throbber
Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 1 of 13 PageID #: 28153
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 22-311-WCB
`
`JURY TRIAL DEMANDED
`
`))))))))))
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
`
`PLAINTIFF IMPOSSIBLE FOODS INC.’S
`MOTION FOR REARGUMENT AND/OR RECONSIDERATION
`
`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
`Joyce K. Yao
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Tel: (415) 947-2000
`
`Matthew R. Reed
`Jeffrey Nall
`Quincy Rush
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
`
`Lori P. Westin
`Natalie J. Morgan
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Tel: (858) 350-2300
`
`PUBLIC VERSION
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 2 of 13 PageID #: 28154
`
`Michael T. Rosato
`Sonja R. Gerrard
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Tel: (206) 883-2529
`
`Matthew Macdonald
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`Tel: (323) 210-2953
`
`Dated: May 29, 2024
`Public Version Dated: June 5, 2024
` 11534363 / 20200.00002
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 3 of 13 PageID #: 28155
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 22-311-WCB
`
`JURY TRIAL DEMANDED
`
`))))))))))
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
`
`PLAINTIFF IMPOSSIBLE FOODS INC.’S
`MOTION FOR REARGUMENT AND/OR RECONSIDERATION
`
`Impossible Foods, Inc. (“Impossible” and/or “Movant”) respectfully moves the Court
`
`pursuant to District of Delaware Local Rule 7.1.5 for reargument of the Court’s May 15, 2024
`
`Order denying Impossible leave to amend its Final Infringement Contentions to include as an
`
`accused product Motif FoodWorks, Inc.’s (“Motif’s”) Hemami product. D.I. 506. Impossible
`
`respectfully requests that this Court reconsider certain factual findings within the analysis that the
`
`Court relied on in issuing its denial, which resulted in errors of fact.
`
`While Delaware’s Civil Local Rules state that “[m]otions for reargument shall be sparingly
`
`granted” (D. Del. LR 7.1.5(a)), the circumstances of the present motion warrant such an outcome.
`
`In particular, the circumstances of the present motion reveal a need to correct clear errors of fact
`
`to prevent manifest injustice and reargument is appropriate because it appears the Court
`
`misapprehended relevant facts resulting in the denial of Impossible’s leave to amend its Final
`
`Infringement Contentions.
`
`I.
`
`INTRODUCTION
`
`On March 21, 2024, Impossible filed a motion for leave to amend its Final Infringement
`
`Contentions with respect to accusing Motif’s Hemami product of infringement of claim 3 of U.S.
`
`PUBLIC VERSION
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 4 of 13 PageID #: 28156
`
`Patent No. 9,943,096 (the “’096 patent”). D.I. 410, 411. On May 15, 2024, the Court denied
`
`Impossible’s motion. D.I. 506. Impossible timely filed its motion for leave to amend during fact
`
`discovery in this action and expert discovery is currently ongoing: opening expert reports are due
`
`on May 31, 2024. D.I. 315. Trial is scheduled to begin on January 13, 2025 with respect to the
`
`Food Product Patents. D.I. 37, ¶ 18.
`
`By this motion, Impossible seeks to have the Court correct or clarify six manifest errors of
`
`fact or factual findings within the Court’s Order. These facts or findings include: two factual
`
`misapprehensions regarding the
`
`; three factual misapprehensions
`
`regarding the
`
`claim construction.
`
`; and one factual misapprehension that implicates
`
`On June 16, 2023, Motif produced a sample of its Hemami product by shipping it to
`
`, located in
`
`”).1
`
`
`
` had been designated by Impossible as the holding facility for product samples for chain
`
`of custody purposes. Impossible directed
`
` to ship samples of Hemami to
`
`Impossible’s expert’s laboratory on November 28, 2023, so that the expert could conduct testing
`
` Impossible’s expert conducted testing and first sent test results to
`
`counsel for Impossible in January 2024, which results indicated
`
`
`
` D.I. 480 at 33:12-22. These results differed from Impossible’s then-understanding of
`
`Hemami and it directed Impossible’s expert to repeat the tests, both to validate the results from the
`
`first set of tests and also to compare the results to the data set forth in the specification of the ’096
`
`Patent. Id.
`
`1 Impossible provides this background information because the Court appears to have
`misapprehended the timing of testing of Hemami. D.I. 506 at 2; cf. D.I. 411 at 6-7.
`
`2
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 5 of 13 PageID #: 28157
`
`On March 11, 2024, Impossible received the second set of testing results, definitively
`
`confirming that Hemami
`
`showing
`
`. D.I. 411 at 1. The test results
`
` Nutritional Facts label provided by Motif to FDA
`
`and produced by Motif to Impossible in discovery. Id. at 11-12. Also on March 11, 2024, Motif
`
`witness Lauren Sallade testified during deposition that
`
` Id. at 7, D.I. 411-12 at 74:20-75:5.
`
`
`
`
`
`. D.I. 411-13.
`
`II.
`
`LEGAL STANDARD
`
`D. Del. LR 7.1.5(a) provides, inter alia, “a motion for reargument . . . shall be filed within
`
`14 days after the Court issues its opinion or decision.” The purpose of the motion for
`
`reconsideration is to “correct manifest errors of law or fact or to present newly discovered
`
`evidence.” Max’s Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)
`
`(citation omitted). A prior order or judgement may be modified if the movant shows “the need to
`
`correct a clear error of law or fact to prevent manifest injustice.” Id. Reargument may be
`
`appropriate where “the court has patently misunderstood a party, or has made a decision outside
`
`the adversarial issues presented to the court by the parties, or has made an error not of reasoning
`
`but of apprehension.” Ladatech, LLC v. Illumina, Inc., C.A. No. 09-627, 2012 WL 13207778, at
`
`*1 (D. Del. Feb. 14, 2012) (citing Brambles USA, Inc., v. Blocker, 735 F. Supp. 1239, 1241 (D.
`
`Del. 1990). Further, a court should grant a motion for reconsideration if it overlooked certain
`
`evidence or issues which “might reasonably have resulted in a different conclusion.” Elgert v.
`
`Siemens Indus., No. 17-cv-1985, 2019 WL 3976409, at *5 (E.D. Pa. Aug. 22, 2019).
`
`3
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 6 of 13 PageID #: 28158
`
`III.
`
`ARGUMENT
`
`A.
`
`Reconsideration is Necessary to Correct Two Factual Misapprehensions
`
`
`1.
`
`Motif’s documents indicate that
`
` in Hemami because
`
`
`.
`
`The Court’s Order states, “Yeast cells naturally produce proteins and naturally contain
`
`other molecules such as sugars and amino acids,
`
`506 at 1. The Court then found
`
`.” D.I.
`
`
`
` Id. at 3. Impossible respectfully requests that the
`
`Court correct this factual finding as Motif’s documents indicate that
`
`
`
`
`
`
`
`
`
`
`
` D.I. 440-1, Ex. H at MOTIF00315151. Further, on June 26, 2023, 10 days
`
`after Motif produced to Impossible samples of Hemami in discovery, and in response to an
`
`Impossible interrogatory on the subject, Motif provided a Hemami product data sheet which
`
`indicates that Hemami
`
` D.I. 411 at 5; D.I. 411-6. That is, Motif’s Hemami
`
`data sheet lists nutritional data per 100 grams and states that Hemami contains
`
`.2
`
`2 Deposition testimony from a Motif witness indicated that Motif never actually
` D.I. 411 at 17; D.I. 411-23 at 177:13-17, 178:1-15.
`
`4
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 7 of 13 PageID #: 28159
`
`See D.I. 411-2. Motif witness Colleen Cottrell testified during her March deposition that Hemami
`
` D.I. 411 at 4; D.I. 411-4 172:23-
`
`173:22.
`
`For months, Impossible relied on Motif’s data sheets that
`
`
`
` D.I. 411-2. Impossible’s reliance was reasonable, given the
`
`data sheet and Motif’s responses to Impossible’s interrogatory Nos. 16 and 17. D.I. 411 at 5.
`
`Impossible only discovered that Hemami
`
` when it obtained test results in March
`
`2024, and thereafter Impossible promptly moved for leave to amend its Final Infringement
`
`Contentions. Contrary to the Court’s Order finding that Impossible “
`
`” (D.I. 506 at 3),
`
`
`
`
`
`
`
`
`
`
`
`
`
`In addition to the statements in the Court’s Order discussed above, the Order also states
`
`that “
`
`
`
`”—suggesting that Impossible should have doubted (and perhaps tested) Motif’s
`
`representations earlier. Id. Respectfully, Hemami cannot be aptly compared to a steak. Hemami
`
`is a plant-based, ultra-filtered, meat alternative food additive. D.I. 440-1, Ex. H at
`
`MOTIF00315151. It is not itself a final food product and it differs in many ways from a whole
`
`animal steak. For example, Hemami is not made up of whole cells and does not contain many of
`
`the natural components found in steak. As explained supra, Motif subjects the
`
`
`
`
`
`
`
`5
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 8 of 13 PageID #: 28160
`
`Id. Impossible reasonably relied on Motif’s documents and representations that Hemami
`
`
`
`
`
`2.
`
`
`Impossible’s submitted testing reveals
`greater than the amount set forth in the specification of the
`’096 patent.
`
`The Court’s Order states, “Because the court reviewed Impossible’s testing data in camera,
`
`this opinion does not discuss the specifics of what that data revealed. To put it simply, however,
`
`the court is not persuaded that the testing data revealed material new information to Impossible
`
`.” D.I. 506 at 3. Impossible respectfully seeks to
`
`correct this factual finding as Motif had previously represented that Hemami
`
`Notably,
`
`
`
`
`
`Table 13 of the specification of the ’096 patent (which describes a mixture of heme
`
`protein, sugar and sulfur-containing amino acids). See D.I. 129-2, Ex. 1 at 32:49-33:4, Table 13.
`
`The concentrations set forth in Table 13 of the ’096 patent are
`
`
`
`
`
`In short, Impossible first learned new information about the
`
`
`
`
`
`
`
`
`
`only after it conducted its own testing of the samples produced by Motif. The testing results
`
`obtained by Impossible on March 11, 2024
`
`
`
`
`
`Impossible respectfully requests that the Court reconsider its determination that Impossible’s
`
`testing data did not reveal material new information to Impossible
`
`
`
`
`
`6
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 9 of 13 PageID #: 28161
`
`B.
`
`Reconsideration is Necessary to Correct Three Factual Misapprehensions
`regarding
`
`
`1.
`
`
`
`The Court’s Order implies that
`
` D.I. 506 at 2-4. Impossible first respectfully seeks to correct the notion that the
`
`
`
`
`
`
`
`
`
`
`
`
` Impossible’s own testing, submitted for
`
`in camera review, shows there are
`
`Impossible previously explained, it conducted its own testing for—
`
`
`
`. As
`
`
`
`D.I. 463 at 7. Respectfully, Impossible requests that the Court reconsider its Order to the extent it
`
`implies that
`
`2.
`
`The Court’s Order finds that
`
`.3
`
`
`
`
`
`
`
`
`
`
`
`
`
`3 Moreover, Impossible notes that during the hearing on its motion for leave to amend its Final
`Infringement Contentions, the Court raised sua sponte that Hemami
` (D.I. 480 at 40:10-41:17), and the Court’s Order stated that
`
`
`” D.I. 506 at 3. Motif made no argument in its Opposition Brief about
` and there is no support for the Court’s statement
`
`
`in this regard. D.I. 440 at 14-16. Indeed,
`
` This is a fact that will be established during the course of expert
`disclosures in the case and Impossible respectfully requests that the Court reconsider its Order to
`the extent it suggests that Hemami
`
`
`7
`
`
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 10 of 13 PageID #: 28162
`
`.” D.I. 506 at 4. Impossible respectfully seeks to correct this factual finding,
`
`as Impossible’s own testing
`
`
`
`. See supra. The report of Impossible’s independent testing, submitted in camera, describes
`
`the testing protocol, which notably
`
` Impossible respectfully
`
`requests that the Court reconsider its determination that
`
`
`
`3.
`
`.
`
`The Court’s Order accepts Motif’s representation that
`
`
`
`
`
`
`
`
`
` D.I. 506 at 2. The only support to which Motif points for this proposition is the
`
`Collins Declaration (D.I. 440 at 14; D.I. 442), but that declaration does not state that Dr. Collins
`
`confirmed
`
`. Rather, in her declaration, Dr. Collins states as follows:
`
`D.I. 442, ¶ 6.
`
`The fact that Dr. Collins did not in fact confirm
`
`
`
`
`
`
`
`
`
`
` is especially troubling given the conflicting testimony
`
`she provided at deposition regarding that topic. At deposition, she flatly contradicted herself on
`
`precisely this point. D.I. 463 at 8, fn. 3. During deposition, Dr. Collins first indicated that she
`
` (D.I. 463-1 at 152:5-153:17,
`
`157:4-158:25, 166:9-20)
`
`id. at 164:2-24, 166:24-168:7, 168:18-23),
`
`
`
`8
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 11 of 13 PageID #: 28163
`
`172:11). Dr. Collins’ inconsistent and contradictory testimony is not credible, as it calls into
`
` (id. at 168:25-
`
`question
`
`at 7.
`
`
`
`
`
` D.I. 463
`
`Impossible respectfully requests that the Court reconsider its determination that the
`
`C.
`
`Motif’s argument that it did not
`
`The Court’s Order appears to take Motif’s assertions that Motif
`
`” (D.I. 440 at 12) to mean that
`
`.
`
`
`
`
`
`
`
`
`
`indicating that it
`
`Court’s Order that “
`
` D.I 506 at 3. Yet, despite Motif’s documents
`
`
`
`
`
` Motif’s documentary evidence that it
`
` The
`
`
`
`” (id.) implicates factual findings that
`
`Defendants may seek to establish in expert reports, and may also impact claim construction,
`
`although the Court’s finding was not based on any expert testimony and did not cite to any support.
`
`Defendants may seek to cite this finding to support non-infringement and/or invalidity
`
`arguments in a manner the Court did not intend. Plaintiff should be given the chance to prove,
`
`with the benefit of expert testimony explaining the relevant thresholds, that Hemami
`
`
`
`—rather than be
`
`9
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 12 of 13 PageID #: 28164
`
`foreclosed from proving it due to the Court’s conclusion regarding
`
`
`
`IV.
`
`CONCLUSION
`
`For the above reasons, Impossible requests that the Court reconsider its order and allow
`
`Movant to amend its Infringement Contentions.
`
`
`
`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
`Joyce K. Yao
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Tel: (415) 947-2000
`
`Matthew R. Reed
`Jeffrey Nall
`Quincy Rush
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Tel: (650) 493-9300
`
`Lori P. Westin
`Natalie J. Morgan
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Tel: (858) 350-2300
`
`Michael T. Rosato
`Sonja R. Gerrard
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104
`Tel: (206) 883-2529
`
`10
`
`

`

`Case 1:22-cv-00311-WCB Document 524 Filed 06/05/24 Page 13 of 13 PageID #: 28165
`
`Matthew Macdonald
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`Tel: (323) 210-2953
`
`Dated: May 29, 2024
`Public Version Dated: June 5, 2024
` 11534363 / 20200.00002
`
`11
`
`

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