Case 1:22-cv-00311-WCB Document 47 Filed 01/05/23 Page 1 of 5 PageID #: 2135
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
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`Plaintiff,
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`v.
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`Defendant.
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`C.A. No. 22-311 (WCB)
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`IMPOSSIBLE FOODS INC.,
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`MOTIF FOODWORKS, INC.,
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`LETTER TO THE HONORABLE WILLIAM C. BRYSON FROM IAN R. LISTON
`REGARDING PROTECTIVE ORDER DISPUTES
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`WILSON SONSINI GOODRICH & ROSATI, P.C.
`Ian R. Liston (#5507)
`Jennifer A. Ward (#6476)
`222 Delaware Avenue, Suite 800
`Wilmington, DE 19801
`(302) 304-7600
`iliston@wsgr.com
`jward@wsgr.com
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`Counsel for Plaintiff Impossible Foods Inc.
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`OF COUNSEL:
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`Wendy L. Devine
`Susannah M. L. Gagnon
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`(415) 947-2000
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`Matthew R. Reed
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`(650) 493-9300
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`Lorelei P. Westin
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El. Camino Real
`San Diego, CA 92130
`(858) 350-2300
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`Dated: January 5, 2023
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`Case 1:22-cv-00311-WCB Document 47 Filed 01/05/23 Page 2 of 5 PageID #: 2136
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`Dear Judge Bryson:
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`Plaintiff Impossible Foods Inc. (“Impossible”) respectfully submits this responsive letter
`regarding the parties’ protective order disputes. The disputes center on Defendant Motif
`FoodWorks, Inc.’s (“Motif”) requests for the Court to impose a patent prosecution bar and for Ms.
`Janet Collins to be designated to receive Highly Confidential Information under the protective
`order. Impossible opposes the imposition of a prosecution bar because Motif has not met its burden
`of demonstrating that one is necessary and based on prejudice to Impossible. Impossible asks the
`Court to adopt the attached version of the parties’ proposed protective order that does not include
`such a bar. See Ex. 1. Further, Impossible requests that the Court reject Ms. Collins as an
`inappropriate designee for the disclosure of Highly Confidential Information.
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`Relevant Factual Background. Only three individuals constitute Impossible’s patent
`legal team: Mekalaradha Murphy, Andrew Chang, and Sophie Yu. Ex. 2 (Murphy Decl.) at ¶¶ 5-
`6. Ms. Murphy is Associate General Counsel, for Impossible and is responsible for overseeing all
`patent litigation matters (such as the present litigation), patent prosecution, and IP-related
`transactions. In her role, Ms. Murphy oversees Mr. Chang and Ms. Yu. Together, these three
`individuals share responsibility for legal activities related to Impossible’s patents, including
`prosecution and litigation. Id. at ¶ 7. Notably, although Ms. Murphy oversees Impossible’s patent
`prosecution activities as part of her overall duties, Mr. Chang is responsible for drafting or
`amending claims. Id. Aside from Ms. Murphy, Mr. Chang, and Ms. Yu, there are no other
`individuals at Impossible who can handle Impossible’s patent litigation matters, including this
`litigation, or patent prosecution activities. Id. at ¶¶ 6-7.
`I.
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`Motif Failed to Demonstrate Good Cause for Imposition of a Prosecution Bar That
`Would Significantly Harm Impossible
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`To obtain any protective-order provision, the requesting party must demonstrate “good
`cause” pursuant to Federal Rule of Civil Procedure 26(c). To justify imposing a patent prosecution
`bar, the proponent “must show that the information designated to trigger the bar, the scope of
`activities prohibited by the bar, the duration of the bar, and the subject matter covered by the bar
`reasonably reflect the risk presented by the disclosure of proprietary competitive information.” In
`re Deutsche Bank Trust Co. Ams., 605 F.3d 1373, 1381 (Fed. Cir. 2010). Should the court
`determine that such a risk exists, the court “must then ‘balance’ that risk against the potential harm
`from restrictions imposed on that party’s right to have the benefit of counsel of its choice.” Id. at
`1380. Here, any risk of inadvertent disclosure of Motif’s information does not outweigh the
`significant harm that Impossible will face if a patent prosecution bar is imposed.
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`To be clear, the parties agree that the opposing party’s confidential information may not be
`used for any other purpose than this litigation—that use restriction is set forth in ¶ 4.2 of the draft
`protective order. Ex. 1 at ¶ 4.2. That provision prohibits use of the opposing party’s confidential
`information for purposes of patent prosecution, rendering a prosecution bar unnecessary. See
`Anova Applied Electronics, Inc. v. Precision Appliance Technology, Inc., 2022 WL 17338875, at
`*4 (W.D. Wash. Nov. 30, 2022) (“[T]he provisions of the protective order, which allow for the use
`of confidential material only in connection with prosecuting, defending, or settling this litigation,
`should serve to prevent the unacceptable risk or opportunity for the inadvertent disclosure of
`confidential information.” (citation omitted)).
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`Case 1:22-cv-00311-WCB Document 47 Filed 01/05/23 Page 3 of 5 PageID #: 2137
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`Motif’s contention that “an unacceptable risk” exists with respect to Motif’s confidential
`information, D.I. 46 at 2, is unsupported speculation, which is insufficient to justify the imposition
`of a prosecution bar. Fontem Ventures B.V. v. R.J. Reynolds Vapor Co., 2017 WL 2266868, at *3
`(M.D.N.C. May 23, 2017) (“[B]road allegations of speculative harm are not sufficient to establish
`good cause.” (citation omitted)). Indeed, Motif fails to provide any specific information about
`how Impossible’s prosecution activities “relate to the confidential information that would trigger
`the proposed prosecution bar” or “what technical information is at risk for misappropriation[.]”
`Id. at *4; see also id. (“[G]eneric risk alone is not enough to justify a patent prosecution bar[.]”).
`Motif’s “generalized assertions that the [p]arties are competitors” are also insufficient to justify
`imposition of a bar. Regal Beloit Am., Inc. v. Broad Ocean Motor LLC, 2017 WL 35702, at *3
`(E.D. Mo. Jan. 4, 2017).1 Thus, Motif has failed to meet its burden to justify imposition of a
`prosecution bar.
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`Moreover, such a bar poses significant harm to Impossible that outweighs the risk of any
`inadvertent disclosure of Motif’s information. Deutsche Bank, 605 F.3d at 1380 (“Even if a district
`court is satisfied that such a risk exists, the district court must balance this risk against the potential
`harm to the opposing party. . . .”). Impossible does not dispute that its proposed in-house
`personnel, Ms. Murphy, Mr. Chang, and Ms. Yu, are involved in patent prosecution. Ex. 2 at ¶¶
`5-7. But imposition of a patent prosecution bar would require Impossible to choose between
`protecting its innovative technology and prosecuting this litigation, a decision that Motif does not
`have to make as it is not actively involved in patent prosecution related to the subject matter of
`this litigation. MPG Ingredients, Inc. v. Mars, Inc., 245 F.R.D. 497, 502 (D. Kan. 2007)
`(“Prohibiting MGPI employees from having access to discovery materials in this case could impair
`its ability to prosecute its claims against defendants[.]”). Given the size of Impossible’s patent
`legal team, it is not possible to have Ms. Murphy, Mr. Chang, or Ms. Yu delegate their involvement
`in Impossible’s patent prosecution activities or in overseeing this litigation; there is no one to
`whom these individuals could reasonably delegate, nor is there anyone who could effectively
`replace them in these roles. Ex. 2 at ¶¶ 6-7. Moreover, a patent prosecution bar will restrict outside
`counsel from meaningfully consulting with Impossible on anything regarding this case.
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`Motif’s arguments regarding the scope of the prosecution bar further highlight the
`asymmetrical harm that Impossible faces should a prosecution bar be imposed. Motif requests that
`its chosen counsel be allowed to litigate both the district court matter and any challenge Motif
`brings at the Patent Office without any barrier yet insists on the imposition of a bar that, regardless
`of scope, will restrict Impossible’s choice of counsel. Not only will Impossible’s in-house
`personnel responsible for this litigation be barred from accessing confidential information, but
`Motif’s arguments also suggest that a wall should be installed between Impossible’s IPR and
`district court outside lawyers. This would limit Impossible’s choice of counsel significantly and
`impede zealous representation of Impossible’s interests. Given Motif’s failure to identify any
`specific risk, such a prosecution bar should be rejected.
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`1 For example, Motif asks that a prosecution bar be triggered by access to “commercially sensitive
`financial information” (¶ 2.2(1)) but does not even attempt to explain how such information poses
`any risk related to patent prosecution, let alone a risk that is not accounted for by the use restriction
`of ¶ 4.2. Likewise, Motif does not provide any justification for the two-year time frame it requests.
`2
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`Case 1:22-cv-00311-WCB Document 47 Filed 01/05/23 Page 4 of 5 PageID #: 2138
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`Therefore, the significant harm to Impossible outweighs any speculative risk to Motif’s
`information, particularly given the parties’ agreement that confidential information may only be
`used for this litigation.
`II.
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`Janet Collins Should Be Rejected As a Designee Under the Protective Order
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`Motif’s letter confirms that Motif has no issue with Paragraph 6.2 of the parties’ proposed
`protective order. Rather, the parties’ sole disagreement is whether Ms. Janet Collins is an
`appropriate designee under Paragraph 6.2. Impossible respectfully submits that she is not.
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`Motif admits that Ms. Collins, as Vice President, Regulatory, Government and Industry
`Affairs for Motif, oversees and directs Motif’s regulatory activities. D.I. 46, Ex. E at ¶¶ 1-3, 7.
`As such, Ms. Collins has been directly involved in and responsible for Motif’s FDA submissions
`that reflect copying of Impossible’s proprietary technology. E.g., D.I. 22-2 at 446 (Ms. Collins’
`signature on Motif’s GRAS submission). Notably, Motif’s FDA submissions do not merely
`reference public information as Motif contends. Rather, Motif’s FDA submission regarding its
`infringing heme states that Motif constructed its infringing transgenic yeast using Impossible’s
`proprietary yeast as a map. Id. at 464 (“The production strain used in the production of Motif
`FoodWorks’ myoglobin . . . was constructed in a similar manner as described in GRN 737
`(Impossible Foods, Inc., 2017; U.9. FDA, 2018a).”); id. at 454 (“Process parameters including pH,
`temperature, agitation, dissolved oxygen, methanol concentration, and glycerol concentration are
`routinely monitored through fermentation following methods consistent with GRN 737
`(Impossible Foods, Inc., 2017; U.S. FDA, 2018a).”).
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`Indeed, Motif’s regulatory submissions indicate a connection between Motif’s business
`strategy and Impossible’s proprietary technology, demonstrating that Impossible faces a real risk,
`specific to this litigation, of improper use of Impossible’s proprietary information. If Ms. Collins
`is granted access to Impossible’s highly confidential information, there is a significant risk that
`Motif, and Ms. Collins specifically, will misuse that information in furtherance of this commercial
`strategy. By contrast, Motif has not—and cannot—point to anything that indicates Impossible
`would engage in such misuse in patent prosecution. Even if Impossible were to engage in such
`misuse, patent prosecution is a public activity, meaning that Motif would be alerted to any misuse.
`The same cannot be said for Impossible and the potential misuse of its information in regulatory
`activities given their confidential nature.
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`Moreover, Motif advances inconsistent positions in its letter, arguing that a prosecution bar
`is necessary since “it is very difficult for the human mind to compartmentalize and selectively
`suppress information once learned.” D.I. 46 at 2. By that same logic, however, there is significant
`risk that Ms. Collins will make use of Impossible’s sensitive, confidential information in
`furtherance of at least Motif’s regulatory strategies, even if Ms. Collins does not intend to do so.
`This is particularly so in light of Ms. Collins’ responsibilities at Motif and Motif’s documented
`copying of Impossible’s proprietary technology. Unlike Motif in advancing its proposed
`prosecution bar, Impossible has identified a specific risk to the Impossible’s information in this
`litigation. Therefore, Ms. Collins should be rejected as an inappropriate designee under the
`protective order in this litigation.
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`Case 1:22-cv-00311-WCB Document 47 Filed 01/05/23 Page 5 of 5 PageID #: 2139
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`Respectfully,
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`/s/ Ian R. Liston
`Ian R. Liston (#5507)
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`Clerk of Court (via Hand Delivery)
`All Counsel of Record (via CM/ECF)
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`cc:
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