Case 1:22-cv-00311-WCB Document 295 Filed 12/05/23 Page 1 of 3 PageID #: 18149
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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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`JURY TRIAL DEMANDED
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`))))))))))
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`IMPOSSIBLE FOODS INC.,
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`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
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`Plaintiff,
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`v.
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`Defendants.
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`PLAINTIFF’S REPLY LETTER BRIEF REGARDING DISCOVERY DISPUTE TO
`THE HONORABLE WILLIAM C. BRYSON FROM BINDU A. PALAPURA
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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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`Attorneys for Plaintiff Impossible Foods Inc.
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`OF COUNSEL:
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`Wendy L. Devine
`Kristina M. Hanson
`Shannon P. Gillespie McComb
`Jessica Ramsey
`Susannah M. L. Gagnon
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Tel: (415) 947-2000
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`Matthew R. Reed
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
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`Lori P. Westin
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Tel: (858) 350-2300
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`Dated: November 21, 2023
`Public Version Dated: December 5, 2023
`11174771 / 20200.00002
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`PUBLIC VERSION
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`Case 1:22-cv-00311-WCB Document 295 Filed 12/05/23 Page 2 of 3 PageID #: 18150
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`Dear Judge Bryson:
` Products For Over 8 Months. On March 3, 2023 Motif represented
`Motif Misrepresented
`that it had
` heme-containing products when it produced Core Technical Documents (CTDs)
`that included product data sheets for
` products. D.I. 264-1 at Ex. 3. Motif’s attempt to excuse
`that representation by re-writing Impossible’s identification of accused products is not credible.
`Impossible did not identify “any” heme-containing product without limitation—Impossible
`identified “Motif’s heme-containing products… to the extent made, used, sold, and/or offered
`for sale...” D.I. 264-1, Ex. 2 at 2. Now, nearly nine months later, Motif has told the Court (and,
`for the first time, Impossible) that a large number of the
`products in Motif’s CTDs are (1)
`“products that [Motif] never produced or possessed at all,” and (2) products “Motif itself never
`created” and “products produced by third-parties.”1 D.I. 268 at 2.
`Motif’s Response to Interrog. 18 Was Not, And Still Is Not, Transparent. Motif’s response,
`served June 26, only contains a list of 10 documents that contain no information regarding the
`majority of the
`products. D.I. 264, Ex. 16 at 18-20; Ex. 21. Not until September 29 did Motif
`supplement, stating some were “prototypes,” and not until yesterday (in opposition to this
`motion) did Motif assert that some were mere fantasies that never existed at all, or produced by
`“third-parties.” Motif’s document production that followed its CTDs (which includes copious
`duplicative documents inflating Motif’s page count, e.g., Ex. 22) does nothing to remedy this, if
`anything it further obfuscates. E.g. compare, D.I. 264-1, Ex. 3 at MOTIF00000682, 684, 695
`); D.I. 264-
`) Indeed, Motif served a
`1, Exs. 14-15 (
`non-infringement contention interrogatory response on October 30 specifically about products
`Motif claimed for the first time in opposition to this motion that “Motif itself had never created
`or distributed”—yet made no mention of that supposed fact. D.I. 268 at 1-2; Ex. 23 at 13.
`Commercialization or Public Distribution Does Not Determine Relevance. Motif’s
`argument that the only “relevant” products are the
` that it has commercialized or publicly
`distributed is wrong.2 The relevance to Impossible’s request for injunctive relief is clear—
`Impossible created the market for plant-based meat replicas containing non-animal heme,
`protected that technology with patents, and along with its co-branding partners is the only
`company lawfully participating in that market. Any infringing Motif product competing in
`Impossible’s exclusive market may cause irreparable harm. See Douglas Dynamics, LLC v.
`Buyers Prod. Co., 717 F.3d 1336, 1344 (Fed. Cir. 2013). Moreover, Motif offers no support for
`its burden objection. These products and this information are necessarily in Motif’s possession
`because, as Motif represented 7 months ago, they are Motif products.
`Motif represented that products exist, then refused to provide samples or even information about
`when they were made. That lack of discovery prejudices Impossible, and should Impossible not
`pursue an infringement judgment, Motif will likely later attempt to argue preclusion. If these
`products do not exist and never existed, Motif should state that in response to No. 18. If these
`are Motif products, Motif should provide samples and a complete response to No. 18.
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`1
` Ex. 19
`at MOTIF00435827; Ex. 20. If Motif is referencing products made by non-agent third parties, it
`begs the question why Motif included documents regarding such products in its CTDs.
`2 This argument is particularly shocking given that Impossible served 4,324 pages of
`infringement contentions regarding the “irrelevant” products on April 7 and Motif said nothing
`about the products being “irrelevant” or “never produced or possessed at all” until yesterday.
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`Case 1:22-cv-00311-WCB Document 295 Filed 12/05/23 Page 3 of 3 PageID #: 18151
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`Page 2
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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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`The Honorable William C. Bryson
`November 21, 2023
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`BAP:mes/ 11174771/20200.00002
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`Enclosures
`cc:
`Counsel of Record (via CM/ECF)
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