Case 1:22-cv-00311-WCB Document 31 Filed 11/14/22 Page 1 of 5 PageID #: 1953
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Civil Action No. 22-311-WCB
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`MOTIF FOODWORKS, INC.,
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`v.
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`Defendant.
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`MEMORANDUM OPINION AND ORDER
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`On March 9, 2022, plaintiff Impossible Foods Inc. (“Impossible”) brought this action
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`against defendant Motif Foodworks, Inc., (“Motif”) alleging infringement of U.S. Patent No.
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`10,863,761 (“the ’761 patent”). Dkt. No. 1. On July 25, 2022, Impossible filed a First Amended
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`Complaint, which added allegations that Motif infringes four additional patents: U.S. Patent No.
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`9,943,096 (“the ’096 patent”); U.S. Patent No. 10,039,306 (“the ’306 patent”); U.S. Patent No.
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`11,013,250 (“the ’250 patent”); and U.S. Patent No. 11,224,241 (“the ’241 patent”). Dkt. No. 19.
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`On September 6, 2022, Impossible filed a Second Amended Complaint, alleging infringement of
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`two more patents: U.S. Patent No. 10,273,492 (“the ’492 patent”) and U.S. Patent No. 10,689,656
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`(“the ’656 patent”). Dkt. No. 22. Motif now moves to dismiss several counts of the Second
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`Amended Complaint. Dkt. No. 24. For the reasons set forth below, the motion is DENIED.
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`I.
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`Background
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`Impossible produces and sells plant-based meat products, including the well-known
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`Impossible Burger. Impossible uses “hemoproteins” in its products to “replicat[e] the experience
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`1
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Civil Action No. 22-311-WCB
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`MOTIF FOODWORKS, INC.,
`
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`v.
`
`Defendant.
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
`
`On March 9, 2022, plaintiff Impossible Foods Inc. (“Impossible”) brought this action
`
`against defendant Motif Foodworks, Inc., (“Motif”) alleging infringement of U.S. Patent No.
`
`10,863,761 (“the ’761 patent”). Dkt. No. 1. On July 25, 2022, Impossible filed a First Amended
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`Complaint, which added allegations that Motif infringes four additional patents: U.S. Patent No.
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`9,943,096 (“the ’096 patent”); U.S. Patent No. 10,039,306 (“the ’306 patent”); U.S. Patent No.
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`11,013,250 (“the ’250 patent”); and U.S. Patent No. 11,224,241 (“the ’241 patent”). Dkt. No. 19.
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`On September 6, 2022, Impossible filed a Second Amended Complaint, alleging infringement of
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`two more patents: U.S. Patent No. 10,273,492 (“the ’492 patent”) and U.S. Patent No. 10,689,656
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`(“the ’656 patent”). Dkt. No. 22. Motif now moves to dismiss several counts of the Second
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`Amended Complaint. Dkt. No. 24. For the reasons set forth below, the motion is DENIED.
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`I.
`
`Background
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`Impossible produces and sells plant-based meat products, including the well-known
`
`Impossible Burger. Impossible uses “hemoproteins” in its products to “replicat[e] the experience
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`1
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`Case 1:22-cv-00311-WCB Document 31 Filed 11/14/22 Page 2 of 5 PageID #: 1954
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`of cooking and eating meat in plant-based foods.”1 Dkt. No. 26 at 3. Specifically, Impossible
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`alleges that its food products contain a plant-based heme-containing protein called soy
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`leghemoglobin, or “LegH.” Dkt. No. 22 at ¶ 14. The seven asserted patents in this case are directed
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`to manufacturing processes, ingredients, and finished products relating to Impossible’s food
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`products.
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`Motif also produces and sells plant-based food products. Motif’s products use an
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`ingredient called “HEMAMI,” which includes a heme-containing protein called “bovine
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`myoglobin.” Impossible alleges that the Motif products that include HEMAMI infringe
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`Impossible’s rights in the seven asserted patents in this case. Motif moves to dismiss the counts
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`of infringement relating to the ’241 patent, the ’096 patent, the ’306 patent, and the ’250 patent, as
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`well as claim 12 of the ’761 patent. The relevant claim limitations require the use of compositions
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`that:
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`• are “free of animal heme-containing protein” (the ’241 patent);
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`• “contain[] no animal products” (the ’096 patent; claim 12 of the ’761 patent); or
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`• comprise “a non-animal heme-containing protein” (the ’306 patent and the ’250
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`patent).
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`Motif argues that those limitations do not read on its products, because bovine myoglobin
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`is an animal protein that occurs naturally in domesticated cows and is therefore excluded from the
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`scope of the asserted claims. Impossible argues that, although bovine myoglobin occurs naturally
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`in cows, the bovine myoglobin used in HEMAMI is not derived from any animal source and
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`therefore falls within the scope of Impossible’s patent claims.
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`1 Hemoproteins are proteins that contain a compound called “heme,” an iron-containing
`compound that is a “central component” of the flavor and aroma of meat. See Dkt. No. 22 at ¶ 13.
`2
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`Case 1:22-cv-00311-WCB Document 31 Filed 11/14/22 Page 3 of 5 PageID #: 1955
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`II.
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`Legal Standard
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`Under Federal Rule of Civil Procedure 12(b)(6), a complaint should be dismissed if it
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`“fail[s] to state a claim upon which relief can be granted.” The Third Circuit has instructed district
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`courts to conduct a “two-part analysis” in evaluating a motion to dismiss for failure to state a claim.
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`Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the district court must
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`separate the factual and legal elements of the claims. Id. That is, the court “must accept all of the
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`complaint’s well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210–11.
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`Second, the court “must then determine whether the facts alleged in the complaint are sufficient to
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`show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Ashcroft v. Iqbal, 556
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`U.S. 662, 679 (2009)).
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`When a motion to dismiss relates to allegations of infringement, the motion should be
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`denied if deciding the motion would “require a district court to construe the meaning of claim
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`terms and perform an infringement analysis . . . because [that] type of analysis is inappropriate at
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`the pleading stage.” Pragmatus AV, LLC v. Yahoo! Inc., No. 11-902, 2012 WL 6044793, at *6
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`(D. Del. Nov. 13, 2012), report and recommendation adopted, 2013 WL 2295344 (May 24, 2013)
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`(collecting cases); see also Nalco Co. v. Chem-Mod, LLC, 883 F.3d 1337, 1349 (Fed. Cir. 2018)
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`(noting that a dispute regarding claim construction is “not suitable for resolution on a motion to
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`dismiss”).
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`III. Discussion
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`It is undisputed that the bovine myoglobin that Motif uses in its HEMAMI products is
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`produced using yeast and does not have any “direct animal provenance.” Dkt. No. 28 at 4. The
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`key question, therefore, is whether a protein that is produced using yeast falls within the scope of
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`3
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`Case 1:22-cv-00311-WCB Document 31 Filed 11/14/22 Page 4 of 5 PageID #: 1956
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`the asserted claims if that protein is “100% identical” to a protein that occurs naturally in animals.
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`See id.
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`The limitations at issue have at least two plausible constructions. On one hand, the term
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`“non-animal heme-containing protein” could be read to cover only proteins that are not naturally
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`present in animals. On the other hand, that term could be read to cover any proteins that are not
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`derived from an animal source, regardless of whether such proteins are chemically identical to
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`those that are naturally present in animals. The phrases “contains no animal products” and “a non-
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`animal heme-containing protein” similarly could be construed using either approach. Because it
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`is inappropriate to conduct a claim construction analysis at the pleading stage, I decline to resolve
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`that dispute regarding the scope of the claims, particularly given the limited record before me. See
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`Pragmatus, 2012 WL 6044793, at *6.
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`Assuming the broader construction of “non-animal heme-containing protein” applies, i.e.,
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`one that only requires that the protein be derived from a non-animal source (e.g., plants or yeast),
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`Impossible has plausibly alleged that Motif’s HEMAMI products include bovine myoglobin that
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`was not derived from an animal source. Indeed, Motif even admits that its bovine myoglobin is
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`produced using yeast. Dkt. No. 28 at 4. The claim construction dispute underlying this motion
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`may ultimately be resolved in Motif’s favor during the Markman proceedings in this case, but at
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`this point, Motif has failed to demonstrate that Impossible fails to state a claim upon which relief
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`can be granted. Accordingly, Motif’s motion to dismiss is DENIED.
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`Case 1:22-cv-00311-WCB Document 31 Filed 11/14/22 Page 5 of 5 PageID #: 1957
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`IT IS SO ORDERED.
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`SIGNED this 14th day of November, 2022.
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`______________________________
`WILLIAM C. BRYSON
`UNITED STATES CIRCUIT JUDGE
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