The dispute over discovery materials between Marriott International and Whisl Telecom, one of the defendants in Marriott’s robocall trademark infringement lawsuit in U.S. District Court for Eastern Virginia in Alexandria, continues its escalating battle of words. A day after Marriott blasted Whisl’s “scattershot” motion to compel amid the more than 17,000 pages of documents Marriott said it has produced in discovery so far to Whisl’s 80 (see 2210270015), Whisl shot back in a reply (docket 1:21-cv-00610) to say that Marriott “admits it is withholding documents essential to this case -- documents about facts and circumstances that Marriott’s own disclosed witnesses will discuss at trial.” The documents that Marriott holds in its possession “are discoverable every day of the week, and no motion to compel should have been required to get them,” it said. The 17,000 pages Marriott has produced include “voluminous yet low-calorie documents, such as SEC filings Marriott’s damages expert may have glanced at to confirm that Marriott is in the hotel business,” said Whisl. “That Marriott’s crab cakes are bloated with breadcrumbs is not the issue; Marriott needs to produce the content that exists and is demonstrably relevant.” Marriott is suing to thwart robocallers from impersonating Marriott telemarketers.

Amazon Prime Video, plus “various generations and screen sizes” of Amazon Fire and Echo Show devices, continue to infringe five DivX patents on adaptive bitrate streaming and digital rights management, alleged Divx in a complaint Monday (docket 3:22-cv-00687) in U.S. District Court for Eastern Virginia in Alexandria. “Without discovery, DivX cannot exhaustively identify all Amazon devices” that infringe the asserted patents, it said. Amazon provides an app store and associated infrastructure “to enable streaming service providers to provide their Amazon device-specific streaming applications to end users, so that such end users can download, install, and use such streaming applications” using the Amazon accused products, it said. Amazon didn’t comment.

Marriott International opposes defendant Whisl Telecom’s Oct. 20 motion to compel discovery from the hospitality company in Marriott’s trademark infringement lawsuit aimed at thwarting robocallers from impersonating Marriott telemarketers, said its opposition Wednesday (docket 1:21-cv-00610) in U.S. District Court for Eastern Virginia in Alexandria. “With the exception of one disputed issue, Marriott has produced the documents that are the subject of Whisl’s scattershot motion to compel,” it said. Marriott has produced more than 17,000 pages of documents, “which stands in stark contrast to Whisl’s production of approximately 80 documents,” it said. Whisl’s motion “made no attempt to narrow the issues before the Court with its ‘throw everything against the wall and see what sticks’ approach,” it said. The motion made “blanket statements and unsupported accusations to color these proceedings and portraying a false narrative about Marriott and non-party witnesses who have information critical of Whisl’s activities,” it said. “Ultimately, Whisl’s motion cannot distract from the real issue, which is Whisl’s participation in the unlawful acts alleged” in Marriott’s complaint, it said.

U.S. Magistrate Judge John Anderson for Eastern Virginia in Alexandria denied a motion by the lawyer for Dynasty Marketing Group, a defendant in the Marriott International robocall case (see 2210070013), to appear remotely at a hearing planned for Friday on Marriott’s second motion to compel discovery. Dynasty’s deficient discovery responses remain unverified and uncured,” said Marriott Oct. 21 in a memorandum in support of its second motion to compel. “Considering the significant issues raised” in Marriott’s motion, said Anderson’s order Tuesday (docket 1:21-cv-00610), “the court does not believe that those issues can be adequately addressed in a remote hearing” from either the Fairfax or Powhatan County courthouse where Phillip Griffin, a sole practitioner representing Dynasty, said he has previous commitments. “If these issues cannot be resolved, counsel will need to appear in person to address them,” said Anderson. He’s prepared to postpone the hearing to Nov. 4 if Griffin can’t appear Friday, he said. Marriott is suing for trademark infringement to thwart robocallers impersonating Marriott personnel.

A hearing is set for Friday in U.S. District Court for Eastern Virginia in Alexandria on two Marriott International motions to compel discovery from two defendants in its Telephone Consumer Protection Act complaint alleging infringement of Marriott trademarks by robocalling Marriott impersonators (see 2210070013). Marriott counsel “has satisfied the requirements of conferring in good faith in an effort to resolve the dispute without court intervention,” said the company in its second motion to compel defendant Dynasty Marketing Group to “produce any responsive documents” to its discovery requests. A second defendant, Whisl Telecom, “has produced a mere 82 documents in response to Marriott’s discovery requests which stands in stark contrast to Marriott’s document productions, amounting to over 17,000 pages of documents,” said a separate motion to compel. Friday’s hearing will be held before U.S. Magistrate Judge John Anderson, said a text entry in docket 1:21-cv-00610.

The U.S. Court of Appeals for the Federal Circuit recently clarified the conditions that must be met for claims of a patent to be standard-essential in the context of LTE technologies in INVT SPE v. International Trade Commission, blogged the Foley & Lardner law firm Tuesday. The court found that claims of the patent at issue are not essential to the LTE standard itself because the patentee “has failed to show that the accused LTE-compliant devices have the capability required by the claims.” Plaintiff INVT alleged infringement of its patent (7,848,439) by certain personal electronic devices capable of wireless communication and pursued relief at the ITC. In its determination, the ITC found noninfringement by the accused devices “with claims directed to actual operation rather than capability,” it said. The ITC found that the accused devices “did not infringe the claims under a theory of the claims being standard essential to practicing the LTE standard,” it said. On INVT’s appeal, the Federal Circuit “upheld the ITC determination of noninfringement, finding that INVT still did not prove that the accused devices have the claimed capability,” it said. “This case provides several lessons in how to verify whether a patent is actually essential to the standard.”

The 9th Circuit U.S. Court of Appeals mediation program scheduled a Nov. 22 dial-in telephone assessment conference “to explore settlement potential” in the appeal of Los Angeles choreographer Kyle Hanagami, who alleges Epic Games stole his dance moves for its signature Fortnite games franchise. Epic copied Hanagami's “registered choreography,” and packaged and sold it as an "emote" in the Epic online store, said the dance artist's mediation questionnaire Oct. 4 (docket 22-55890). An emote allows a player to perform some movement, like Hanagami's choreography, using an avatar, said the questionnaire. A side-by-side video submitted as part of the record illustrates that the emote in question “includes movement that is precisely duplicated from the registered choreography,” it said. But U.S. District Judge Stephen Wilson disagreed in an Aug. 24 order granting Epic’s motion for dismissal. The two works side by side are “not substantially similar” because they do not share “any creative elements,” said Wilson’s opinion. Hanagami’s opening brief at the 9th Circuit is due Nov. 30. Epic’s answering brief is due a month later.

Music labels alleging Frontier Communications has turned a blind eye to copyright infringement by its internet subscribers (see 2108130033) asked the U.S. District Court in Manhattan to lift an 8-month-old stay on their complaint. In a docket 1:21-cv-05050 motion to lift the stay Monday, they said the stay was to allow for quicker resolution of related claims brought in Frontier's bankruptcy, but that isn't happening. Frontier counsel didn't comment.

The major Hollywood studios plus Netflix moved Monday for a default judgment in their Dec. 1 copyright infringement lawsuit against PrimeWire, seeking $20.7 million in “maximum statutory damages,” plus the recovery of $417,000 in attorneys’ fees. PrimeWire is “relentless” in its “commercial scale piracy,” said a motion (docket 2:21-cv-09317) in U.S. District Court for Central California in Los Angeles. PrimeWire “sought to avoid accountability,” it said. The court gave the PrimeWire defendants “every opportunity to appear and defend their conduct,” but they “deliberately refused to identify themselves or appear, instead hiding behind anonymous emails,” it said. PrimeWire forced the studios “to engage in third-party discovery regarding damages, only to encounter intermediaries and shell companies designed to hide the actual profits that the Defendants gained from their illegal conduct,” it said. The studios’ investigation found the PrimeWire defendants “have connections to money-laundering schemes and other infringing enterprises, further underscoring the willfulness and scale of their infringement.” Efforts to reach PrimeWire for comment were unsuccessful Tuesday.

Saying the actions of the people behind the Primewire video piracy site "will not stop unless sufficiently deterred," movie production companies suing it for copyright infringement asked the U.S. District Court in Los Angeles to enter a final default judgment award of $20.7 million in statutory damages plus nearly $418,000 in legal fees. In a motion for default judgment Monday (docket 2:21-cv-09317), the plaintiff studios said the defendants haven't appeared in the proceeding and no known counsel represents them. They said the defendants deliberately hid their identities and their profits.