Case 1:22-cv-00311-WCB Document 292 Filed 12/05/23 Page 1 of 5 PageID #: 18053
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 22-311 (WCB)
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`REDACTED - PUBLIC VERSION
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`v.
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`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
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`Defendants.
`
`OPENING LETTER TO THE HONORABLE WILLIAM C. BRYSON
`FROM JEREMY A. TIGAN REGARDING MOTION TO COMPEL DISCOVERY
`
`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
`
`November 16, 2023
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`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
`
`Sandy Shen
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor,
`New York, NY 10010
`(212) 849-7000
`
`Attorneys for Defendant Motif FoodWorks, Inc.
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`

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`Case 1:22-cv-00311-WCB Document 292 Filed 12/05/23 Page 2 of 5 PageID #: 18054
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`Impossible’s refusal to supplement responses to Motif’s interrogatories is the latest in a
`string of improper and prejudicial attempts by Impossible to slow-roll discovery in this case that
`is prejudicing Motif’s ability to take and defend depositions before the fact discovery deadline.
`Impossible provided initial responses to Motif’s February 13, 2023 First Set of Interrogatories (Ex.
`A) on April 14 (later corrected on April 20). Ex. B. These barebone responses failed to
`substantively answer the majority of Motif’s interrogatories and liberally invoked Rule 33(d), often
`without identifying any documents at all. Motif raised these and other specific deficiencies in
`correspondence culminating in a letter on September 29, 2023 (Ex. C), and the parties agreed to
`mutually supplement by October 30, 2023. Impossible, however, failed to live up to its agreement.
`The responses Impossible supplemented (Ex. D) ignore many of the deficiencies highlighted by
`Motif. And for several others, Impossible simply refused to supplement at all. Motif reiterated
`these continuing deficiencies in letter correspondence (Ex. E, dated November 7), and a November
`13 meet and confer. Because Impossible still refuses to further supplement many of its responses,
`or to provide a date certain to supplement others, Motif has no choice but to seek Court relief.
`
`Motif’s requests are relevant and proportional, and Impossible’s failure to fully answer
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`greatly prejudices Motif’s ability to prepare for and take upcoming depositions. Accordingly,
`Motif respectfully asks the Court to compel Impossible to supplement its responses to Motif’s
`Interrogatory Nos. 2, 3, 4, 6, 8, 9, 12 and 14 by a date certain. See Fed. R. Civ. P. 26(b)(1); 37(a)(1).
`
`I.
`
`Interrogatory Nos. 2 and 3
`
`Interrogatory No. 3 asks Impossible to, inter alia, [s]tate the date to which each asserted
`claim of each of the Patents-in-Suit is entitled to priority, along with all facts supporting each such
`claim, including, without limitation, the page, column, paragraph, and/or line numbers in any
`patent or patent application, domestic or foreign, where the subject matter claimed in each asserted
`claim of each Patent-in-Suit is described.” Ex. A at 8-9. In response, Impossible identified two
`different priority dates without clearly committing to either. Ex. D at 9-10. Impossible responded
`with the unexplained qualification that these priority dates are “for purposes solely related to this
`litigation.” Id. Moreover, Impossible has not identified any specific facts that support its claims to
`either priority date. See id.; Ex. E at 4. Although Impossible has offered to supplement these
`interrogatories by November 20, 2023 (Ex. F at 4), it made clear it would not commit to identifying
`a single priority date during the parties’ November 13 meet and confer. Impossible’s equivocal,
`shifting-sands approach to priority dates is improper and prejudicial. Impossible must identify a
`single, unqualified priority date for each asserted patent with corresponding factual support.
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`Priority dates are threshold issues to Motif’s invalidity defenses—they delineate what is
`and is not prior art. Indeed, here, Impossible’s asserted priority dates directly affect the prior art
`status of certain references Motif contends are invalidating, which places the burden squarely on
`Impossible to identify any entitlement to a pre-filing priority date for its asserted claims.1 Ex. E at
`4 (quoting Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1379 (Fed. Cir.
`2015)). Motif’s requests for this information are neither disproportionate nor unduly burdensome
`because, as Impossible represented to the Patent Office, Impossible recently engaged in a priority
`analysis for these patents. E.g., D.I. 187 at 1. Motif should not be forced to remain in limbo as to
`
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`1 Impossible’s equivocation on priority date also leaves unanswered whether the affected patents
`are governed by pre-AIA or AIA law. See Pub. L. No. 112-29, 125 Stat. 284 § 3(n)(1) (2011)
`(providing that AIA prior art provisions shall apply to any application for patent containing a claim
`with an effective filing dafter March 15, 2013). This further compounds the prejudice to Motif.
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`1
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`Case 1:22-cv-00311-WCB Document 292 Filed 12/05/23 Page 3 of 5 PageID #: 18055
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`which priority date Impossible will assert or Impossible’s theories as to why the patents-in-suit are
`entitled to that priority date. Impossible should be compelled to produce an unequivocal response.
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`Impossible’s refusal to take a definitive position on priority dates also infects its response
`to Interrogatory No. 2, in which Motif asked Impossible to, inter alia, “describe in detail all pre-
`filing public disclosures of the subject matter of [the asserted claims],” including “where, when,
`how, and by whom” such disclosures were made. Ex. A at 8. According to Impossible, there was
`no public use or disclosure of the claimed subject matter prior to the respective priority date(s),
`but it states that the “Impossible burger”—an undefined product—was first disclosed “in 2014.”
`Ex. D at 6. Without Impossible’s information regarding the circumstances of the “Impossible
`burger’s” first disclosure—including how the “burger” relates to the claimed subject matter—
`Motif cannot fully evaluate Impossible’s claim that there were no publicly disclosed embodiments
`of the patents-in-suit before their priority date(s). Motif is entitled to this information.
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`II.
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`Interrogatory No. 12
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`Interrogatory No. 12 asks Impossible to, inter alia, “[d]escribe all Communications You
`have had with Vendors or licensees (or prospective Vendors or licensees) of Impossible’s
`Products, both past and present, regarding Motif, the Accused Product(s) or Accused Process(es)
`or potential products or processes, this Action, or Your intention to file suit.” Ex. A at 11.
`Impossible refused to respond to this interrogatory, arguing that such information is not relevant
`or proportional. Ex. D at 32-33. But, Impossible’s communications with third parties regarding
`Motif and Motif’s products are not only relevant, but critical to many of the most important issues
`in this case—at a minimum, to Motif’s equitable defenses and Impossible’s claim for injunctive
`relief. For example, such communications reflect the timing and scope of Impossible’s awareness
`of Motif’s activities, whether (and when) Impossible considered Motif’s activities to infringe,
`whether Impossible unjustifiably delayed bringing suit, and whether Impossible intentionally
`interfered with Motif’s business relationships. E.g., Ex. E at 8. This discovery is crucial to Motif’s
`defenses and must be provided, but Impossible refuses to do so. Ex. F at 4.
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`III.
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`Interrogatory Nos. 6 and 14
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`Interrogatory No. 6 asks Impossible to, inter alia, “[d]escribe the circumstances of
`Impossible’s first anticipation of potential litigation against Motif involving any of the Patents-in-
`Suit,” “including when Impossible first anticipated litigation against Motif” and “the identities of
`those involved.” Ex. A at 9. Although Impossible has refused to respond whatsoever, citing
`privilege (Ex. D at 16-17), there are facts regarding Impossible’s first anticipation of litigation that
`cannot be properly withheld as privileged. See Upjohn Co. v. United States, 449 U.S. 383, 395
`(1981) (“[T]he protection of the privilege extends only to communications and not to facts.”). Such
`facts include the date Impossible first anticipated litigation against Motif and the Impossible
`employees involved in the decision to sue Motif, which relate to Impossible’s request for injunctive
`relief, and whether Impossible did or did not implement a litigation hold. Impossible has no basis
`to withhold such non-privileged facts, and it should be compelled to do so.
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`The same is true regarding Impossible’s deficient response to Interrogatory No. 14 in
`Motif’s Second Set of Interrogatories (Ex. G, dated April 25, 2023), which Impossible also refuses
`to supplement, citing privilege. Interrogatory No. 14 asks Impossible to provide, inter alia, facts
`related to its use of third parties to investigate Motif’s business, including the circumstances of
`retention, the compensation paid to such third parties, and oral or written reports of the
`investigations. Ex. G. Although Impossible claims that at least some of these facts appear in the
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`2
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`Case 1:22-cv-00311-WCB Document 292 Filed 12/05/23 Page 4 of 5 PageID #: 18056
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`Impossible’s briefing regarding the propriety of Impossible’s third-party investigators, that does
`not absolve Impossible of its duty to supplement its response to Interrogatory No. 14 to include
`such non-privileged facts. Nor does it absolve Impossible from providing other non-privileged
`facts, such as the compensation paid to such investigators, which has thus far not been disclosed.
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`IV.
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`Interrogatory No. 9
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`Interrogatory No. 9 properly seeks basic information regarding Impossible’s claimed
`damages (Ex. A at 10). See Personal Audio, LLC v. Google LLC, C.A. No. 17-1751-CFC-CJB,
`2018 WL 4502002, at *2 (D. Del. Sept. 20, 2018) (granting motion to compel plaintiff to provide
`a substantive supplemental response to interrogatory seeking “(1) certain information about
`[plaintiff’s] damages contentions; (2) factual information; and (3) identification of documents
`currently known to [plaintiff]”). Impossible’s initial response provided no substantive information
`at all, and Impossible did not supplement when requested, forcing Motif to seek the Court’s
`assistance. See Ex. E. There is no justification for Impossible’s highly prejudicial refusal to
`provide this information, not least because Motif has identified all sales of the accused products
`and provided detailed interrogatory responses that explain when, how, and for what purposes the
`accused products have been made. Although Impossible agreed to supplement this response “in
`due course” (Ex. F at 4), its failure to provide a date certain by which it will do so prejudices Motif.
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`V.
`
`Interrogatory Nos. 4 and 8
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`Tacitly acknowledging the deficiencies in its responses to Interrogatory Nos. 4 and 8,
`Impossible has agreed to supplement them. Exs. E at 5-6; F at 4. Impossible has refused, however,
`to provide a date certain to satisfy that promise. Given the importance of the information sought
`by these interrogatories, the Court should compel Impossible to supplement immediately.
`
`Interrogatory No. 4, for example, seeks information related to whether and how
`Impossible’s commercial products practice the asserted claims, as well as whether Impossible
`marked such products. Demonstrating marking is Impossible’s burden. See Arctic Cat Inc. v.
`Bombardier Rec. Prods. Inc., 876 F.3d 1350, 1366-67 (Fed. Cir. 2017). Impossible’s counsel has
`already verbally represented that Impossible did not mark its products, yet Impossible has delayed
`confirming that position, in admissible form, through the formal discovery process. To develop its
`marking defense, Motif’s needs Impossible to provide a complete identification of when each
`practicing product became public, the claims each such product allegedly practices, how each such
`product satisfies every claim element, and whether/when/how each such product was marked.
`
`Interrogatory No. 8 seeks Impossible’s contentions as to secondary considerations of non-
`obviousness. In response, Impossible merely lists its commercial products and states that there is
`a presumed nexus between them and the claimed secondary considerations. Ex. D at 21. This does
`not come close to providing a factual basis for any such presumed nexus. See Fox Factory, Inc. v.
`SRAM, LLC, 944 F.3d 1366, 1373 (Fed. Cir. 2019) (“[P]resuming nexus is appropriate when the
`patentee shows that the asserted objective evidence is tied to a specific product and that product
`embodies the claimed features, and is coextensive with them.” (internal quotation marks omitted)).
`Impossible’s current response leaves Motif in the dark regarding Impossible’s contentions
`regarding non-obviousness, and it should be ordered to supplement. E.g., Ex. E at 6-7.
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`Impossible has failed to satisfy its discovery obligations, and Motif is entitled to the
`information currently missing from Impossible’s responses to these interrogatories.
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`Case 1:22-cv-00311-WCB Document 292 Filed 12/05/23 Page 5 of 5 PageID #: 18057
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`Respectfully,
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`/s/ Jeremy A. Tigan
`
`Jeremy A. Tigan (#5239)
`
`JAT: lo
`Attachments
`cc:
`Clerk of the Court (via hand delivery)
`All Counsel of Record (via CM/ECF and email)
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