Diana Szego Fassbender

Senior Associate

Washington, D.C.


Read full biography at www.orrick.com
Diana Szego Fassbender has significant experience in a broad array of intellectual property matters, including patent, copyright, and trademark actions.

Ms. Fassbender regularly represents international clients, including particularly businesses and organizations in Asia and Europe, on a range of IP matters. She works closely with clientss to develop innovative and cost-effective case strategy to favorably resolve litigation or achieve other legal objectives.

Ms. Fassbender has been involved in all phases of litigation, from inception through trial and appeal. She regularly litigates complex multi-defendant, multi-patent district court infringement actions and Section 337 Investigations in the International Trade Commission. Ms. Fassbender also is experienced in representing clients in trademark disputes, such as trademark infringement cases and domain name arbitrations under the Uniform Dispute Resolution Policy. She also provides advice on international trademark prosecution and branding strategy, and often works with emerging companies in the technology sector on trademark and branding issues. Additionally, Ms. Fassbender has experience in intellectual property issues surrounding the Internet, such as pursuing actions under the AntiCybersquatting Consumer Protection Act, and drafting terms of use and other similar agreements governing content for website operators.

Posts by: Diana Fassbender

And the Survey Says: Nothing?

Order Vacating ITC Invalidity and Infringement Determinations and Remanding for Further Proceedings, Converse, Inc. v. Int’l Trade Commission, (Fed. Cir.) (Oct. 30, 2018) (Judges Dyk, O’Malley, and Hughes)

We’ve previously discussed some of the challenges of obtaining quality consumer survey evidence in trademark litigation in past posts, such as here and here. The persuasiveness and wisdom of a consumer survey was once again called into question, this time by the Federal Circuit in its October 30 opinion in Converse’s long-running trademark litigation against Skechers, New Balance, and others. The appeals court identified a “series of errors” requiring remand, including that the International Trade Commission applied incorrect standards to both invalidity and infringement and erred in its secondary meaning analysis. READ MORE

Judicial Reprimand Serves as Cautionary Tale for Litigants Everywhere

Order Denying Motion to Establish Claim Construction Procedure and to Show Cause Re Sanctions, Seven Networks LLC v. Google LLC, E.D. Tex. (July 19, 2018) (District Judge Rodney Gilstrap)

On July 19, 2018, Eastern District of Texas Judge Rodney Gilstrap issued a scathing order in response to a motion by Google LLC to “establish” a procedure for resolving claim construction disputes. Problematically for Google, its motion came nearly two months after the Court issued an order on the procedure for claim construction, three weeks after claim construction briefing began, and only two days before Google filed its responsive claim construction brief. The Court emphasized repeatedly that Google’s motion “demonstrates a serious disregard for [the] Court’s Rules, Orders, and its authority to control its own docket.” The Court also noted that the plaintiff’s actions contributed to the problem and ordered both parties and their counsel to appear on August 7, 2018 to show cause why they should not be sanctioned. The Court’s order is a cautionary tale for litigants and counsel in all cases about the importance of strictly following a court’s rules and procedures, and a reminder that it is the court—not parties or counsel—that controls the case. READ MORE

Third-Party Litigation Financing: When Can a Defendant Follow the Dollar Signs?

Order Denying Discovery Regarding Litigation Financing, Space Data Corp. v Google LLC, N.D. Cal. (June 11, 2018) (Magistrate Judge Nathanael M. Cousins)

In recent years, third-party litigation financing has become increasingly common.  Funding by an outside investor in exchange for a stake in any recovery has raised questions about the ethics of this practice as well as about whether such information must be disclosed in the litigation.  With the exception of class actions, courts often have concluded that information about actual or potential litigation funding is immune from disclosure under the attorney work product doctrine or common interest privilege.

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ITC’s Amended Section 337 Rules Streamline Investigations

Orrick’s Jordan Coyle and Diana Szego Fassbender co-authored an article for Law360 on the U.S. International Trade Commission’s long-awaited final amendments to its Rules of Practice and Procedure pertaining to investigations under Section 337 of the Tariff Act. The amended rules are designed to reduce the costs and burdens associated with Section 337 investigations for parties, third parties and the commission. Jordan and Diana describe the most significant amendments to the rules, comment on the circumstances surrounding some of the amendments and offer practice tips.

Read the full article here.