Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 1 of 27 PageID #: 16127
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`IMPOSSIBLE FOODS INC.,
`
`
`Plaintiff,
`
`
`
`
`
`C.A. No. 22-311 (CFC)
`
`
`
`
`)))))))))
`
`v.
`
`
`MOTIF FOODWORKS, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`DEFENDANT’S NOTICE OF FED. R. CIV. P. 30(b)(6) DEPOSITION
`OF PLAINTIFF IMPOSSIBLE FOODS INC.
`
`PLEASE TAKE NOTICE that pursuant to Rule 30(b)(6) of the Federal Rules of Civil
`
`Procedure, Defendant Motif FoodWorks, Inc. (“Motif”) will take the deposition upon oral
`
`examination of Plaintiff Impossible Foods Inc. (“Impossible”) on November 17, 2023, starting at
`
`9:00 a.m. (Pacific Time), or on a date and at a time to be mutually agreed upon in writing by
`
`counsel for the parties. The deposition will take place at the law offices of Quinn Emanuel
`
`Urquhart & Sullivan LLP, 865 S. Figueroa Street, Los Angeles, CA 90017 or at such other time
`
`and place as agreed upon by the parties.
`
`The deposition will proceed in accordance with the Federal Rules of Civil Procedure and
`
`the Local Rules for the District of Delaware, for the purpose of discovery, for use at trial and for
`
`such other purposes as are permitted by law. The deposition will be taken before a notary public
`
`or other officer authorized to administer oaths, who will swear-in the witness and administer the
`
`oath. The deposition will continue until completion with such adjournments as may be necessary.
`
`The deposition may be recorded by audio, videotape, stenographic means, and/or real time
`
`computer means.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`IMPOSSIBLE FOODS INC.,
`
`
`Plaintiff,
`
`
`
`
`
`C.A. No. 22-311 (CFC)
`
`
`
`
`)))))))))
`
`v.
`
`
`MOTIF FOODWORKS, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`DEFENDANT’S NOTICE OF FED. R. CIV. P. 30(b)(6) DEPOSITION
`OF PLAINTIFF IMPOSSIBLE FOODS INC.
`
`PLEASE TAKE NOTICE that pursuant to Rule 30(b)(6) of the Federal Rules of Civil
`
`Procedure, Defendant Motif FoodWorks, Inc. (“Motif”) will take the deposition upon oral
`
`examination of Plaintiff Impossible Foods Inc. (“Impossible”) on November 17, 2023, starting at
`
`9:00 a.m. (Pacific Time), or on a date and at a time to be mutually agreed upon in writing by
`
`counsel for the parties. The deposition will take place at the law offices of Quinn Emanuel
`
`Urquhart & Sullivan LLP, 865 S. Figueroa Street, Los Angeles, CA 90017 or at such other time
`
`and place as agreed upon by the parties.
`
`The deposition will proceed in accordance with the Federal Rules of Civil Procedure and
`
`the Local Rules for the District of Delaware, for the purpose of discovery, for use at trial and for
`
`such other purposes as are permitted by law. The deposition will be taken before a notary public
`
`or other officer authorized to administer oaths, who will swear-in the witness and administer the
`
`oath. The deposition will continue until completion with such adjournments as may be necessary.
`
`The deposition may be recorded by audio, videotape, stenographic means, and/or real time
`
`computer means.
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 2 of 27 PageID #: 16128
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`Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Impossible shall
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`designate one or more persons most knowledgeable or qualified to testify of its behalf regarding
`
`the topics set forth in Attachment A. Impossible shall inform counsel for Motif of such
`
`designation(s) at a reasonable time, and no less than seven days, prior to the deposition(s) by
`
`identifying the person(s) designed to testify with respect to each topic on behalf of Impossible.
`
`
`
`
`
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jeremy A. Tigan
`
`
`
`
`Jeremy A. Tigan (#5239)
`Lucinda C. Cucuzzella (#3491)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jtigan@morrisnichols.com
`ccucuzzella@morrisnichols.com
`
`Attorneys for Defendant Motif FoodWorks, Inc.
`
`
`
`
`
`
`OF COUNSEL:
`
`Joseph M. Paunovich
`Ryan Landes
`Sandra L. Haberny
`Sarah Cork
`Razmig Messerian
`Patrick T. Schmidt
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`865 South Figueroa Street
`10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Q. Wood
`Trevor J. Quist
`Derek Huish
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor,
`New York, NY 10010
`(212) 849-7000
`
`
`2
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 3 of 27 PageID #: 16129
`
`Sandy Shen
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`October 30, 2023
`
`
`
`
`
`3
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`
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 4 of 27 PageID #: 16130
`
`ATTACHMENT A
`
`DEFINITIONS
`
`The following terms shall have the meanings set forth below whenever used in any Topic.
`
`1.
`
`“Action” means the litigation captioned Impossible Foods Inc. v. Motif FoodWorks,
`
`Inc., Case No. 22-00311 (WCB), pending in the United States District Court for the District of
`
`Delaware.
`
`2.
`
`“Impossible” or “Plaintiff” means Impossible Foods Inc., and all parents,
`
`predecessors or successors, subsidiaries, divisions and/or affiliates, and all present and former
`
`officers, directors, employees, representatives and/or agents.
`
`3.
`
`“You” and “Your” mean Impossible, its agents, representatives, all persons acting
`
`on Impossible’s behalf, and any and all persons associated with, affiliated with, or controlled by
`
`Impossible.
`
`4.
`
`“Motif” means Motif FoodWorks, Inc., and all parents, predecessors or successors,
`
`subsidiaries, divisions and/or affiliates, an all present and former officers, directors, employees,
`
`representatives and/or agents.
`
`5.
`
`“Ginkgo” means Ginkgo Bioworks, Inc., and all parents, predecessors or
`
`successors, subsidiaries, divisions and/or affiliates, and all present and former officers, directors,
`
`employees, representatives and/or agents.
`
`6.
`
`7.
`
`8.
`
`9.
`
`“The ’096 patent” means United States Patent No. 9,943,096.
`
`“The ’306 patent” means United States Patent No. 10,039,306.
`
`“The ’250 patent” means United States Patent No. 11,013,250.
`
`“The ’241 patent” means United States Patent No. 11,224,241.
`
`10.
`
`“Asserted Foodstuff Patent(s)” means the ’096 patent, the ’306 patent, the ’250
`
`patent, and the ’241 patent.
`
`4
`
`
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 5 of 27 PageID #: 16131
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`11.
`
`“Asserted Claim(s)” means any claim of any Asserted Foodstuff Patent asserted by
`
`Impossible in this Action pursuant to the scheduling and case narrowing orders or any other
`
`applicable authority or agreement.
`
`12.
`
`“Heme Protein” means any heme-containing protein, regardless of source or
`
`genomic origin, and including without limitation soybean leghemoglobin (“LegH”).
`
`13.
`
`“Sugar(s)” means glucose, ribose, sucrose, fructose, xylose, lactose, arabinose,
`
`glucose-6-phosphate, maltose, galactose and/or maltodextrin, and/or combinations or mixtures or
`
`two or more thereof.
`
`14.
`
`“Sulfur Compound(s)” means methionine, cysteine, cystine, and/or thiamine,
`
`and/or combinations or mixtures or two or more thereof.
`
`15.
`
`“Meat Alternative” means a foodstuff that is not natural meat and is designed and/or
`
`intended to replicate natural meat or some property thereof.
`
`16.
`
`“Accused Foodstuff Technology” means products and processes accused by
`
`Impossible with respect to the Asserted Foodstuff Patents in its Identification of Asserted Patents
`
`and Accused Products dated January 2, 2023, to the extent Motif understands such identification,
`
`and the products and processes identified in Impossible’s Infringement Contentions.
`
`17.
`
`“Related Patent Rights” means each U.S. patent, U.S. patent application, and
`
`international patent application that claims priority to, or to which priority is claimed by, any
`
`Asserted Foodstuff Patent(s), including but not limited to all provisionals, continuations,
`
`continuations-in-part,
`
`divisionals,
`
`reissues,
`
`reexaminations,
`
`oppositions,
`
`revocations,
`
`interferences, and Patent Cooperation Treaty (PCT) applications.
`
`5
`
`
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 6 of 27 PageID #: 16132
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`18.
`
`“Named Inventors” means Patrick O’Reilly Brown, Rachel Fraser, Jessica Karr,
`
`Celeste Holz-Schietinger, Elysia Cohn, Marija Vrljic, Sergey Solomatin, Michael Eisen, and
`
`Ranjani Varadan as set forth on the Asserted Foodstuff Patents.
`
`19.
`
`“CoC Petitions” means the Requests for Certificates of Correction and/or Petitions
`
`to Accept Unintentionally Delayed Benefit Claims Under 37 C.F.R. §§ 1.78(c) and 1.78(e) filed
`
`with respect to the Asserted Patents and Related Patent Rights on or after March 20, 2023,
`
`including, but not limited to, those filed in the patents and patent applications on the dates
`
`identified below:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`U.S. Patent No. 9,943,096 on May 30, 2023;
`
`U.S. Patent No. 11,224,241 on May 30, 2023;
`
`U.S. Patent No. 10,039,306 on May 30, 2023;
`
`U.S. Patent No. 11,013,250 on May 30, 2023;
`
`U.S. Application No. 13/941,211 on April 28, 2023 and June 16, 2023;
`
`U.S. Application No. 14/797,006 on March 20, 2023, May 30, 2023, and August
`2, 2023
`
`U.S. Application No. 15/624,505 on March 24, 2023
`
`U.S. Application No. 15/624,513 on March 24, 2023 and May 31, 2023
`
`U.S. Application No. 15/839,994 on March 24, 2023
`
`U.S. Application No. 15/912,763 on March 24, 2023
`
`U.S. Application No. 15/913,018 on March 24, 2023 and July 10, 2023
`
`U.S. Application No. 17/081,908 on March 28, 2023
`
`U.S. Application No. 17/081,922 on March 28, 2023
`
`U.S. Application No. 15/786,776 on March 20, 2023 and June 1, 2023
`
`U.S. Application No. 16/238,769 on March 27, 2023 and June 2, 2023
`
`6
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 7 of 27 PageID #: 16133
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`
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`
`
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`
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`U.S. Application No. 17/081,938 on March 28, 2023
`
`U.S. Application No. 17/531,442 on March 28, 2023
`
`PCT/US2014/011347 on June 16, 2023 and August 7, 2023
`
`PCT/US2014/011361 on May 31, 2023
`
`20.
`
`“Prior Art” means all documents, information, or acts that qualify as prior art under
`
`any section or subsection of 35 U.S.C. §§ 102 and 103, including without limitation patents,
`
`printed publications, posters, PowerPoint presentations, and products.
`
`21.
`
`“Document(s)” shall have the broadest meaning possible under Rules 26 and 34 of
`
`the Federal Rules of Civil Procedure and the Local Rules of Civil Practice and Procedure of the
`
`United States District Court for the District of Delaware, and shall include, without limitation, all
`
`written or printed matter of any kind, electronically stored information and any and all other
`
`communications in recorded form.
`
`22.
`
`“Communication(s)” means the transmittal of information (in the form of facts,
`
`ideas, inquiries, or otherwise).
`
`23.
`
`The singular includes the plural and vice versa, except as the context may otherwise
`
`require; reference to any gender includes the other gender; the words “and” and “or” shall be
`
`construed as either conjunctive or disjunctive in such manner as will broaden as widely as possible
`
`the scope of any request for production; the word “all” means “any and all”; the word “any” means
`
`“any and all”; the word “including” means “including but not limited to.
`
`24.
`
`“Concerning” means regarding, referring to, describing, evidencing, corroborating,
`
`or constituting.
`
`
`
`
`
`7
`
`
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 8 of 27 PageID #: 16134
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`1.
`
`The research and development into the subject matter disclosed in each of the
`
`TOPICS
`
`Asserted Foodstuff Patents, including:
`
`a. the identity of each person who participated in such research and
`
`development;
`
`b. the facts and circumstances of such research and development, including
`
`where and when such research and development was performed, the cost of
`
`such research and development, and duration of such research and
`
`development; and
`
`2.
`
`All Documents Concerning such research and development, including the location
`
`and retention thereof.
`
`3.
`
`The timing and circumstances of the first disclosure by Impossible of the subject
`
`matter recited in each Asserted Claim of the Asserted Foodstuff Patents to any third party.
`
`4.
`
`An identification of all Impossible commercial products ever sold that contain a
`
`Heme Protein, a Sugar, and a Sulfur Compound, and the date and circumstances of Impossible’s
`
`first manufacture, use, and commercial sale of each such product.
`
`5.
`
`An identification of prototypes of foodstuffs developed by Impossible that contain
`
`a Heme Protein.
`
`6.
`
`The declarations offered in support of patentability of the Asserted Foodstuff
`
`Patents and all facts and circumstances regarding the experiments described or referenced therein,
`
`including:
`
`a. Declaration of Celeste Holtz-Schietinger Under 37 C.F.R. §1.132 dated
`
`Dec. 2, 2016;
`
`8
`
`
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 9 of 27 PageID #: 16135
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`b. Declaration of Keith R. Cadwallader Under 37 C.F.R. §1.132 dated Dec. 3,
`
`2016;
`
`c. Declaration of Devin Grant Peterson Under 37 C.F.R. §1.132 dated Dec. 2,
`
`2016;
`
`d. Declaration of S. Christopher Davis Under 37 C.F.R. §1.132 dated July 20,
`
`2017;
`
`e. Declaration of David J. Lipman Under 37 C.F.R. §1.132 dated July 11,
`
`2017;
`
`f. Declaration [first] of Celeste Holtz-Schietinger Under 37 C.F.R. §1.132
`
`dated Aug. 17, 2017; and
`
`g. Declaration [second] of Celeste Holtz-Schietinger Under 37 C.F.R. §1.132
`
`dated Aug. 17, 2017.
`
`7.
`
`The preparation and prosecution of the Asserted Foodstuff Patents and Related
`
`Patent Rights in the United States Patent and Trademark Office or any foreign patent office,
`
`including but not limited to the identity and role of all persons involved in said preparation and
`
`prosecution and the content and location of all documents related to said preparation and
`
`prosecution.
`
`8.
`
`The method or system employed to disclose Prior Art to the attorney(s) prosecuting
`
`the applications that led to the Asserted Foodstuff Patents, and/or the method or system employed
`
`to determine whether particular Prior Art was or was not material and/or any decision to disclose
`
`or not disclose such Prior Art to either the prosecuting attorney(s) or the United States Patent and
`
`Trademark Office.
`
`9
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 10 of 27 PageID #: 16136
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`9.
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`All facts and circumstances concerning any Prior Art investigation concerning the
`
`Asserted Foodstuff Patents or any Related Patent Rights, including any Prior Art investigation
`
`conducted before the filing of or during the prosecution of any of the applications that led to the
`
`Asserted Patents, including but not limited to Documents Concerning the same.
`
`10.
`
`All facts and circumstances Concerning the inventorship of each of the Asserted
`
`Foodstuff Patents or any Related Patent Rights, including any investigation or analysis undertaken
`
`concerning such inventorship and the selection of Named Inventors.
`
`11.
`
`All facts and circumstances Concerning the priority date of each of the Asserted
`
`Foodstuff Patents or any Related Patent Rights, including on a claim-by-claim basis for each
`
`individual Asserted Claim, including the identity of all inventors for each such Asserted Claim,
`
`and including but not limited to any efforts to correct priority claims for any Asserted Foodstuff
`
`Patents or any Related Patent Rights.
`
`12.
`
`All facts and circumstances Concerning the filing of the CoC Petitions, including:
`
`a. any investigation or assessment of the priority claims of the Asserted
`
`Foodstuff Patents during the pendency of the applications that issued as
`
`these patents, including the basis for the statement(s) that such patents are
`
`“related to” any application;
`
`b. Impossible’s first understanding or knowledge that any of the Asserted
`
`Patents or any Related Patent Rights had a purportedly incomplete or
`
`incorrect priority claim;
`
`c. the identity of any person(s) responsible for any such purported error;
`
`10
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 11 of 27 PageID #: 16137
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`d. Impossible’s policies and procedures for determining the accuracy of
`
`priority claims including statements concerning priority or relationships
`
`made in patent specifications and application data sheets (ADS);
`
`e. any investigation or assessment of the priority claims of the Asserted
`
`Foodstuff Patents that Impossible undertook prior to the submission of the
`
`CoC Petitions; and
`
`f.
`
`the basis for the corrections sought in Impossible’s CoC Petitions, including
`
`(i) all facts supporting Impossible’s claim(s) that any priority and/or benefit
`
`claims were inadvertently omitted; (ii) all facts supporting Impossible’s
`
`claim(s) that any delay(s) were unintentional; (iii) all facts supporting
`
`Impossible’s claim(s) that any of the Asserted Foodstuff Patents or Related
`
`Patent Rights purportedly requiring correction are a “continuation-in-part”
`
`of any application; (iv) all facts supporting Impossible’s claim(s) that
`
`PCT/US2014/011347 and PCT/US2014/011361 are “continuations” of
`
`U.S. Application No. 13/941,211; and (v) all facts that support Impossible’s
`
`position that a “mistake” of a “clerical” or “typographical” nature, or “of a
`
`minor character” was committed with respect to any of the foregoing.
`
`13.
`
`All facts and circumstances concerning Impossible’s representations to the U.S.
`
`Patent & Trademark Office that the Asserted Foodstuff Patents are entitled to the benefit of the
`
`priority date of PCT/US2012/046560 (“Brown”) including Impossible’s claims in its Patent Owner
`
`Preliminary Responses in IPR2023-00206 and -00207 that when the CoC Petitions for the ’096
`
`and ’241 patents are granted, Brown would fail to qualify as prior art.
`
`11
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 12 of 27 PageID #: 16138
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`14.
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`All facts and circumstances concerning any search, analysis, investigation, or
`
`opinion concerning the Asserted Foodstuff Patents or any Related Patent Rights, including but not
`
`limited to any search, analysis, investigation, or opinion concerning patentability, unpatentability,
`
`enforceability, unenforceability, validity, invalidity, infringement, non-infringement, meaning,
`
`interpretation, construction, or scope of the Asserted Foodstuff Patents or any Related Patent
`
`Rights.
`
`15.
`
`All facts and circumstances concerning any studies, analyses, or investigation
`
`regarding any of the Accused Foodstuff Technology performed by or on behalf of Impossible prior
`
`to the filing of the initial Complaint.
`
`16.
`
`All facts and circumstances concerning any challenges, whether formal or informal,
`
`to the validity or enforceability of the Asserted Foodstuff Patents or any Related Patent Rights,
`
`including but not limited to any Documents Concerning such challenges.
`
`17.
`
`All facts and circumstances Concerning any U.S. litigation, invalidity proceeding,
`
`conflict, or dispute involving the Asserted Patents or any Related Patent Rights, including but not
`
`limited to any Documents Concerning any such proceedings.
`
`18.
`
`Impossible’s knowledge Concerning novel aspects of the Asserted Claims of the
`
`Asserted Foodstuff Patents.
`
`19.
`
`Impossible’s knowledge Concerning whether and why the subject matter of the
`
`Asserted Claims of the Asserted Foodstuff Patents has been commercially successful or not and
`
`the criteria used by Impossible to assess commercial success.
`
`20.
`
`Impossible’s knowledge Concerning attempts by individuals or entities other than
`
`the Named Inventors to develop the subject matter of the Asserted Claims of the Asserted
`
`Foodstuff Patents, and whether such attempts were successful or not.
`
`12
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 13 of 27 PageID #: 16139
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`21.
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`Impossible’s knowledge Concerning any long-felt need for the subject matter of the
`
`Asserted Claims, and the extent any such need has been satisfied by the subject matter of the
`
`Asserted Claims of the Asserted Foodstuff Patents.
`
`22.
`
`Impossible’s knowledge Concerning any industry recognition or praise for the
`
`subject matter of the Asserted Claims of the Asserted Foodstuff Patents.
`
`23.
`
`Impossible’s knowledge Concerning any skepticism expressed concerning the
`
`subject matter of the Asserted Claims of the Asserted Foodstuff Patents.
`
`24.
`
`Impossible’s knowledge Concerning any attempts to copy the subject matter of the
`
`Asserted Claims of the Asserted Foodstuff Patents.
`
`25.
`
`The performance, advantages, disadvantages, problems, commercial or technical
`
`benefits, or alleged improvements of the subject matter claimed in the Asserted Foodstuff Patents,
`
`including but not limited to:
`
`a. Use of animal-sourced proteins or products compared to proteins or
`
`products not obtained from an animal source;
`
`b. Use of Heme Proteins in meat replica foodstuffs compared to meat replica
`
`foodstuffs that do not contain Heme Protein as an ingredient, including with
`
`respect to aromas or volatile compounds produced from cooking such
`
`foodstuffs;
`
`c. Use of soybean leghemoglobin compared to Heme Proteins of mammalian
`
`origin, e.g., bovine myoglobin;
`
`d. Use of Sugar(s) and Sulfur Compound(s), including with respect to aromas
`
`or volatile compounds produced from cooking such compounds;
`
`13
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`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 14 of 27 PageID #: 16140
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`e. Use of Sugar(s) and Sulfur Compound(s) in combination with any Heme
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`Proteins, including with respect to aromas or volatile compounds produced
`
`from cooking such compositions;
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`f. Use of Sugar(s) and Sulfur Compound(s) in combination with any Heme
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`Proteins in any meat replica foodstuff, including with respect to aromas or
`
`volatile compounds produced from cooking such foodstuffs.
`
`26.
`
`Impossible’s knowledge of Heme Proteins in foodstuffs, including without
`
`limitation:
`
`a. use of Heme Proteins in foodstuffs before the filing of the Asserted Patent
`
`applications or Related Patent Rights;
`
`b. purported advantages or disadvantages of using Heme Proteins in
`
`foodstuffs;
`
`c. use of Heme Proteins as colorants or pigments;
`
`d. use of Heme Proteins or iron as nutritional supplements; and
`
`e. relationship of Heme Proteins and foodstuff flavor.
`
`27.
`
`Impossible’s knowledge of Sugars and Sulfur Compounds in foodstuffs, including
`
`without limitation:
`
`a. the use of such compounds in foodstuffs before the filing of the Asserted
`
`Patent applications or Related Patent Rights;
`
`b. purported advantages or disadvantages of using Sugars and Sulfur
`
`Compounds in foodstuffs;
`
`c. production of volatile compounds from heating Sugars and Sulfur
`
`Compounds; and
`
`14
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 15 of 27 PageID #: 16141
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`d. production of aromas from heating Sugars and Sulfur Compounds.
`
`28.
`
`Impossible’s knowledge of the Maillard reaction with respect to foodstuffs,
`
`including the use of Maillard reaction precursors in foodstuffs before the filing of the Asserted
`
`Patent applications or Related Patent Rights.
`
`29.
`
`Impossible’s knowledge of methods of obtaining Heme Proteins from non-animal
`
`sources, including without limitation:
`
`a. methods of obtaining such proteins, including methods that were known in
`
`the art before the filing of the Asserted Patent applications or Related Patent
`
`Rights;
`
`b. any purported advantages of obtaining such proteins; and
`
`c. any purported disadvantages or technical challenges of obtaining such
`
`proteins.
`
`30.
`
`All studies, investigations, analyses, surveys, or other evidence concerning
`
`consumer preference for Heme-Containing Foodstuffs (including, e.g., meat replicas
`
`manufactured and sold by Impossible) compared to comparable food products that do not contain
`
`Heme Protein as an ingredient (including, e.g., meat replicas sold by competitors such as Beyond
`
`and Kellogg), and all bases for any conclusion or finding that consumers prefer foodstuffs that
`
`contain Heme Protein over comparable foodstuffs that do not contain Heme Protein or vice versa.
`
`31.
`
`Impossible’s competitors in the Meat Alternative market, including products
`
`covered by one or more Asserted Claims of the Asserted Foodstuff Patents.
`
`32.
`
`Your analysis of the competitive market for Meat Alternative products including
`
`the size of the market, the market participants and their relative market shares, the offerings of the
`
`market participants, pricing and other market factors.
`
`15
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 16 of 27 PageID #: 16142
`
`33.
`
`Differences in pricing and profitability by Impossible and in the Meat Alternative
`
`market, including based on features, brand, type (e.g., different types of meat replicas, such as
`
`beef, pork, and chicken replica products), and geographic territories.
`
`34.
`
`35.
`
`The features that differentiate products in the Meat Alternative market.
`
`Demand for Meat Alternatives and the claimed features of the Asserted Claims of
`
`the Asserted Foodstuff Patents, including but not limited to studies of the demand, customer
`
`feedback, surveys, and/or comments.
`
`36.
`
`Information regarding Impossible’s business and distribution model, including
`
`Impossible’s sales channels, territories, distributors, and customers.
`
`37.
`
`Any efforts by Impossible, or others working on behalf of Impossible, to research,
`
`develop, design, manufacture, or commercialize Heme-Containing Foodstuffs or any product or
`
`prototype containing Heme-Containing Foodstuffs, including the efforts made, the status and
`
`results of those efforts, the expenditures associated with any such efforts, and any decision to cease
`
`research, development or commercialization of any such product or prototype .
`
`38.
`
`Any efforts by Impossible, or others working on behalf of Impossible, to research,
`
`develop, design, manufacture, scale up, or commercialize any product, system, or method for the
`
`expression of Heme Protein for use in foodstuffs, including the efforts made, the status and results
`
`of those efforts, the expenditures associated with any such efforts, and any decision to cease
`
`research, development, or commercialization of any such product, system, or method.
`
`39.
`
`The ownership of the Asserted Foodstuff Patents and Related Patent Rights,
`
`including:
`
`16
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 17 of 27 PageID #: 16143
`
`a. any assignment of ownership rights to the Asserted Foodstuff Patents and
`
`Related Patent Rights and the chain of title for each of the Asserted
`
`Foodstuff Patents and Related Patent Rights; and
`
`b. the identity of each individual or entity to which the Asserted Foodstuff
`
`Patents and Related Patent Rights were assigned at any time.
`
`40.
`
`Any agreements between Impossible and any of the Named Inventors and
`
`Documents Concerning the same, including but not limited to consulting agreements and
`
`agreements reflecting the Named Inventors’ equity or stock ownership in Impossible.
`
`41.
`
`Any Communications between Impossible and any third party, including any
`
`Named Inventors, concerning the Asserted Foodstuff Patents or any Related Patent Rights, and
`
`any documents Concerning such communications.
`
`42.
`
`Any license agreements, covenants not to sue, assignments, or other transactions
`
`conveying any interest in the Asserted Foodstuff Patents or Related Patent Rights, the use of Heme
`
`Protein in foodstuffs, or any related technology, including any royalty payments, cross-licenses,
`
`or other compensation paid for or in connection with any such transactions. Impossible’s licensing
`
`activities, including negotiations, related to potential or actual licenses, sublicenses, or other
`
`agreements concerning the Asserted Foodstuff Patents, any Related Patent Rights, or any patent
`
`that is technologically comparable to the Asserted Patents, including efforts to sell, license,
`
`monetize, commercialize, or otherwise generate revenue from the Asserted Foodstuff Patents,
`
`Related Patent Rights, or any patent that is technologically comparable to the Asserted Foodstuff
`
`Patents, and including any proposed or executed collaboration, option, acquisition, sale, license,
`
`cross-license, transfer, assignment, covenant not to sue, settlement, or other grant of rights
`
`involving the Asserted Foodstuff Patents or any Related Patent.
`
`17
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 18 of 27 PageID #: 16144
`
`43.
`
`Impossible’s efforts to promote, market, or advertise any foodstuffs or products
`
`covered by any claim of any Asserted Foodstuff Patents and all expenditures by Impossible
`
`concerning such efforts.
`
`44.
`
`The features advertised and promoted for any foodstuffs or products covered by
`
`any claim of any Asserted Foodstuff Patents, including the features that Impossible believes are
`
`the most important or valuable to its products.
`
`45.
`
`Revenues, unit sales, profits, costs of goods sold, and offers to sell, financial
`
`projections, valuations, and estimates with respect to any Impossible Product covered by any claim
`
`of any Asserted Foodstuff Patents.
`
`46.
`
`The cost of alleged improvements of the subject matter claimed in the Asserted
`
`Foodstuff Patents, including the actual input costs into Impossible’s products, and alternative costs
`
`to achieve similar results.
`
`47.
`
`Impossible’s annual and quarterly financial statements, including profit & loss
`
`statements, balance sheets, and cash flow statements.
`
`48.
`
`Impossible’s required return on investments, internal discount rates, and weighted
`
`average cost of capital (WACC).
`
`49.
`
`Sale price, valuations, projections, and financial estimates with respect to any
`
`Impossible Product covered by any claim of any Asserted Foodstuff Patents as well as comparable
`
`products sold by competitors in the market for Meat Alternative foodstuffs.
`
`50.
`
`The negotiation and terms of any license, sublicense, cross-license, transfer, or
`
`other agreement concerning the Asserted Foodstuff Patents, any Related Patent Rights, or any
`
`patent that is technologically comparable to the Asserted Foodstuff Patents.
`
`18
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 19 of 27 PageID #: 16145
`
`51.
`
`Revenue received by Impossible under any license, sublicense, cross-license,
`
`transfer, or other agreement concerning the Asserted Foodstuff Patents, any Related Patent Rights,
`
`or any patent that is technologically comparable to the Asserted Foodstuff Patents.
`
`52.
`
`The negotiation and terms of any license, sublicense, cross-license, transfer, or
`
`other agreement concerning technology covered by any claim of any Asserted Foodstuff Patents,
`
`the use of Heme Protein in foodstuffs, or any related technology.
`
`53.
`
`Revenue received by Impossible under any license, sublicense, cross-license,
`
`transfer, or other agreement concerning technology covered by any claim of any Asserted
`
`Foodstuff Patents, the use of Heme Protein in foodstuffs, or any related technology.
`
`54.
`
`Royalties received by Impossible with respect to any licenses concerning the
`
`Asserted Foodstuff Patents.
`
`55.
`
`All financial projections and/or models prepared by Impossible or at Impossible’s
`
`request related to licensing of the Asserted Foodstuff Patents or Related Patents, including any
`
`projections and/or models related to projected royalties, revenue, unit sales, profit, and/or costs.
`
`56.
`
`All financial projections and/or models prepared by Impossible or at Impossible’s
`
`request related to products or services covered by the Asserted Foodstuff Patents or Related
`
`Patents, including projected royalties, revenue, unit sales, profit, and costs.
`
`57.
`
`Impossible’s formal or informal policies, procedures, practices, or guidelines for
`
`licensing, sublicensing, or assigning rights to patents.
`
`58.
`
`Any valuations, studies, analyses, or assessments conducted or prepared by
`
`Impossible or on its behalf concerning the value of the Asserted Foodstuff Patents, any Related
`
`Patent Rights, or any patent that is technologically comparable to the Asserted Foodstuff Patents,
`
`19
`
`
`
`Case 1:22-cv-00311-WCB Document 233 Filed 10/30/23 Page 20 of 27 PageID #: 16146
`
`including but not limited to any documents evidencing any such valuations, studies, or
`
`assessments.
`
`59.
`
`Any valuations, studies, analyses, or assessments conducted or prepared by
`
`Impossible or on its behalf concerning technology covered by any claim of any Asserted Foodstuff
`
`Patents, the use of Heme Protein in foodstuffs, or any related technology.
`
`60.
`
`Alternatives to the technology disclosed in the Asserted Foodstuff Patents or to the
`
`use of Heme Protein obtained from non-animal sources in foodstuffs or any related technology,
`
`including the commercial availability or unavailability of such alternatives, the technological
`
`feasibility of such alternatives, the cost of such alternatives, and the desirability or undesirability
`
`of such alternatives.
`
`61.
`
`Any substantial use of Heme Protein obtained from non-animal sources in
`
`foodstuffs or any related technology.
`
`62.
`
`Every attempt by Impossible or by any party acting on behalf of Impossible to
`
`enforce any patent in the Impossible patent portfolio, including the Asserted Foodstuff Patents or
`
`any Related Patent Rights, either in the United States or abroad, including any analysis, evaluation,
`
`or discussion concerning the assertion, potential assertion, or potential for assertion of any patent
`
`in the Impossible patent portfolio against any third party, and any settlement, whether executed or
`
`considered, concerning any adversarial proceeding in the United States or abroad involving any
`
`patent in the Impossible patent
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