Case 1:22-cv-00311-WCB Document 48 Filed 01/06/23 Page 1 of 3 PageID #: 2168
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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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`)))))))))
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`IMPOSSIBLE FOODS INC.,
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`Plaintiff,
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`v.
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`MOTIF FOODWORKS, INC.,
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`Defendant.
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`REPLY LETTER TO THE HONORABLE WILLIAM C. BRYSON
`FROM JEREMY A. TIGAN REGARDING PROTECTIVE ORDER DISPUTES
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jeremy A. Tigan (#5239)
`Lucinda C. Cucuzzella (#3491)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jtigan@morrisnichols.com
`ccucuzzella@morrisnichols.com
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`Attorneys for Defendant Motif FoodWorks, Inc.
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`OF COUNSEL:
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`Joseph M. Paunovich
`Sandra L. Haberny
`Ryan Landes
`Sarah Cork
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`865 South Figueroa Street
`10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Q. Wood
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`January 6, 2023
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`

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`Case 1:22-cv-00311-WCB Document 48 Filed 01/06/23 Page 2 of 3 PageID #: 2169
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`Dear Judge Bryson:
`Motif’s request for a prosecution bar limited to involvement in patent and claim
`drafting/amending for a limited time is not unprecedented, unnecessary or unfair. Such bars are
`routine. Brit. Telecomms. PLC v. IAC/InterActiveCorp, 330 F.R.D. 387, 396 (D. Del. 2019)
`(collecting cases); PhishMe, Inc. v. Wombat Sec. Techs., Inc., No. 16-403, 2017 WL 4138961, at
`*8 (D. Del. Sept. 18, 2017) (noting a higher risk of disclosure or misuse among direct competitors).
`Without a bar, there is a clear and articulatable risk that either sides’ confidential information could
`be used for improper purposes, including but not limited to in the pending post-grant proceedings.
`See D.I. 46 at 1. Moreover, Motif is a small, direct competitor of Impossible, and Impossible is
`currently accusing essentially every aspect of Motif’s business, from its production systems to all
`finished products. The confidential information Motif will be required to disclose about virtually
`every aspect of its business does not just pose a risk of harm if misused, whether inadvertently or
`intentionally: misuse would threaten Motif’s very existence.
`Impossible’s suggestion that the proposed prosecution bar is asymmetric is baseless. On its
`face, the proposed bar applies equally to both sides. Moreover, Motif is an innovator in the meat-
`alternative industry and currently has more than a dozen patent applications pending and more
`anticipated. Motif is impacted in the same manner by the bar as Impossible. The bar would apply
`equally to any of its in-house personnel or outside counsel that receives Impossible’s confidential
`information. It is simply not true that Impossible will face a different burden than Motif.
`Nor will Impossible suffer any undue impact to its never-before-disclosed team of in-house
`personnel managing this litigation, who it admits are intimately involved in its prosecution
`activities. Impossible has provided no reason to believe these personnel will be able to
`“compartmentalize and selectively suppress” Motif’s confidential information when performing
`prosecution duties. See Deutsche Bank Trust Co. Ams., 605 F.3d 1373, 1378-79 (Fed. Cir. 2010).
`And its claim that denying access to them “will restrict outside counsel from meaningfully
`consulting with [it] on anything regarding this case” is hollow. Impossible provides no compelling
`reason why one or more of three personnel overseeing this litigation and its prosecution activities
`could not temporarily focus on one activity and not both. Ironically, Impossible simultaneously
`asks the Court to obstruct Motif’s only employee capable of directing this litigation—who has
`agreed to have no involvement in patent prosecution and has no competitive decision-making—
`from having access to the same type of information.
`To that point, Ms. Collins’ signing of Motif’s prior GRAS notices does not show any risk
`that she will disclose confidential information. FDA GRAS notices must demonstrate “[g]eneral
`recognition of safety” of food substances. 21 C.F.R. 170.30(b). The FDA looks to data and
`information that are “publicly available” to make this determination, 81 Fed. Reg. 54960, 54973
`(Aug. 17, 2016), such as other publicly available GRAS notices. See 21 C.F.R. 170.275.
`Impossible’s GRAS notice, which is public, is not the only GRAS notice or other source cited or
`referenced by Motif’s notice. See D.I. 22-2 at 465, 471-76. And the purpose of including such
`references was simply to explain why the FDA should consider the proteins Motif produced with
`pichia pastoris—a technique long-known in the industry—a safe food ingredient, just as it had for
`other proteins produced the same way, based upon publicly available information. This is common
`practice before the FDA. D.I. 46, Ex. E ¶7. Thus, stating that Motif’s yeast strains “were
`constructed in a similar manner” as those disclosed by Impossible’s GRAS notice for this purpose
`was not, nor can it credibly be considered, some type of admission to copying. D.I. 22-2 at 464.
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`Case 1:22-cv-00311-WCB Document 48 Filed 01/06/23 Page 3 of 3 PageID #: 2170
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`Respectfully,
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`/s/ Jeremy A. Tigan
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`Jeremy A. Tigan (#5239)
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`cc:
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`All Counsel of Record (via CM/ECF and email)
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