Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 1 of 9 PageID #: 15133
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`IMPOSSIBLE FOODS INC.,
`)
`)
`Plaintiff,
`)
`)
`)
`)
`)
`)
`)
`
`v.
`MOTIF FOODWORKS, INC., and
`GINKGO BIOWORKS, INC.
`Defendants.
`
`C.A. No. 22-311 (WCB)
`
`AMENDED SCHEDULING ORDER
`
`On December 1, 2022, I entered a scheduling order in this case. Dkt. No. 37. Since that
`
`
`
`
`
`time, Ginkgo Bioworks, Inc., has been added to this action as a defendant. On July 24, 2023, I
`
`held a teleconference with the parties to discuss their proposals for modifying the schedule in light
`
`of the addition of Ginkgo to the case. During the conference, I ordered the claims against
`
`defendant Motif Foodworks, Inc., for infringement of the Food Product Patents1 to be severed
`
`from the claims against Motif and Ginkgo for infringement of the Yeast Patents.2 The deadlines
`
`set forth in the original scheduling order, Dkt. No. 37, will continue to apply to the Food Product
`
`Patents case. In addition, because of the severance of the two cases, I ordered that the case
`
`narrowing provisions set forth in an Oral Order of April 12, 2012, Dkt. No. 63, would be modified,
`
`by dividing the number of asserted claims and asserted invalidity references between the two cases.
`
`As to the Food Product Patents case, Impossible must reduce the number of asserted claims to no
`
`more than 22 by August 15, 2023. By September 1, 2023, Motif must reduce the number of
`
`asserted invalidity references to no more than 27. By October 1, 2023, Impossible must reduce
`
`
`1 The “Food Product Patents” are U.S. Patent Nos. 9,943,096; 10,039,306; 10,863,761;
`11,013,250; and 11,224,221.
`2 The “Yeast Patents” are U.S. Patent Nos. 10,273,492 and 10,689,656.
`1
`
`
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 2 of 9 PageID #: 15134
`
`the number of asserted claims to no more than 9. By November 1, 2023, Motif must reduce the
`
`number of asserted invalidity references to no more than 15. Either party may move to deviate
`
`from the above procedures upon a showing of good cause, including but not limited to subsequent
`
`events such as IPR institution decisions or the court’s claim construction order.
`
`The claim construction proceedings in the Food Product Patents case will not include
`
`construction of the asserted claims of the Yeast Patents, which will be governed by the procedures
`
`set forth in Paragraph 13 below.
`
`The following provisions will apply to only the Yeast Patents case:
`
`
`
`1. Rule 26(a)(1) Initial Disclosures. Unless otherwise agreed to by the parties, the parties
`
`shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) on August
`
`11, 2023.
`
`
`
`2. Disclosure of Asserted Patents and Accused Product(s). Unless otherwise agreed to by
`
`the parties, not later than August 18, 2023, plaintiff shall specifically identify the accused
`
`product(s) and the asserted patent(s) that defendant allegedly infringes, and produce the file history
`
`for each asserted patent, all documents evidencing ownership of the asserted patent rights by
`
`plaintiff, and all agreements, including licenses, transferring an interest in any asserted patent.
`
`3. Disclosure of Core Technical Documents. Unless otherwise agreed to by the parties,
`
`not later than September 22, 2023, defendant shall produce to plaintiff the core technical
`
`documents related to the accused product(s), including but not limited to operation manuals,
`
`product literature, schematics, and specifications.
`
`4. Infringement Contentions. Unless otherwise agreed to by the parties, not later than
`
`October 20, 2023, the plaintiff shall serve Initial Infringement Contentions on the defendant. Not
`
`
`
`2
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 3 of 9 PageID #: 15135
`
`later than March 8, 2024, the plaintiff shall serve Final Infringement Contentions on the defendant.
`
`The Infringement Contentions shall contain the following information:
`
`
`
`
`
`
`
`
`
`a. Each claim of each asserted patent that is allegedly infringed by the defendant;
`
`b. A chart identifying specifically where and how each limitation of each asserted
`
`claim is found within the accused product;
`
`
`
`
`
`c. For each limitation of each asserted claim, whether the limitation is alleged to
`
`be present literally or under the doctrine of equivalents in the accused product;
`
`
`
`
`
`d. For any patent that claims priority to an earlier application, the priority date to
`
`which each asserted claim is alleged to be entitled.
`
`
`
`5. Invalidity Contentions. Unless otherwise agreed to by the parties, not later than
`
`November 17, 2023, the defendant shall serve its Initial Invalidity Contentions on the plaintiff.
`
`Not later than April 19, 2024, the defendant shall serve its Final Invalidity Contentions on the
`
`plaintiff. The Invalidity Contentions shall contain the following information:
`
`
`
`
`
`a. The identity of each item of prior art that the defendant alleges anticipates each
`
`asserted claim or renders the claim obvious. Each prior art patent shall be identified by its number,
`
`country of origin, and date of issue. Each prior art publication shall be identified by its title, date
`
`of publication, and, where feasible, author and publisher. Any alleged sale or public use shall be
`
`identified by specifying the item offered for sale or publicly used or known, the date the offer or
`
`use took place or the information became known, and the identity of the person or entity that made
`
`the use or that made and received the offer, or the person or entity that made the information known
`
`or to whom it was made known.
`
`
`
`3
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 4 of 9 PageID #: 15136
`
`
`
`
`
`b. Whether each item of prior art anticipates each asserted claim or renders it
`
`obvious. If obviousness is alleged, an explanation of why the prior art renders the asserted claim
`
`obvious, including an identification of any combinations of prior art showing obviousness;
`
`
`
`
`
`c. A chart identifying specifically where and how in each alleged item of prior art
`
`each limitation of each asserted claim is found, including for each limitation that such party
`
`contends is governed by 35 U.S.C. § 112(f), the identity of the structure(s), act(s), or material(s)
`
`in each item of prior art that performs the claimed function; and
`
`
`
`
`
`d. Any grounds of invalidity based on 35 U.S.C. § 101, indefiniteness under 35
`
`U.S.C. § 112(b), or lack of enablement or insufficient written description under 35 U.S.C. § 112(a)
`
`of any of the asserted claims.
`
`6. Amendment of Contentions. Amendment of the Final Infringement Contentions or the
`
`Final Invalidity Contentions may be made only by order of the court upon a timely showing of
`
`good cause.
`
`
`
`7. Joinder of Other Parties and Amendment of Pleadings. All motions to join parties and
`
`to amend or supplement the pleadings shall be filed on or before December 1, 2023.
`
`
`
`
`
`8. Discovery.
`
`
`
`a. Discovery Cut Off. All fact discovery in this case shall be initiated so that it will
`
`be completed on or before June 7, 2024, or 60 days after the Markman order is entered, whichever
`
`is later.
`
`
`
`
`
`b. Document Production. Document production shall be substantially complete by
`
`February 2, 2024.
`
`
`
`4
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 5 of 9 PageID #: 15137
`
`
`
`
`
`
`
`
`
`c. Disclosure of Expert Testimony.
`
`
`
`i. Expert Reports. For the party that has the initial burden of proof on the
`
`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
`
`August 9, 2024. The opposing party’s responsive disclosure of expert testimony is due on or
`
`before September 20, 2024. No other expert reports will be permitted without either the consent
`
`of all parties or leave of the Court. Along with the submissions of the expert reports, the parties
`
`shall advise of the dates and times of their experts’ availability for deposition. Any expert
`
`depositions shall be taken no later than October 11, 2024, or 28 days after responsive expert
`
`reports are served.
`
`
`
`
`
`
`
`ii. Objections to Expert Testimony. To the extent any objection to expert
`
`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow
`
`Pharmaceutical, Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it
`
`shall be made by motion no later than the deadline for dispositive motions set forth herein, unless
`
`otherwise ordered by the Court.
`
`
`
`
`
`d. Discovery Matters and Disputes Relating to Protective Orders. Should counsel
`
`find they are unable to resolve a discovery matter or a dispute relating to a protective order, the
`
`parties involved in the discovery matter or protective order dispute shall contact the Court to
`
`schedule a hearing. The Court can be reached by email at brysonw@cafc.uscourts.gov. The Court
`
`will then direct the filing of letter briefs, to be followed by a telephonic hearing if the court
`
`considers the hearing necessary. Discovery-related disputes should not be addressed by motion.
`
`
`
`9. Application to the Court for a Protective Order. Should counsel find it necessary to
`
`apply to the Court for a protective order specifying terms and conditions for the disclosure of
`
`confidential information, counsel should confer and attempt to reach an agreement on a proposed
`
`
`
`5
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 6 of 9 PageID #: 15138
`
`form of order and submit it to the court within ten days from the date of this order. Should counsel
`
`be unable to reach agreement on a proposed form of order, counsel must follow the provisions of
`
`Paragraph 3(g) above.
`
`
`
`
`
`Any proposed protective order must include the following paragraph:
`
`Other Proceedings. By entering this order and limiting the disclosure of
`
`information in this case, the court does not intend to preclude another court from
`finding that information may be relevant and subject to disclosure in another case.
`Any person or party subject to this order who becomes subject to a motion to
`disclose another party’s information designated as confidential pursuant to this
`order shall promptly notify that party of the motion so that the party may have an
`opportunity to appear and be heard on whether that information should be disclosed.
`
`10. Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to the
`
`Clerk an original and one copy of the papers. A redacted version of any sealed document shall be
`
`filed electronically within seven days of the filing of the sealed document. Papers should not be
`
`filed under seal unless there is a specific and substantial reason that particular materials in those
`
`papers are confidential and need to be protected from disclosure.
`
`11. Courtesy Copies. Courtesy copies of motions or other documents filed ordinarily need
`
`not be provided to the court. However, the parties shall provide the court with a courtesy copy of
`
`all briefs relating to any dispositive motion or Daubert motion, along with a courtesy copy of any
`
`other document filed in support of any such brief (i.e., appendices, exhibits, declarations,
`
`affidavits, etc.) by mailing them to Judge Bryson’s chambers, 717 Madison Place, N.W., Suite
`
`910, Washington, D.C. 20439. This provision also applies to papers filed under seal.
`
`12. Deadlines. All documents required to be filed on a specified date (or within a specified
`
`number of days after a particular event) must be filed no later than 5 p.m. on the date specified.
`
`Any requests to extend a deadline must be filed at least three business days in advance of the
`
`deadline.
`
`
`
`6
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 7 of 9 PageID #: 15139
`
`13. Claim Construction. The parties will meet and confer to determine what, if any, issues
`
`of claim construction the court needs to address. On or before December 15, 2023, the parties
`
`will advise the court as to what claim construction issues the parties have identified, which are
`
`ones on which the parties agree on a construction, which claim construction issues are disputed,
`
`and what the parties proposed claim constructions are for each of the identified claim construction
`
`issues, disputed or undisputed.
`
`
`
`a. Claim Construction Briefing. On or before January 5, 2024, Ginkgo will file a
`
`brief of no more than 5000 words setting out its position on claim construction. On January 19,
`
`2024, Impossible and Motif will each file an answering brief of no more than 7500 words setting
`
`out its position on claim construction. On January 26, 2024, Ginkgo may file a reply brief of no
`
`more than 5000 words on claim construction. On February 2, 2024, Impossible and Motif may
`
`each file a sur-reply brief of no more than 2500 words on claim construction.
`
`
`
`b. Meet and Confer on Claim Construction. On or before February 9, 2024, the
`
`parties will meet and confer in an effort to narrow their disputes as to claim construction issues.
`
`On or before February 16, 2024, the parties will submit to the court a joint status report indicating
`
`what, if any, issues have been resolved or narrowed regarding claim construction.
`
`
`
`c. Hearing on Claim Construction. If, after considering the parties’ briefs and the
`
`status report, the court determines that a hearing on claim construction would be useful, the court
`
`will set such a hearing. At least 10 days in advance of the hearing, each party will advise the court
`
`and the opposing party if live testimony will be presented at the hearing. The court strongly
`
`discourages the use of PowerPoints and other demonstratives. If the parties wish to refer to
`
`exhibits or illustrations, those should be included in the materials submitted to the court with the
`
`claim construction briefs.
`
`
`
`7
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 8 of 9 PageID #: 15140
`
`14. Case Narrowing. By February 9, 2024, Impossible should reduce the number of
`
`asserted claims against Ginkgo and Motif in the Yeast Patent case to 14. By March 1, 2024,
`
`Ginkgo and Motif should reduce the number of asserted prior art references in the Yeast Patent
`
`case to 18. By April 5, 2024, Impossible should reduce the number of asserted claims against
`
`Ginkgo and Motif in the Yeast Patent case to 6. By May 17, 2024, Ginkgo and Motif should
`
`reduce the number of asserted prior art references in the Yeast Patent case to 10. Either party may
`
`move to deviate from the above procedures upon a showing of good cause, including but not
`
`limited to subsequent events such as IPR institution decisions or the court’s claim construction
`
`order.
`
`15. Case Dispositive Motions. All case dispositive motions, an opening brief, and
`
`affidavits, if any, in support of the motion shall be served and filed on or before November 1,
`
`2024. Unless otherwise ordered, each side will address all of their case dispositive and Daubert
`
`motions in an opening brief of no more than 7500 words. Each side may file a single responsive
`
`brief of no more than 7500 words. Responsive briefs shall be filed by December 6, 2024. The
`
`movant may then file a single reply brief of no more than 2500 words. Reply briefs shall be filed
`
`by December 20, 2024.
`
`16. Applications by Motion. Except as otherwise specified herein, any application to the
`
`court shall be by written motion. Any non-dispositive motion should contain the statement
`
`required by Local Rule 7.1.1. Any brief in support of a motion, as well as the associated response
`
`and reply briefs, should be double-spaced with 12-point Times New Roman font. All footnotes in
`
`such briefs should be double-spaced.
`
`17. Pretrial Conference. On a date to be determined, the court will hold a final pretrial
`
`conference with counsel. The parties shall file a joint proposed pretrial order in compliance with
`
`
`
`8
`
`

`

`Case 1:22-cv-00311-WCB Document 161 Filed 07/25/23 Page 9 of 9 PageID #: 15141
`
`Local Rule 16.3(c) no later than 5 p.m. on the third business day before the date of the final pretrial
`
`conference.
`
`18. Motions in Limine. Motions in limine shall not be separately filed. All in limine
`
`requests and responses thereto shall be set forth in the joint proposed pretrial order. The in limine
`
`request and any response shall contain the authorities relied upon; each in limine request may be
`
`supported by a maximum of three pages of argument and may be opposed by a maximum of three
`
`pages of argument. The party making the in limine request may file a reply of one page in support
`
`of its request.
`
`19. Trial. This case is scheduled for a 5 day jury trial beginning at 9:00 a.m. on June 23,
`
`2025, with each subsequent trial day beginning at 9:00 a.m. The trial will be timed, with each
`
`party being given no more than 11 hours to present its case (including openings and closings).
`
`IT IS SO ORDERED
`
`SIGNED this 25th day of July, 2023.
`
`_______________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
`
`9
`
`