Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 1 of 22 PageID #: 29769
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 22-311 (WCB)
`
`REDACTED - PUBLIC VERSION
`
`) ) ) ) ) ) )
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`
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC. and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
`
`DEFENDANT MOTIF FOODWORKS, INC.’S OPPOSITION TO IMPOSSIBLE FOODS
`INC.’S MOTION FOR REARGUMENT AND/OR RECONSIDERATION
`
`OF COUNSEL:
`
`Joseph M. Paunovich
`Ryan Landes
`Sandra L. Haberny
`Sarah Cork
`Razmig Messerian
`Patrick T. Schmidt
`Scott L. Watson
`Claire Hausman
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Q. Wood
`Trevor J. Quist
`Derek Huish
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`2755 E. Cottonwood Parkway, Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`Geoffrey A. Kirsner
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`(212) 849-7000
`
`June 12, 2024
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jeremy A. Tigan (#5239)
`Cameron P. Clark (#6647)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jtigan@morrisnichols.com
`cclark@morrisnichols.com
`
`Sandy Shen
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`1300 I Street, NW, Suite 900
`Washington, D.C. 20005
`(202) 538-8000
`
`Abigail E. Clark
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`2601 South Bayshore Drive, Suite 1550
`Miami, FL 33133
`(305) 402-4880
`
`Evan Pearson
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`300 West 6th Street, Suite 2010
`Austin, TX 78701
`(737) 667-6100
`
`Attorneys for Defendant Motif FoodWorks, Inc.
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 2 of 22 PageID #: 29770
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`INTRODUCTION ...............................................................................................................1
`
`ARGUMENT .......................................................................................................................2
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Legal Standard .........................................................................................................2
`
`Impossible’s Motion Fails to Meet the Standards for Reargument or
`Reconsideration........................................................................................................3
`
`Because Impossible Failed to Show Diligence in Seeking to Amend Its
`Contentions, Reconsideration Is Inappropriate ........................................................8
`
`Impossible’s Motion for Reconsideration Fails Because Impossible Knew
`Hemami May Contain Contaminants and Did Not Diligently Investigate ............11
`
`Impossible’s Position Hides an Improper Claim Construction Argument ............14
`
`III.
`
`CONCLUSION ..................................................................................................................14
`
`i
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`

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`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 3 of 22 PageID #: 29771
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Amgen Inc. v. Sanofi,
`227 F. Supp. 3d 333 (D. Del. 2017) ...............................................................................3, 5, 7, 8
`
`Brit. Telecomms. PLC v. IAC/InterActiveCorp,
`No. 18-366-WCB, 2020 WL 3047989 (D. Del. June 8, 2020) ..............................................8, 9
`
`Hum. Genome Scis., Inc. v. Amgen, Inc.,
`No. 07-780-SLR, 2008 WL 11515904 (D. Del. Aug. 21, 2008) ...............................2, 3, 4, 5, 7
`
`Live Face on Web, LLC v. Rockford Map Gallery, LLC,
`No. 17-539, 2020 WL 13718835 (D. Del. Dec. 11, 2020) ....................................................8, 9
`
`Sentient Sensors, LLC v. Cypress Semiconductor Corp.,
`No. 19-1868 (MN), 2021 WL 1966406 (D. Del. May 17, 2021) ............................2, 3, 4, 5, 14
`
`TQ Delta, LLC v. Adtran, Inc.,
`No. 14-954-RGA, 2019 WL 9406455 (D. Del. Oct. 3, 2019) ...................................................3
`
`Rules
`
`Fed. R. Civ. P. 59(e) ........................................................................................................................3
`
`LR 7.1.5 ...........................................................................................................................................2
`
`ii
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`

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`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 4 of 22 PageID #: 29772
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`I.
`
`INTRODUCTION
`
`Impossible’s Motion
`
`for Reargument
`
`and/or Reconsideration
`
`(“Motion
`
`for
`
`Reconsideration,” D.I. 516) has been rendered moot by the Patent Trial and Appeal Board’s
`
`decision on June 12, 2024 finding all challenged claims of Impossible’s ’096 Patent unpatentable.
`
`See Ex. 1. Regardless, the motion should be denied as it simply repeats the same arguments and
`
`raises new ones that Impossible could have made in its original motion to amend its infringement
`
`contentions (“Motion to Amend,” D.I. 411).
`
`Impossible’s Motion to Amend was properly denied because it amply illustrated that
`
`Impossible failed to act with diligence and therefore lacked “good cause” to support an eleventh-
`
`hour amendment to its infringement contentions. D.I. 506. Impossible’s Motion for
`
`Reconsideration does not identify any actual misapprehension of fact or error of law regarding
`
`Impossible’s failures, much less mitigate the prejudice to Motif if the amendment were allowed.
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`Ignoring these deficiencies, Impossible’s Motion for Reconsideration focuses on supposed
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`misapprehensions, including of the extent of filtration of Hemami in Motif’s production system.
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`However, Impossible has known since before this lawsuit was filed that the filtration of heme-
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`protein from the yeast cells used to produce it does not lead to pure heme-protein in Hemami.
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`Indeed, this information is plainly spelled out in Motif’s GRAS Notice submission to the FDA—
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`the same submission that Impossible attached to its Complaint when it filed this case—that
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`unintended, trace byproducts may remain after filtration. D.I. 1, Ex. 2. Impossible presumably
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`did not raise this fact in its Motion to Amend because it only further highlights its lack of good
`
`cause to amend at this late stage.
`
`Impossible’s Motion for Reconsideration is also a thinly-disguised and inappropriate
`
`attempt to reargue the Court’s claim construction ruling. Indeed, the motion appears less
`
`concerned about whether the Court actually reconsiders allowing Impossible to accuse Hemami of
`
`
`
`1
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`

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`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 5 of 22 PageID #: 29773
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`direct infringement and instead asks the Court to modify its basis for denial so that it does not
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`“implicate[] factual findings that Defendants may seek to establish in expert reports[.]” D.I. 516
`
`at 9. This is neither a basis for reconsideration nor an appropriate vehicle to engage in further
`
`claim construction. Sentient Sensors, LLC v. Cypress Semiconductor Corp., No. 19-1868 (MN),
`
`2021 WL 1966406, at *3 (D. Del. May 17, 2021) (A “request that the Court rethink its [claim
`
`construction] decision is an improper use of a motion for reconsideration or reargument.”).
`
`Even if the Court were to consider Impossible’s veiled claim construction argument, a
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`contrary ruling here would be improper not least because a claim construction dispute has not been
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`squarely presented or adequately briefed to the Court on this record. Impossible’s positions are
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`also based on testing that Impossible will not allow Motif to see or defend against. For all these
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`reasons, the Motion for Reconsideration should be denied.
`
`II.
`
`ARGUMENT
`
`A.
`
`Legal Standard
`
`Under the Local Rules, motions for reargument “should be sparingly granted.” D. Del. LR
`
`7.1.5; Hum. Genome Scis., Inc. v. Amgen, Inc., No. 07-780-SLR, 2008 WL 11515904, at *1 (D.
`
`Del. Aug. 21, 2008) (“Motions for reconsideration, as a general rule, are granted sparingly and
`
`only in limited circumstances.”).
`
`“Motions for reargument are granted only when the Court has patently misunderstood a
`
`party, made a decision outside the adversarial issues presented by the parties, or made an error not
`
`of reasoning but of apprehension.” Sentient Sensors, 2021 WL 1966406, at *1 (denying motion
`
`for reargument). Similarly, “[r]econsideration may be granted [only] if the movant can show an
`
`intervening change in controlling law, new evidence not available when the court made its
`
`2
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 6 of 22 PageID #: 29774
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`decision, or a need to correct a clear error of law or fact to prevent manifest injustice.”1 Id. Both
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`decisions are “squarely within the discretion of the district court.” Id. However, “[m]otions for
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`reargument or reconsideration should not be granted if the proponent simply rehashes materials
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`and theories already briefed, argued and decided.” Id. (internal quotation marks omitted).
`
`B.
`
`Impossible’s Motion Fails to Meet the Standards for Reargument or
`Reconsideration
`
`Impossible’s Motion for Reconsideration is based only on the slimmest of premises—that
`
`“it appears the Court misapprehended relevant facts” when it denied the Motion to Amend. D.I.
`
`516 at 1. Impossible has not identified any change in controlling law or new evidence to warrant
`
`reconsideration; nor has it shown that the Court patently misunderstood a party or made a decision
`
`outside the issues presented in briefing. E.g., TQ Delta, LLC v. Adtran, Inc., No. 14-954-RGA,
`
`2019 WL 9406455, at *2 (D. Del. Oct. 3, 2019) (denying reconsideration when a party “did not
`
`state proper grounds for reconsideration” where it failed to show “an intervening change in
`
`controlling law or that new evidence has become available since the [original order] which would
`
`warrant reconsideration.”); Sentient Sensors, 2021 WL 1966406, at *1; Amgen, 227 F. Supp. at
`
`349; Hum. Genome Scis., 2008 WL 11515904, at *1.
`
`Each of Impossible’s arguments about “misapprehensions” are incorrect. First, the Court
`
`has not misapprehended any fact, including with respect to Hemami filtration (infra Section II.D).
`
`Second, as discussed in greater detail below, the Motion merely rehashes arguments Impossible
`
`1 Indeed, a “motion for reconsideration is the ‘functional equivalent’ of a motion to alter
`or amend judgment under Federal Rule of Civil Procedure 59(e)”—a standard that is “difficult to
`meet.” Amgen Inc. v. Sanofi, 227 F. Supp. 3d 333, 349 (D. Del. 2017) (noting that a Rule 59(e)
`motion “that advances the same arguments already thought through and rejected by the court—
`rightly or wrongly—should be denied”). In this District, a court may alter or amend its judgment
`“only if the movant demonstrates one of the following: (1) a change in the controlling law; (2) a
`need to correct a clear error of law or fact or to prevent manifest injustice; or (3) availability of
`new evidence not available when the judgment was granted.” Id.
`
`3
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 7 of 22 PageID #: 29775
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`already briefed and raises new arguments—neither of which are proper to entertain on a motion
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`for reconsideration. Third, Impossible does not even attempt to show how any “manifest injustice”
`
`would result to Impossible if its Motion to Amend is not granted. Impossible has had nearly a year
`
`to test Motif’s Hemami product, and more than a year to study Motif’s documents and depose
`
`Motif’s witnesses. D.I. 440 at 4-5 (noting that “documents concerning Hemami’s ingredients and
`
`manufacture” were produced in March 2023 and Impossible received Hemami samples on June
`
`16, 2023). To the contrary, it is Motif that will be greatly prejudiced if Impossible is allowed to
`
`amend its contentions. D.I. 440 at 19-20.
`
`1.
`
`It Is Improper for Impossible to Rehash Arguments that It Previously
`Raised in Its Motion to Amend
`
`Motions for reargument or reconsideration should not be used to rehash previously-briefed
`
`arguments in an effort to persuade the Court to rethink its decision. Sentient Sensors, 2021 WL
`
`1966406, at *1; Hum. Genome Scis., 2008 WL 11515904, at *1 (denying motion when, “[d]espite
`
`the way that plaintiff couches its motion for reconsideration, in reality plaintiff simply disagrees
`
`with my decision and the analysis leading to that decision”). The Motion for Reconsideration is
`
`replete with arguments that Impossible already raised in its Motion to Amend. Impossible should
`
`not be rewarded for rearguing them here.
`
`First, Impossible previously asked for leave to amend its claims and accuse Hemami on
`
`the grounds that Impossible did not expect
`
` to be present in Hemami—
`
`—on the basis of the documents that Motif produced in this case. See D.I.
`
`516 at 4-6. The Court considered this argument in denying Impossible’s Motion to Amend. See
`
`4
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 8 of 22 PageID #: 29776
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`D.I. 411 (Motion to Amend) at 42, 63 (citations omitted), 114, 145; D.I. 463 (Impossible’s Reply)
`
`at 36; D.I. 480 (Apr. 17, 2024 Hearing Tr.) at 45:14-47:13.7 Indeed, Impossible “appears to argue
`
`that the Court made an error of reasoning, not of apprehension” here, but that is “not proper
`
`grounds for the requested relief.” Sentient Sensors, 2021 WL 1966406, at *3. Impossible’s rehash
`
`of this same argument in the Motion (D.I. 516 at 5) should therefore be unavailing. E.g., Amgen,
`
`227 F. Supp. 3d at 350 (motion denied because Court “did not arrive at any of these decisions
`
`lightly; indeed, it considered fulsome arguments and briefing.”); Hum. Genome Scis., 2008 WL
`
`11515904, at *1 (similar).
`
`Second, Impossible’s own testing of Hemami does not warrant reconsideration. D.I. 516
`
`at 6-9. Impossible argued extensively that it should be allowed to amend its infringement
`
`2 “Because the core technical documents produced by Motif did
`Impossible did not accuse Hemami of direct
`
`infringement.”
`
`3
`
` Relying on these documents, on September 1, 2023, Impossible served its
`Final Infringement Contentions regarding the same 22 Motif products identified in its Initial
`Infringement Contentions—including those that were later revealed to be fictional ‘prototypes’—
`but did not include Hemami.”
`
`4 “Impossible relied in good faith on Motif’s representations in identifying documents
`related to the composition and testing of Hemami, namely that such documents indicated the
`.”
`
`5 “In reliance on documents produced and discovery responses served by Motif and
`otherwise lacking the necessary information previously to assert direct infringement with respect
`to Motif’s Hemami product, Impossible did not previously assert direct infringement of the ʼ096
`patent by Hemami.”
`
`6 “Motif’s product specification for Hemami states that it
`, thus Impossible had a right to reasonably rely on that representation and not accuse Hemami
`of infringing the ’096 patent.”
`
`7 MS. HANSON: “… The fact of the matter is Impossible could not previously accuse
`Hemami of direct infringement because we just did not have evidence that Hemami directly
`infringed. And in fact,
` and we didn't
`have any proof that Hemami
` and, therefore, both of these were necessary
`components and limitations of the asserted Claim 3 of the ’096 patent.”
`
`5
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 9 of 22 PageID #: 29777
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`contentions based on Impossible’s secret testing of Hemami for the purported presence of
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` (data which remains undisclosed to Motif despite Impossible’s recent service of
`
`expert reports). See D.I. 411 at 18, 79, 11-1210 (citations omitted), 1311, 1812; D.I. 463 at 313, 714;
`
`D.I. 480 at 33:12-34:7.15 Again, the Court has already considered and decided otherwise.
`
`Indeed, the Court has already considered and rejected the proposition that “Impossible’s
`
`own testing did not involve hydrolysis and showed
`
` D.I. 516 at 7-
`
`8. For example, during the April 17 oral argument on this matter, Impossible told the Court that
`
`“the testing shows … that there are
`
` because that testing was obviously
`
`not done on hydrolyzed protein.” D.I. 480 at 36:20-37:25.
`
`8 “In March 11, 2024, Impossible received results of testing performed by Impossible’s
`expert on Motif’s Hemami product that shows Hemami
`.”
`
`9 “Unexpectedly, as it is contrary to every document that Motif has identified in its
`responses to interrogatories, Impossible’s expert
` in Hemami.”
`
`10 “As a matter of diligence, and because Hemami is an ingredient in every single one of
`Motif’s products accused in Impossible’s Final Infringement Contentions, Impossible sent
`Hemami samples for testing in anticipation of upcoming expert discovery. Impossible received
`the final testing results on March 11, 2024. … For the first time in this litigation, Impossible has
`proof that Motif’s Hemami product (
`, and therefore
`infringes asserted claim 3 of the ’096 patent.”
`
`11 “Furthermore, and surprisingly, testing from the expert demonstrates Motif’s Hemami
`product
`.”
`
`12 “ Furthermore, Impossible’s own testing performed by its expert discloses
`in Hemami.”
`
`13 “Regarding sulfur-containing compounds,
`Impossible’s expert’s testing evidence that Hemami
`in the asserted claims.”
`
`14 “Impossible discovered through testing [] both
`
` recited
`
`15 MS. HANSON: “… And because that sample was then used up, there was additional
`samples that were sent, and I believe that happened in early March. And that is where we got the
`samples that were related to I believe it is the
` that is referenced in the papers.
`THE COURT: The
` being the sulfur-related claims. MS. HANSON: That is
`correct, Your Honor. Yes.”
`
`6
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 10 of 22 PageID #: 29778
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`Third, Impossible fails to show any substantive basis for reconsidering Dr. Collins’
`
`testimony. D.I. 516 at 8. Here, the question is whether the
`
` testing method
`
`
`
` involves hydrolyzing (breaking down) Hemami proteins into their
`
`component amino acids. Yet Impossible does not cite any evidence from Dr. Collins—or any
`
`other source—to cast doubt on the fact that the
`
` testing—that is, the
`
`
`
`—does hydrolyze proteins. This argument, too, is a mere rehash of previously-presented
`
`positions, and should be rejected.16
`
`In sum, there is no basis to reconsider the same issues previously presented to the Court.
`
`Amgen, 227 F. Supp. 3d at 349 (“[T]he complexity of the matter mandated that the court draw
`
`lines and stick to them.”); Hum. Genome Scis., 2008 WL 11515904, at *1 (motion denied when,
`
`“acknowledg[ing] that the issues presented by this case are novel and complex, and that there is
`
`room for debate about my conclusions,” the court “rendered the best decision I can based on the
`
`record and arguments presented to me by the parties”).
`
`2.
`
`It Is Improper for Impossible to Raise New Arguments that It Could Have
`Previously Advanced in Its Motion to Amend
`
`Additionally, a motion for reconsideration “may not be used “as a means to argue new facts
`
`or issues that inexcusably were not presented to the court in the matter previously decided.”
`
`Amgen, 227 F. Supp. 3d at 349. Yet Impossible raises two arguments for the first time in its Motion
`
`for Reconsideration. First is an argument regarding a supposedly
`
`
`
`in Hemami that Impossible claims to have discovered through its secret expert-driven testing. D.I.
`
`516 at 6. This is a thinly veiled and improper claim construction argument, as explained below
`
`
`16 In fact, the paragraph citing Dr. Collins’ deposition testimony cites the exact same
`excerpts cited in footnote three of Impossible’s reply brief. Compare D.I. 516 at 8-9 (citing
`excerpts of Collins’ deposition transcript) with D.I. 463 at 8, n. 3 (citing same).
`
`
`
`7
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 11 of 22 PageID #: 29779
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`(Section II.E). In any event, Motif cannot reasonably respond to this argument as Motif still does
`
`not know what testing was presented to and reviewed by the Court in camera. Nor is it apparent
`
`what Impossible intends
`
` to mean here (the Motion for Reconsideration does not
`
`say). And forcing Motif to defend against an argument, the scope and nature of which it cannot
`
`see, remains greatly unfair to Motif. D.I. 440 at 16.
`
`Impossible also argues that
`
`thus, Impossible was “provided no basis for believing that Hemami
`
`
`
`
`
`
`
` D.I. 516 at 4-5. Yet the purported basis for this argument is Exhibit H of Motif’s
`
`Opposition to Impossible’s Motion to Amend (Motif’s Pre-Market Notification of Myoglobin As
`
`a Novel Food Ingredient in Canada) which was produced by Motif in July 2023. Id. at 4.
`
`Impossible could have raised this issue in its Motion to Amend or at the subsequent hearing.
`
`Thus, Motif need not respond on the merits. Impossible does not even attempt to justify
`
`why it could not have previously raised this argument. Impossible’s failure to “excuse” its prior
`
`silence warrants denial of the Motion for Reconsideration. E.g., Live Face on Web, LLC v.
`
`Rockford Map Gallery, LLC, No. 17-539, 2020 WL 13718835, at *1 (D. Del. Dec. 11, 2020)
`
`(denying reconsideration where “issues should have been raised in connection with the original …
`
`briefing but were inexplicably absent therefrom.). Amgen, 227 F. Supp. 3d at 349.
`
`C.
`
`Because Impossible Failed to Show Diligence in Seeking to Amend Its
`Contentions, Reconsideration Is Inappropriate
`
`This Motion also should be denied for the reasons provided in Motif’s opposition to the
`
`Motion to Amend because Impossible has not shown diligence in both “discovering that an
`
`amendment was necessary and in moving to amend after that discovery.” See generally D.I. 440;
`
`accord Brit. Telecomms. PLC v. IAC/InterActiveCorp, No. 18-366-WCB, 2020 WL 3047989, at
`
`
`
`8
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 12 of 22 PageID #: 29780
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`*2 (D. Del. June 8, 2020). The Court correctly concluded that Impossible’s expert testing did not
`
`reveal anything Impossible did not already know, or could not have readily learned had it acted
`
`diligently. D.I. 506 at 3-4; Live Face on Web, 2020 WL 13718835 at *1 (denying reconsideration
`
`where both old and new arguments and evidence failed to show diligence by a party).
`
`The Motion for Reconsideration does nothing to upset that finding. Rather, it makes clear
`
`that Impossible waited until November 2023—almost six months after receiving Hemami, and
`
`until nearly three months after its final infringement contentions were due—to even begin testing
`
`Hemami. D.I. 516 at 2. As before, Impossible offers no justification for this delay.
`
`Impossible long knew of the importance of testing. That is why Impossible demanded
`
`Motif’s physical product samples and refused to accept product documentation at face value. D.I.
`
`440 at 4-5.17 Despite Impossible’s pleas of necessity and urgency to obtain the samples, however,
`
`Impossible did nothing with the Hemami Motif produced until November 28, 2023—nearly three
`
`months after its final infringement contentions were due on September 1, 2023. D.I. 37 at ¶ 4;
`
`D.I. 516 at 2. Impossible could have tested Motif’s Hemami at any point between June 16 and
`
`November 28—more than five months after Motif produced that product. It chose not to do so.
`
`That is the opposite of diligence. D.I. 440 at 8 (case law establishing timeframe of “diligence”).
`
`The Motion for Reconsideration offers no additional facts supporting diligence.
`
`Impossible claims that it first received test results regarding Hemami in January 2024 and offers
`
`no explanation as to why it took two months to perform the testing, much less why it would take
`
`an additional two months to repeat the testing. D.I. 516 at 2-3. Nor does Impossible explain why
`
`
`17 In the months leading up to Motif’s June 16 sample production, Impossible repeatedly
`argued that Motif’s documents “[were] not an acceptable alternative” to physical samples for
`testing. D.I. 441, Ex. E. Indeed, Impossible contended that Motif must produce samples
`“regardless of the level of specificity” its documents provided about its products. Id.
`
`
`
`9
`
`

`

`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 13 of 22 PageID #: 29781
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`it could not have tested Hemami earlier or sought to amend its infringement contentions in January
`
`2024 based on its initial test results.
`
`Moreover, the Motion for Reconsideration illustrates Impossible’s misstatements about the
`
`significance of its own secret testing. Indeed, even though Impossible now acknowledges that it
`
`had its expert’s
`
` testing results for Hemami as early as January 2024 (D.I. 516
`
`at 2), Impossible previously told the Court in its Motion to Amend that it had no reason to believe
`
`Hemami
`
` until it discovered,
`
`
`
` D.I. 411 at 7-8, 16-17. But now that the Court has
`
`denied Impossible’s Motion for Leave, Impossible claims the Court misapprehended facts about
`
`Impossible’s secret testing and apparently should have ignored the
`
` documents, showing
`
`that Impossible’s arguments regarding those documents were nothing more than a pretense
`
`Impossible used to justify its delay.18 The results of Impossible’s testing do not excuse
`
`Impossible’s lack of diligence in obtaining those results.19
`
`Additionally, the prejudice to Motif should the Court now grant Impossible’s motion is
`
`even greater now. Time has run out to seek relevant discovery—such as from third parties like
`
`, which possess information regarding past testing on Hemami. Moreover, the parties
`
`have now served opening expert reports, and responsive expert reports are due in approximately
`
`
`18 Indeed, Impossible said nothing at all about testing Hemami for
` in January
`2024 or March 2024 in its original motion to amend. Only in its reply, and during the April 17
`hearing, did Impossible claim that it had testing results allegedly showing the presence of
`
` as well.
`
`19 Impossible’s delays in testing also raise other grave concerns about the veracity of its
`still secret testing sufficient to deny its motion. Hemami is an ingredient used in foodstuffs. Like
`any food product, it has a shelf life. Impossible has made no representation regarding the storage
`or transfer of the Hemami samples, leaving a host of concerns about, e.g., the possibility of
`spoilation, expiration, or unintended degradation of Hemami components. None of the briefing
`available to Motif speaks to the state of the Hemami samples at the time those samples were tested.
`
`
`
`10
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`

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`two weeks. Allowing amendment will delay the schedule and needlessly increase the costs of this
`
`case. In light of Impossible’s significant delays, such prejudice is not justified.
`
`D.
`
`Impossible’s Motion for Reconsideration Fails Because Impossible Knew
`Hemami May Contain Contaminants and Did Not Diligently Investigate
`
`After Impossible filed the Motion for Reconsideration, the Court directed Motif to respond
`
`“with particular attention to Impossible’s assertion that Motif’s filtration process would eliminate
`
`any naturally occurring sugar from yeast in the finished Hemami product.” D.I. 517. In fact, since
`
`well before the present litigation even began, Impossible has known that Motif’s method for
`
`manufacturing Hemami may not eliminate unintended, trace contaminants (e.g., sugars or other
`
`molecules in yeast cells) from Hemami. Impossible apparently ignored this fact for years.
`
`1.
`
`Impossible Knew Hemami May Contain Unintended, Trace Contaminants
`Before It Even Filed Its Complaint in this Case
`
`Because of how Hemami is manufactured, it may contain other components besides
`
`myoglobin protein at trace levels. This is not a secret.
`
`Motif submitted a GRAS Notice to the FDA that described the contents of Hemami (“Motif
`
`GRAS Notice”). Section 2.1 of the Motif GRAS Notice describes the “Identity of the Ingredient”
`
`in Hemami:
`
`
`D.I. 1, Ex. 2 at 5. As reflected above, the “myoglobin protein purity” of Hemami may be 65% or
`
`
`
`greater in the preparation (depending on the batch), with the remainder comprised of water and
`
`byproducts from the Pichia yeast that are engineered to produce myoglobin. Yeast byproducts in
`
`
`
`11
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`

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`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 15 of 22 PageID #: 29783
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`Hemami may include “fat” and “carbohydrate.” Only a basic science education is needed to know
`
`that “carbohydrates” can include sugars.20 In fact, no science education is required at all.21
`
`Impossible has long been aware that Hemami may contain unintended, trace carbohydrate
`
`byproducts of the manufacturing process. Impossible knew of this fact even before it brought the
`
`present lawsuit because Impossible attached the Motif GRAS Notice to its March 2022
`
`Complaint. D.I. 1, Ex. 2. The information contained in the Motif GRAS Notice is similar to the
`
`information about Hemami’s contents in Motif’s Core Technical Information for Hemami, which
`
`Motif produced more than a year ago in March 2023. E.g., D.I. 411-2 (MOTIF00000486).
`
`The composition of Hemami, and the potential presence of unintended, trace carbohydrate
`
`byproducts (such as sugars) in the preparation, should have been no surprise to Impossible. Motif
`
`makes Hemami using Pichia yeast—yeast which are “well known to Impossible” (D.I. 506 at 1)
`
`because Impossible
`
` And Impossible’s
`
`
`
`This is shown in Impossible’s own GRAS notice for its heme-protein ingredient (soy
`
`leghemoglobin). Ex. 4 (“Impossible GRAS Notice”). The Impossible GRAS Notice reports a
`
`similar level of purity of Impossible’s leghemoglobin preparation—
`
`and
`
`
`20 The Motif GRAS Notice is fully consistent with other Motif documents and testimony
`relied on by Impossible as Impossible has not shown that Motif ever tested Hemami specifically
`to identify, characterize, or quantify what particular carbohydrates (which might or might not
`include sugars) in any given batch. Motif’s prior testing (e.g., D.I. 411-2) evaluated only the
`nutritional profile of Hemami.
`
`21 “Carbohydrate” means “any of various neutral compounds of carbon, hydrogen, and
`oxygen (such as sugars, starches, and celluloses) most of which are formed by green plants and
`which constitute a major class of animal foods)” (emphasis added). See Ex. 2, Merriam Webster,
`see also Ex. 3, Cambridge
`https://www.merriam-webster.com/dictionary/carbohydrate;
`Dictionary (defining “carbohydrate” as “one of several substances, such as sugar or starch, that
`provide the body with energy, or foods containing these substances such as bread, potatoes, pasta,
`and rice”) (emphasis added), https://dictionary.cambridge.org/us/dictionary/english/carbohydrate.
`
`
`
`12
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`Case 1:22-cv-00311-WCB Document 563 Filed 06/21/24 Page 16 of 22 PageID #: 29784
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`notes that the
`
`fn.2, 25, 36, 53. Impossible’s GRAS Notice also observes that its
`
` Id. at 9. Yet
`
`. Id. at 9
`
`
`
`
`
`
`
` Id. at 10-11. Thus, despite its protestations in the Motion for
`
`Reconsideration, Impossible has long known—including from its own experience—that
`
`
`
`
`
` D.I. 516 at 4. Quite the opposite.
`
`2.
`
`Impossible Crafted Its Infringement Contentions to Accuse Sugars
`Generally
`
`Impossible should have been aware of potential unintended, trace “carbohydrates” in the
`
`Motif GRAS Notice because Impossible’s infringement strategy has never been limited to
`
`contending that formal ingredients of Motif’s food products are needed to meet the recited claim
`
`elements of its asserted patents. If that were the case, this lawsuit would have been over long ago,
`
`because none of Motif’s products contain any of the recited “sulfur compounds” as ingredients.
`
`Rather, Impossible’s case is (improperly) predicated on the proposition that
`
`
`
` can satisfy its claims.
`
`Leaving aside the merits of Impossible’s infringement strategy, its approach forecloses a
`
`finding of diligence here because Impossible has taken the same (improper) sweeping approach in
`
`crafting its infringement contentions for the
`
` compounds recited in its asserted claims.
`
` and other substances in order to
`
`
`
`identify
`
`and accused Motif generally.
`
`
`
`13
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`

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`For example, Impossible’s initial infringement contentions ac