Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 1 of 18 PageID #: 19077
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 22-311-WCB
`
`
`
`
`
`
`
`))))))))))
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
`
`PLAINTIFF IMPOSSIBLE FOODS INC.’S OPENING BRIEF IN SUPPORT OF
`MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT
`
`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
`
`Attorneys for Plaintiff Impossible Foods Inc.
`
`OF COUNSEL:
`
`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
`
`Matthew R. Reed
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
`
`Lori P. Westin
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Tel: (858) 350-2300
`
`Dated: December 1, 2023
`Public Version Dated:
`December 29, 2023
`11188282/20200.00002
`
`PUBLIC VERSION
`
`

`

`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 2 of 18 PageID #: 19078
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`TABLE OF CONTENTS
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`Page
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`I.
`
`II.
`
`III.
`
`NATURE AND STAGE OF PROCEEDINGS .................................................................. 1
`
`SUMMARY OF THE ARGUMENT ................................................................................. 2
`
`STATEMENT OF FACTS ................................................................................................. 3
`
`A.
`
`B.
`
`Discovery of the
`
`Documents ...................................................................... 3
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`Motif’s Confidentiality Designation of Key
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`Documents ........................... 4
`
`IV.
`
`ARGUMENT ...................................................................................................................... 5
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`Legal Standard ........................................................................................................ 5
`
`Impossible’s Motion is Timely ............................................................................... 7
`
`Impossible Has Not Sought Leave in Bad Faith ..................................................... 7
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`Defendants Will Not Suffer Undue Prejudice ........................................................ 8
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`The Proposed Amendments Would Not be Futile ................................................ 10
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`Impossible’s Motion Would Serve Judicial Economy.......................................... 11
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`V.
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`CONCLUSION ................................................................................................................. 11
`
`i
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 3 of 18 PageID #: 19079
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Agere Sys. Guardian Corp. v. Proxim, Inc.,
`190 F. Supp. 2d 726 (D. Del. 2002) ...................................................................................10
`Alvin v. Suzuki,
`227 F.3d 107 (3d Cir. 2000)...............................................................................................10
`Betchel v. Robinson,
`886 F.2d 644 (3d Cir. 1989).................................................................................................8
`Boston Sci. Corp. v. Edwards Lifesciences Corp., No. 16-275-SLR-SRF,
`2017 WL 781046 (D. Del. Feb. 28, 2017) .........................................................................10
`Butamax™ Advanced Biofuels LLC v. Gevo, Inc., No. 11-54-SLR,
`2012 WL 2365905 (D. Del. June 21, 2012) .....................................................................7, 8
`Callaway Golf Co. v. Dunlop Slazenger Group Americas, Inc.,
`295 F. Supp. 2d 430 (D. Del. 2003) .....................................................................................6
`CenterForce Techs., Inc. v. Austin Logistics Inc., No. 99-243,
`2000 WL 652943 (D. Del. Mar. 10, 2000) ..........................................................................8
`Int’l Constr. Prods. LLC v. Caterpillar Inc., No. 15-108-RGA,
`2018 WL 4611216 (D. Del. Sept. 26, 2018) ......................................................................11
`Intell. Ventures I LLC v. Toshiba Corp., No. 13-453-SLR-SRF,
`2015 WL 4916789 (D. Del. Aug. 17, 2015) ........................................................................7
`Invensas Corp. v. Renesas Elecs. Corp., No. 11-448-GMS-CJB,
`2013 WL 1776112 (D. Del. Apr. 24, 2013) .....................................................................5, 6
`J.E. Mamiye & Sons, Inc. v. Fidelity Bank,
`813 F.2d 610 (3d Cir. 1987).............................................................................................7, 8
`Targus Int’l LLC v. Victorinox Swiss Army, Inc., No. 20-cv-464-RGA,
`2021 WL 2291978 (D. Del. June 4, 2021) .....................................................................9, 10
`Trueposition, Inc. v. Allen Telecom, Inc., No. 01-823-GMS,
`2002 WL 1558531 (D. Del. July 16, 2002) ...............................................................6, 7, 10
`U.S. ex rel. B &R, Inc. v. Donald Lake Constr.,
`19 F. Supp. 2d 217 (D. Del. 1998) .......................................................................................8
`STATUTES
`Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq. .......................................................................1
`
`ii
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 4 of 18 PageID #: 19080
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`RULES
`Fed. R. Civ. P. 15(a)(2) ................................................................................................................1, 5
`
`iii
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 5 of 18 PageID #: 19081
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`Pursuant to Fed. R. Civ. P. 15(a)(2), and timely pursuant to the Court’s scheduling order
`
`(D.I. 161, ¶ 7), Plaintiff Impossible Foods Inc. (“Impossible”) submits this opening brief in
`
`support of its Motion for Leave to File Fourth Amended Complaint. Through the proposed
`
`amendment, Impossible would add a claim for trade secret misappropriation under the Defend
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`Trade Secrets Act, 18 U.S.C. § 1836 et seq. against Defendant Motif FoodWorks, Inc. (“Motif”).
`
`This DTSA claim is based on documents Motif produced to Impossible in this lawsuit relating to
`
`the same scientific field as, but not disclosed by, the technology in U.S. Patent Nos. 10,273,492
`
`and 10,689,656 (collectively the “Yeast Patents”).
`
`I.
`
`NATURE AND STAGE OF PROCEEDINGS
`
`Impossible filed this action on March 9, 2022, against Motif for direct, induced,
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`contributory, and willful infringement of U.S. Patent No. 10,863,761. D.I. 1. On July 25, 2022,
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`the Court granted Impossible leave to file its First Amended Complaint (D.I. 18), by which
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`Impossible added allegations of infringement of U.S. Patent Nos. 9,943,096, 10,039,306,
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`11,013,250, and 11,224,241. D.I. 19. On September 7, 2022, the Court granted Impossible leave
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`to file its Second Amended Complaint (D.I. 21), by which Impossible added allegations of
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`infringement of U.S. Patent Nos. 10,273,492 and 10,689,656 (collectively the “Yeast Patents”).
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`D.I. 22. No discovery was taken until after the Fed. R. Civ. P. Rule 16 scheduling conference
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`was held on December 1, 2022.
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`On January 23, 2023, Impossible requested samples of the accused yeast strains.
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`Information learned in the context of the dispute regarding Motif’s production of yeast samples
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`and in the context of subpoenas to Ginkgo Bioworks, Inc. (“Ginkgo”) led Impossible to seek
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`leave to file a Third Amended Complaint (D.I. 129) adding Ginkgo as a defendant with respect
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`to the Yeast Patents.
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 6 of 18 PageID #: 19082
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`On July 25, 2023, the Court separated the claims for infringement of the Food Product
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`Patents (against Motif) from the claims for infringement of the Yeast Patents (against Motif and
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`Ginkgo). D.I. 161. The deadlines set forth in the original scheduling order (D.I. 37) and
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`extended by the Stipulation and Order to Amend Scheduling Order in Food Product Patents Case
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`(D.I. 214) continue to apply to the Food Product Patents claims while the deadlines in the
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`Amended Scheduling Order (D.I. 161) apply to the Yeast Patents claims.
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`Fact discovery is ongoing and does not close with respect to the Yeast Patents claims
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`until June 7, 2024, or sixty days after the Court enters its Markman order, whichever is later.
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`D.I. 161, ¶ 8(a). This provides at least six months to take discovery on the proposed DTSA
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`claim. To date, no party depositions have been noticed for the Yeast Patents claims. Impossible
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`served its initial infringement contentions on October 20, 2023 (D.I. 227) and Ginkgo served its
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`initial invalidity contentions on November 17, 2023 (D.I. 266). The Yeast Patents trial is set to
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`begin on June 23, 2025, more than 18 months from now. D.I. 161, ¶ 19.
`
`Impossible timely brings this motion within the Court’s December 1, 2023, deadline to
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`amend pleadings and join parties. Id., ¶ 7.
`
`II.
`
`SUMMARY OF THE ARGUMENT
`
`Impossible seeks leave to amend its Third Amended Complaint and add a claim for trade
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`secret misappropriation against Motif under the federal Defend Trade Secrets Act. Motif’s
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`document production in this case shows that Motif hired a third party to obtain Impossible trade
`
`secrets from
`
`
`
`,
`
`. As explained below, this motion should be
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`granted for the following reasons.
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`2
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 7 of 18 PageID #: 19083
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`First, Impossible’s motion is timely, as it is being filed within the Court’s December 1,
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`2023 deadline to amend pleadings and join parties. D.I. 161, ¶ 7.
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`Second, Impossible has not sought leave to add the DTSA claim against Motif in bad
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`faith or with a dilatory motive.
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`Third, Defendants would not suffer undue prejudice should the court grant Impossible’s
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`Motion as the subject matter of the DTSA claim—heme production in yeast—overlaps with the
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`subject matter of the Yeast Patents claims for which fact discovery concludes on June 7, 2024.
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`D.I. 214, ¶ 8(a).
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`Fourth, granting Impossible’s motion would promote judicial economy. Bringing a
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`DTSA claim against Motif in a separate federal action in this Court would create unnecessary
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`inefficiency.
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`III.
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`STATEMENT OF FACTS
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`Impossible is a leading plant-based food innovator that has successfully developed
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`multiple award-winning plant-based meat replica products, including the IMPOSSIBLE
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`BURGER, since its founding in 2011. D.I. 129, ¶¶ 1, 4, 19. Since the company discovered the
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`utility of hemoproteins for replicating the experience of cooking and eating meat, Impossible has
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`applied for and received numerous patents that protect its manufacturing processes, its
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`ingredients, and its finished products. Id., ¶¶ 4, 16, 20. Impossible filed suit against Motif and
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`Ginkgo accusing the yeast cells developed, owned, and used by Ginkgo and Motif to produce
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`heme-containing proteins of infringing Impossible’s patents. D.I. 129.
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`A.
`
`Discovery of the
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` Documents
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`On July 21, 2023, Motif produced documents it received from a third-party investigator
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`that Motif had hired,
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`. The
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` documents revealed that, during at least a two-
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`3
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 8 of 18 PageID #: 19084
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`year timespan, Motif conducted an organized operation to acquire Impossible trade secrets from
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` and third parties with confidentiality obligations who were not authorized to
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`disclose such information. Motif produced these documents as part of a much larger bulk
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`production over the course of a few weeks in July.
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`Overall, Motif’s production contains about 750 documents mentioning
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`,” of
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`which about 400 also mentioned “Impossible.” These 750 and 400 documents represent less
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`than 1% of the over 97,000 documents produced by Motif in July. Locating these documents
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`required laborious document review.
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`B.
`
`Motif’s Confidentiality Designation of Key
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` Documents
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`Making things more difficult, Motif designated the most important of these
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`
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`documents “Highly Confidential—Patent Prosecution” under the Amended Protective Order,
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`thereby limiting access within Impossible to only specific in-house legal advisors with no
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`involvement in patent prosecution. D.I. 186, ¶ 6.3. As Motif is aware, in view of the restriction
`
`on patent prosecution, Impossible has not designated any in-house employees for access to
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`“Highly Confidential—Patent Prosecution” information pursuant to the Protective Order.
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`After locating these documents and determining that they discuss detailed aspects of
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`Impossible’s own heme production processes (and therefore should be accessible by Impossible
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`personnel), on September 14, 2023 Impossible requested that Motif change the confidentiality
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`designation. Ex. 1 at 8-9. Upon receiving no response, Impossible followed up five days later
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`again requesting that the confidentiality designation be changed or availability for meet and
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`confer. Id. at 8. Motif replied on September 18 by re-designating the documents as “Highly
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`Confidential”. Id. at 7-8. This enabled Impossible to share the information with three in-house
`
`4
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 9 of 18 PageID #: 19085
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`legal advisors but did not enable Impossible to share the information with the responsible
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`scientists who could verify the information.
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`Following that down-designation, also on September 18, 2023, Impossible requested
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`pursuant to § 2.5 of the Amended Protective Order that Motif provide “Confidential” versions of
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`the documents, redacting any information that Motif contends is “Highly Confidential”
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`belonging to Motif such that the documents could be shared within Impossible beyond the three
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`in-house legal advisors. Id. at 5-7. However, when Motif belatedly produced the redacted
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`documents at 10:00pm on Friday September 22, 2023 (Ex. 2), they were heavily redacted.
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`Indeed, Motif’s redactions rendered the documents illegible as to Impossible’s own information.
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`E.g., Ex. 1 at 3-4. The parties’ disagreement culminated in a meet and confer on October 2,
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`2023. Ex. 1 at 1-3. The parties remained at an impasse.
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`On November 1, 2023, Impossible served a third-party subpoena to
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`,
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`requesting production of all documents obtained from Impossible and communications regarding
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`Impossible (2023-10-30 FRCP 45 Third Party Subpoena to
`
`). Ex. 3. On
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`November 21, 2023,
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` produced documents in response to the subpoena that appear to
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`identify more information beyond what Motif originally produced in July. Ex. 4.
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`Motif’s designation tactics delayed and complicated Impossible’s investigation, though
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`Impossible was nonetheless able to timely file this motion.
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`IV.
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`ARGUMENT
`
`A.
`
`Legal Standard
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`Under Fed. R. Civ. P. 15(a)(2), “[t]he court should freely give leave [to amend] when
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`justice so requires.” Leave to amend will only be denied upon a showing that “delay in seeking
`
`to amend is undue, motivated by bad faith, or prejudicial to the opposing party.” Invensas Corp.
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`5
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 10 of 18 PageID #: 19086
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`v. Renesas Elecs. Corp., No. 11-448-GMS-CJB, 2013 WL 1776112, at *1 (D. Del. Apr. 24,
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`2013) (citations omitted). A court has the power to ground its decision to grant leave to amend,
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`with reason, on considerations of, inter alia, judicial economy/burden on the court and prejudice
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`caused by denying leave to amend. See, e.g., Trueposition, Inc. v. Allen Telecom, Inc., No. 01-
`
`823-GMS, 2002 WL 1558531, at *2 (D. Del. July 16, 2002) (finding that judicial economy
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`weighs in favor of granting motion to amend). “The nonmovant bears the burden to demonstrate
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`that actual prejudice will result from the amendment of the complaint.” Invensas Corp., 2013
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`WL 1776112 at *2. Impossible’s amendments are timely, will not prejudice Motif or Ginkgo,
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`and are meritorious.
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`Courts frequently grant motions requesting leave to add new causes of action in matters
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`where there is less time for discovery than there is here. For example, in Callaway Golf Co. v.
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`Dunlop Slazenger Group Americas, Inc., the defendant was charged with infringement of a
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`patent, and brought a trade secret misappropriation counterclaim. 295 F. Supp. 2d 430, 432-33
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`(D. Del. 2003). With two months left in discovery, the counterclaimant sought leave to add a
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`new counterclaim for negligent hiring/supervision based on facts learned during discovery. Id.
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`The Court granted leave to amend, citing the Supreme Court’s policy favoring liberal
`
`amendment, and noting “I am not persuaded that [counterdefendant], with more than two months
`
`of discovery remaining […] was unduly prejudiced.” Id. Unlike Callaway, Impossible is
`
`seeking leave to add related trade secret claims to the Yeast Patent case with more than six
`
`months remaining for fact discovery and ten months remaining for expert discovery.
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`Additionally, both the infringement and damages experts for the Yeast Patent claims should be
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`able to speak to the trade secret claims. The underlying science is related, and damages
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`6
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 11 of 18 PageID #: 19087
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`contentions for intellectual property claims such as trade secret misappropriation and patent
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`infringement share a strong family resemblance.
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`B.
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`Impossible’s Motion is Timely
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`Impossible files this motion within the time period set by the Court. D.I. 161, ¶ 7. The
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`Court’s Amended Scheduling Order contemplates that issues may arise during the case,
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`expressly permitting motions to amend the pleadings by December 1, 2023. Id. A motion for
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`leave to amend that is “filed with the deadline set forth in the scheduling order for amending
`
`pleadings . . . generally precludes a finding of undue delay.” Intell. Ventures I LLC v. Toshiba
`
`Corp., No. 13-453-SLR-SRF, 2015 WL 4916789, at *2 (D. Del. Aug. 17, 2015); see also
`
`Butamax™ Advanced Biofuels LLC v. Gevo, Inc., No. 11-54-SLR, 2012 WL 2365905, at *2 (D.
`
`Del. June 21, 2012) (holding that a motion to amend filed on the deadline for amended pleadings
`
`was “filed timely and, therefore, there can be no unfair prejudice to defendant”).
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`Moreover, as described above, Impossible’s motion arises from facts it learned about
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`from Motif’s production, where Motif hampered Impossible’s ability to investigate, first through
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`“Highly Confidential—Patent Prosecution” designations and then through pervasive blackout
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`redactions. Impossible could not have known about its trade secret claim before receiving,
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`reviewing, and investigating the documents Motif produced showing Motif’s wrongdoing.
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`C.
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`Impossible Has Not Sought Leave in Bad Faith
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`A timely-filed proposed amendment weighs against a finding of bad faith. TruePosition,
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`2002 WL 1558531 at *2. Impossible’s motion and amended complaint are timely and consistent
`
`with the deadline in the Amended Scheduling Order. D.I. 161, ¶ 7. Also, Impossible timely
`
`brings this motion after the underlying facts were revealed by Motif’s documents production and
`
`following diligent investigation. Such circumstances do not reflect any bad faith. J.E. Mamiye
`
`7
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 12 of 18 PageID #: 19088
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`& Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 614 (3d Cir. 1987) (citation omitted) (challenges
`
`based on bad faith “focus on the plaintiffs’ motives for not amending their complaint . . .
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`earlier.”); U.S. ex rel. B &R, Inc. v. Donald Lake Constr., 19 F. Supp. 2d 217, 221 n.6 (D. Del.
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`1998) (equating bad faith with “sinister motive” or “nefarious purpose.”). At bottom, Impossible
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`discovered through document production that Motif hired a third party to ferret out Impossible
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`trade secrets. There is nothing sinister or nefarious in acting to protect one’s trade secret rights
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`upon such a discovery.
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`D.
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`Defendants Will Not Suffer Undue Prejudice
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`To demonstrate undue prejudice, the non-moving party “must do more than merely claim
`
`prejudice; it must show that it was unfairly disadvantaged or deprived of the opportunity to
`
`present facts or evidence which it would have offered had the . . . amendments been timely.”
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`Betchel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (internal quotations omitted, citations
`
`omitted). Undue prejudice is unlikely to occur where a motion to amend is made within the
`
`deadline set in the scheduling order. Butamax™, 2012 WL 2365905 at *2. No undue prejudice
`
`exists where the parties have ample time to conduct discovery on the newly-added claims.
`
`CenterForce Techs., Inc. v. Austin Logistics Inc., No. 99-243, 2000 WL 652943, at *6 (D. Del.
`
`Mar. 10, 2000) (holding that addition of new patent claims is not prejudicial where “discovery
`
`has not yet closed” and “both claims involve the same product”).
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`Defendants have no grounds to claim prejudice. The close of fact discovery for the Yeast
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`Patents is June 7, 2024, more than six months from now. D.I. 161, ¶ 8(a). Trial in this action is
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`over 18 months from now on June 23, 2025. Id., ¶ 19. The science behind the Yeast Patents is
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`the same as the science behind Impossible’s trade secrets involved in its heme fermentation
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`process—the focal point of the proposed DTSA claim. Impossible’s allegations of trade secret
`
`8
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 13 of 18 PageID #: 19089
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`misappropriation are based on documents detailing growth and fermentation of the yeast accused
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`of infringement of the Yeast Patents and do not substantially change the scope of discovery.
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`Impossible’s addition of the trade secret misappropriation claim will not delay the case, therefore
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`Defendants will not be prejudiced.
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`While Impossible protects some of its heme-related intellectual property through patents
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`and some through trade secrecy, discovery can rationally proceed together on these claims and
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`the parties’ existing technical experts and damages experts can offer opinions as to both patent
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`and trade secret issues in the same written reports. Further, Impossible served a third-party
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`subpoena to
`
` on November 1, 2023, and
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` began producing documents to both Motif
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`and Impossible on November 21, 2023. Thus, the third-party discovery is already underway.
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`This is not a situation where future discovery is necessary to explain the parameters of
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`the new cause of action. Motif already produced
`
`
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`about the trade secret claims at issue, and this too will allow for focused, limited discovery in the
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` In short, there is no mystery
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`months to come.
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`Motif may claim that it will suffer prejudice because Impossible is seeking to introduce a
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`different type of intellectual property claim. Again, the underlying science is related, and a trade
`
`secret claim is less complex than a patent infringement claim. In any event, such issues can be
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`addressed, if necessary, at the pre-trial conference and trial; it is not a valid ground to deny
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`amendment of the Complaint at this early stage of the proceedings. Targus Int’l LLC v.
`
`Victorinox Swiss Army, Inc., No. 20-cv-464-RGA, 2021 WL 2291978, at *3 (D. Del. June 4,
`
`2021) (a party’s time and effort in defending against a new claim “does not, in itself, amount to
`
`9
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`

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`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 14 of 18 PageID #: 19090
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`undue prejudice” even where the amendment was untimely and would “increase the cost and
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`complexity of the current litigation”).
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`Ginkgo will not be affected because of the addition of the claim will not delay the case.
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`In sum, the Yeast Patents case is still in an early stage, with at least six months left of fact
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`discovery. There is no undue prejudice. Trueposition, 2002 WL 1558531 at *2 (with six months
`
`left in fact discovery, the “amendment of the [pleading] will not deprive [the non-movant] of the
`
`opportunity to present facts or evidence or otherwise prepare and present its case”). Courts in
`
`this District have found that motions for leave to amend filed by the deadline for amending
`
`pleadings and adding parties in the scheduling order do not unfairly prejudice the non-movant.
`
`E.g., Boston Sci. Corp. v. Edwards Lifesciences Corp., No. 16-275-SLR-SRF, 2017 WL 781046,
`
`at *2 (D. Del. Feb. 28, 2017) (non-movant failed to show that it would be unduly prejudiced by
`
`allowing an amended answer because non-movant “acknowledged the possibility of an amended
`
`answer by stipulating to the deadline for amended pleadings in the scheduling order.”).
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`E.
`
`The Proposed Amendments Would Not be Futile
`
`A motion for leave to amend is not futile unless the amended complaint “would not
`
`survive a motion to dismiss for failure to state a claim upon which relief could be granted.”
`
`Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000); see also Agere Sys. Guardian Corp. v. Proxim,
`
`Inc., 190 F. Supp. 2d 726, 736-37 (D. Del. 2002). Even then, courts have stated that the “better
`
`course is to liberally allow amendments that state a colorable claim and defer judgment as to
`
`whether they survive a motion to dismiss for failure to state a claim until such time when that
`
`motion is raised.” Agere Sys., 190 F. Supp. 2d at 736.
`
`Impossible’s proposed Fourth Amended Complaint is well-pleaded and specific. There is
`
`no time-bar, as Impossible has just learned about the facts leading to the claim.
`
`10
`
`

`

`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 15 of 18 PageID #: 19091
`
`F.
`
`Impossible’s Motion Would Serve Judicial Economy
`
`The Court and the Parties would benefit from resolving claims of infringement and trade
`
`secret claims that center on the same parties and the same technologies at the same time. No
`
`unique discovery is needed for the DTSA claim and even if parties decide they need extra
`
`discovery, it would be limited in scope and narrowly tailored and thus not grounds to deny a
`
`motion for leave to amend. Int’l Constr. Prods. LLC v. Caterpillar Inc., No. 15-108-RGA, 2018
`
`WL 4611216, at *4 (D. Del. Sept. 26, 2018) (“If requiring additional discovery (or, indeed,
`
`anything else that prolonged the litigation) were sufficient prejudice, most amendments would
`
`not be allowed.”). As discussed above, there are at least six months left in fact discovery and
`
`trial is not set to begin until the end of June 2025.
`
`V.
`
`CONCLUSION
`
`For the foregoing reasons, Impossible Foods respectfully requests that the Court grant its
`
`Motion for Leave to File Fourth Amended Complaint, adding a trade secret misappropriation claim
`
`against Defendant Motif.
`
`11
`
`

`

`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 16 of 18 PageID #: 19092
`
`Respectfully submitted,
`POTTER ANDERSON & CORROON LLP
`
`By: /s/ David E. Moore
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew M. Moshos (#6685)
`Hercules Plaza, 6th Floor
`1313 N. Market Street
`Wilmington, DE 19801
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`amoshos@potteranderson.com
`
`Attorneys for Plaintiff Impossible Foods Inc.
`
`OF COUNSEL:
`
`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
`
`Matthew R. Reed
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
`
`Lori P. Westin
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Tel: (858) 350-2300
`
`Dated: December 1, 2023
`Public Version Dated:
`December 29, 2023
`11188282/20200.00002
`
`12
`
`

`

`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 17 of 18 PageID #: 19093
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CERTIFICATE OF SERVICE
`
`I, David E. Moore, hereby certify that on December 1, 2023, the attached document was
`
`electronically filed with the Clerk of the Court using CM/ECF which will send notification to the
`
`registered attorney(s) of record that the document has been filed.
`
`I hereby certify that on December 1, 2023, the attached document was electronically
`
`mailed to the following person(s):
`
`Jeremy A. Tigan
`Cindy Cucuzzella
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`1201 N. Market Street
`Wilmington, DE 19801
`jtigan@morrisnichols.com
`ccucuzzella@morrisnichols.com
`Attorneys for Motif FoodWorks, Inc.
`
`Stephen Q. Wood
`Trevor J. Quist
`Derek Huish
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`2755 E. Cottonwood Parkway, Suite 430
`Salt Lake City, UT 84121
`stephenwood@quinnemanuel.com
`trevorquist@quinnemanuel.com
`derekhuish@quinnemanuel.com
`qemotif@quinnemanuel.com
`Attorneys for Motif FoodWorks, Inc.
`
`Sandy Shen
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`1300 I Street, NW Suite 900
`Washington, D.C. 10005
`sandychen@quinnemanuel.com
`Attorneys for Motif FoodWorks, Inc.
`
`Joseph M. Paunovich
`Ryan Landes
`Sandra L. Haberny
`Sarah Cork
`Patrick T. Schmidt
`Razmig Messerian
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017
`joepaunovich@quinnemanuel.com
`ryanlandes@quinnemanuel.com
`sandrahaberny@quinnemanuel.com
`sarahcork@quinnemanuel.com
`patrickschmidt@quinnemanuel.com
`razmesserian@quinnemanuel.com
`qemotif@quinnemanuel.com
`Attorneys for Motif FoodWorks, Inc.
`
`

`

`Case 1:22-cv-00311-WCB Document 325 Filed 12/29/23 Page 18 of 18 PageID #: 19094
`
`Alexandra M. Joyce
`Daniel M. Silver
`MCCARTER & ENGLISH, LLP
`Renaissance Centre
`405 N. King Street, 8th Floor
`Wilmington, DE 19801
`ajoyce@mccarter.com
`dsilver@mccarter.com
`Attorneys for Ginkgo Bioworks, Inc.
`
`Aaron D. Bray
`MORRISON & FOERSTER, LLP
`755 Page Mill Rd
`Palo Alto, CA 94304
`abray@mofo.com
`Ginkgo-mofo-service@mofo.com
`Attorneys for Ginkgo Bioworks, Inc.
`
`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor,
`New York, New York 10010
`geoffkirsner@quinnemanuel.com
`Attorneys for Motif FoodWorks, Inc.
`
`Adam R. Brausa
`Daralyn J. Durie
`Vera Ranieri
`MORRISON & FOERSTER, LLP
`425 Market Street
`San Francisco, CA, 94105-2482
`abrausa@mofo.com
`ddurie@mofo.com
`vranieri@mofo.com
`Ginkgo-mofo-service@mofo.com
`Attorneys for Ginkgo Bioworks, Inc.
`Caleb D. Woods
`MORRISON & FOERSTER, LLP
`2100 L Street, NWSuite 900
`Washington, D.C., 20037
`calebwoods@mofo.com
`Ginkgo-mofo-service@mofo.com
`Attorneys for Ginkgo Bioworks, Inc.
`
`By: /s/ David E. Moore
`
`David E. Moore (#3983)
`Bindu A. Palapura (#5370)
`Andrew M. Moshos (#6685)
`POTTER ANDERSON & CORROON LLP
`Tel: (302) 984-6000
`dmoore@potteranderson.com
`bpalapura@potteranderson.com
`amoshos@potteranderson.com
`
`2
`
`