strengthen the case, but each step takes time.
Augenstein addressed both evidence emerging during proceedings and the decision to initiate provisional proceedings. Where relevant additional evidence becomes available after filing, his practical recommendation was to submit it and explain why it could not have been provided earlier. Admission remains for the court to determine.
Before filing, he described the need to balance a convincing evidentiary position with the requirement to act promptly. His central operational point was continuous effort. An applicant should be able to explain what it did to investigate the suspected infringement👉 Unauthorized use or exploitation of IP rights. and obtain the necessary evidence during the period preceding the application.
He referred to completing the relevant work within a month as an internal working aim used to manage urgency risk. That description should be understood as his team’s cautious practice, with the circumstances of the individual case remaining decisive. It does not establish a general one-month deadline or safe harbour.
The investigation itself needs a credible record
Tsakiliotis’s question makes documentation part of the timing decision. The eventual evidence may establish a technical fact, while the investigation record explains why obtaining that evidence took the time it did.
For IP management👉 Strategic and operative handling of IP to maximize value., a practical implication is to keep track of the steps through which the case develops. Relevant records may include when a suspected infringement was identified, when technical testing was requested, when results became available, which questions required further work and when the responsible decision-makers reviewed the position. These are ways of implementing the broader lesson from the discussion.
The same issue affects resource allocation. An urgent application may depend on laboratory capacity, access to engineers, external analysis and management approval. Delays at those interfaces can affect the applicant’s ability to present both a well-supported case and a convincing explanation of its timing.
Tsakiliotis therefore brought an important decision into view: how much additional information is needed before the company can responsibly act, and how can that information be obtained without avoidable delay? The talk provided a method for approaching that judgment through active investigation, documentation and close coordination. It offered no universal evidentiary threshold for every application.
Konstantinos Tsakiliotis tested the strategy of using several divisions
His second contribution moved from the preparation of one application to the design of a litigation campaign. Tsakiliotis asked about asserting different patents against the same product before different UPC local divisions. He pointed to the possibility of different decisions on overlapping legal issues and asked whether the strategy is worthwhile or could backfire.
Augenstein first clarified the distinction between separate actions involving different patents and repeated litigation of the same matter. His response concerned the former situation. Where several suitable patents are available and the client is prepared to pursue a broader campaign, he saw value in considering different divisions within the applicable procedural framework.
One commercial reason is that an early injunction in one action can influence settlement discussions across the wider dispute. The strategy can also allow the characteristics of an individual patent action to be considered when choosing among available divisions.
At the same time, Augenstein pointed to the Court of Appeal’s role in harmonising the law. Differences encountered at first instance exist within a court system that is developing common approaches. Division selection therefore needs to account for both the immediate procedural setting and the possibility of appellate review.
Tsakiliotis’s concern about conflicting outcomes remains a useful management question. A campaign involving several actions requires resources and coordination. The company and its advisers need to understand which factual explanations are shared, where the patent-specific arguments differ and how developments in one action may affect the wider negotiation. These implications follow from the strategic problem he raised; they are considerations for assessing the campaign as a whole.
Emanuela Bianco connected confidentiality with negotiating conduct
Emanuela Bianco introduced the interaction between confidentiality, standard-essential patents and differing judicial approaches. Her comment referred to recent developments in the Düsseldorf and Hamburg local divisions and their relationship with the Munich District Court’s SEP guidelines. She then asked whether, ultimately, good faith remains central to the negotiation sequence commonly described as the Huawei dance.
Her question linked two aspects of SEP disputes that companies have to manage together. A party may need access to licensing information to assess the position advanced by the other side. At the same time, licensing agreements may contain sensitive commercial terms and be subject to confidentiality commitments. How the parties request, disclose and use that information can become part of the wider dispute about their conduct.
Augenstein’s answer concentrated on the UPC’s developing confidentiality practice. He expressed the view that the Munich guidelines were unlikely to have a major influence on that practice because the UPC already had experience with SEP cases and had established workable approaches to the disclosure of licensing agreements.
He described court-ordered production as a mechanism through which agreements can be introduced where contractual confidentiality provisions allow disclosure pursuant to a court order. Restrictions on access within the proceedings can then protect the sensitive material while allowing it to be considered in the case.
The discussion did not resolve Bianco’s broader question about good faith throughout the Huawei negotiation sequence, nor did it examine the individual decisions referenced in her comment in detail. Her contribution nevertheless placed the confidentiality discussion in its commercial and behavioural context: the parties must be able to explain both the information they provide and the way they participate in the licensing process.
Confidentiality planning determines how evidence can be used
Bianco’s intervention can also be read alongside Augenstein’s earlier explanation of access to confidential material. He distinguished protection between the parties from restrictions on public access to court files and described UPC practice as receptive to justified confidentiality requests.
He also highlighted limits that matter for disclosure planning, including the requirement under the inter partes confidentiality framework for at least one natural person from each party to receive access. Businesses familiar with arrangements limited to external advisers need to examine how the proposed protection will operate in the actual proceeding.
A phased arrangement in a Hague Local Division case illustrated the flexibility that can arise in practice. Augenstein explained that external advisers and experts initially received access, while also noting that the case settled and the appellate position remained unresolved. The example therefore provides insight into practical case management without establishing a general entitlement to the same arrangement.
The management relevance of Bianco’s question extends to the preparation of licensing material. Companies need to know which documents may become relevant, what confidentiality obligations apply, whose interests the restrictions protect and who can meaningfully review the material. That preparation can make it easier to respond to disclosure requests and to present a coherent account of the company’s conduct.
The contributors identified connected decisions in UPC litigation
The three UPC IP Expert Contributors approached the discussion from different points in the dispute, and their questions revealed how closely those points interact.
Nada Herak focused on the completeness of the written case. Konstantinos Tsakiliotis examined the timing of urgent applications and the strategic use of several local divisions. Emanuela Bianco connected the handling of sensitive information with SEP negotiations and the development of judicial practice.
These decisions depend on one another. A complete written case requires timely access to evidence. Evidence gathering consumes time that may matter for urgency. Sensitive evidence requires an appropriate disclosure arrangement. A campaign across several actions requires consistency in the shared technical and commercial account.
For companies, the resulting task is to establish a working relationship between IP, legal counsel, technical specialists and commercial decision-makers before the dispute becomes urgent. Each function supplies information the others need. Technical teams explain the facts, advisers assess procedural options, and management determines the resources and commercial objectives of the response.
The contributors’ questions made the value of that interaction concrete. They identified the points where procedural knowledge must be translated into a decision under time pressure, with incomplete information and consequences for the company’s ability to enforce, defend or negotiate.
Guest: Christof Augenstein
Christof Augenstein is a founding partner at KATHER AUGENSTEIN with extensive experience in technically complex patent litigation👉 Formal court action to enforce or defend patent rights in major disputes..
In this talk, he explained how early preparation, consistent argumentation and familiarity with the UPC’s developing practice influence the conduct of a case. His answers connected procedural requirements with the day-to-day collaboration needed between litigation counsel and the client.
UPC IP Expert Contributors
Konstantinos Tsakiliotis is an attorney at law working in IP litigation at PENFORCE and a UPC representative.
His contributions addressed two strategic decisions: when an evolving evidentiary position is sufficiently developed for an urgent application, and how separate patent actions before different local divisions may support or complicate a wider litigation campaign.
Nada Herak is a European Patent Attorney and UPC representative.
Her contribution proposed preparing as if the written phase were the only opportunity to present the case. This focused the discussion on complete technical explanations, timely evidence and the importance of using the written submissions to establish a convincing and consistent position.
Emanuela Bianco is a lawyer, litigator and UPC representative at Saglietti Bianco.
Her question connected confidentiality in SEP proceedings with differences in judicial approaches and the role of good faith in licensing negotiations. It brought the handling of sensitive agreements into the wider context of negotiating conduct and the UPC’s developing practice.
