Case 1:22-cv-00311-WCB Document 207 Filed 09/15/23 Page 1 of 3 PageID #: 15870
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Plaintiff,
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`v.
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`IMPOSSIBLE FOODS INC.,
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`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
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`Defendants.
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`C.A. No. 22-311-WCB
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`JURY TRIAL DEMANDED
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`))))))))))
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`)
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`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew M. Moshos (#6685)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`amoshos@potteranderson.com
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`Counsel for Plaintiff Impossible Foods Inc.
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`IMPOSSIBLE FOODS INC.’S REPLY LETTER BRIEF
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`OF COUNSEL:
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`Wendy L. Devine
`Kristina Hanson
`Jessica Ramsey
`Susannah M. L. Gagnon
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
`
`Matthew R. Reed
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`(650) 493-9300
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`Lorelei P. Westin
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`(858) 350-2300
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`Dated: September 15, 2023
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`Case 1:22-cv-00311-WCB Document 207 Filed 09/15/23 Page 2 of 3 PageID #: 15871
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`Dear Judge Bryson:
`Good cause standard applies. Motif successfully requested narrowing deadlines with a good
`cause standard. Ex. 8 at 32:20-34:1. Thus, the Delaware Default Standard, the Pennypack factors,1
`and Motif’s case law (not applying a good cause standard),2 do not apply here. Motif’s request
`that the Court now apply those standards exemplifies Motif’s gamesmanship.
`The Claim Construction Order does not justify Motif’s new references. Motif was aware that
`“non-animal” could be interpreted to encompass recombinantly produced proteins identical to
`those found in animals3—and made validity arguments based on that claim scope prior to the
`Claim Construction Order. In its May 2023 Initial Invalidity Contentions, Motif cited art (Crane)
`allegedly disclosing “heme-containing proteins . . . produced with recombinant expression systems
`in yeast, bacteria, fungi, and other organisms” that allegedly met the “non-animal heme-containing
`protein” claim limitation. Ex. 9 at 355; see also, e.g., 358. In its Dec. 2022 IPR petitions, Motif
`cited that same art (Crane) and argued that it disclosed “recombinant hemoglobin and myoglobin
`[that] are the same as those heme-proteins found in animal muscle” (Ex. 10 at 53; see also, e.g.,
`id. at 52)—the exact point that Motif now contends it did not know was necessary until the August
`2023 Claim Construction Order.4 The Claim Construction Order is a flimsy, post hoc excuse that
`does not justify Motif’s failure to act diligently. Motif’s other excuses likewise fail. The timing
`of Impossible’s production of non-public documents is irrelevant to Motif’s disclosure of prior art-
`based validity contentions. Impossible’s identification of good cause to amend claims—in a
`motion that Motif opposed, contending that it did not demonstrate good cause—is inapposite.
`Impossible served contentions for the claims at issue in that motion, narrowed them, then sought
`to re-assert them. The facts are not analogous.
`Motif’s gamesmanship. On Sept. 1, Motif improperly added 12 references (not 4). On Sept. 13
`at 4:48pm (simultaneous with filing of Impossible’s brief), Motif served 30 “exemplary” invalidity
`charts (relating to several, but not all, new references). On Sept. 14 at 3:30pm (the day after
`Impossible filed its brief), Motif withdrew 8 of the 12 references. D.I. 204-2 at 1; Ex. 13 at 1. The
`Sept. 13 charts further confuse Motif’s contentions because they cite the Perret reference, which,
`according to Motif’s Sept. 14 disclosure, is not one of Motif’s invalidity references. D.I. 204-2 at
`1; see e.g., Ex. 14. Motif’s argument that it could assert any reference so long as the total were
`less than 27 renders the deadline meaningless. That is not the narrowing deadline that Motif
`requested and the Court ordered. Ex. 15 at 24:4-25:5.
`Prejudice. Motif seeks to add contentions and references it did not disclose until its second
`narrowing deadline. Significant events have occurred in view of the invalidity contentions Motif
`served over four months ago, including claim construction and narrowing asserted claims. Motif’s
`claim that Impossible should identify positions it would have taken had it known about Motif’s
`1,010-page “exemplary” contentions served 48 hours before this brief is due is without merit.
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`1 Even if Pennypack applied the result would be the same because of at least Motif’s gamesmanship
`and the prejudice to Impossible.
`2 D.I. 204 at 3 (citing In re ChanBond, LLC (no good cause requirement and new invalidity theory
`rebutted new validity argument) and Sun Pharm. (Delaware Default Standard)).
`3 Motif was on notice of this interpretation of “animal-free” by October-November 2022 in
`connection with the briefing and order on Motif’s Motion to Dismiss. D.I. 26, 31.
`4 Two of Motif’s four new references are not even relevant to its argument because they relate to
`protein from animal sources. Ex. 11 (Ofari, bovine, porcine blood); Ex. 12 (Kato, egg white).
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`Case 1:22-cv-00311-WCB Document 207 Filed 09/15/23 Page 3 of 3 PageID #: 15872
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`Respectfully,
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`/s/ Bindu A. Palapura
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`Bindu A. Palapura (#5370)
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`BAP/mas/11059747/20200.00002
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`cc:
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`Clerk of Court (via Hand Delivery)
`All Counsel of Record (via CM/ECF)
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`-2-
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