Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 1 of 17 PageID #: 29876
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`IMPOSSIBLE FOODS INC.,
`
`Case No. 22-311-WCB
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC., and
`GINKGO BIOWORKS, INC.,
`
`Defendants.
`
`
`
`
`
`
`
`
`
`JURY TRIAL DEMANDED
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`DEFENDANTS GINKGO BIOWORKS, INC. AND MOTIF FOODWORKS, INC.’S
`ANSWERING BRIEF IN OPPOSITION TO PLAINTIFF IMPOSSIBLE FOODS INC.’S
`MOTION FOR LEAVE TO AMEND ITS IDENTIFICATION OF ASSERTED CLAIMS
`AND INFRINGEMENT CONTENTIONS REGARDING THE YEAST PATENTS
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`Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 2 of 17 PageID #: 29877
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .................................................................................................................. 1
`I.
`II. NATURE OF THE PROCEEDINGS AND FACTUAL BACKGROUND........................... 2
`A.
`Impossible’s Serial Complaints .......................................................................................... 2
`B.
`Impossible’s Awareness of the Accused Yeast Strains ...................................................... 2
`C. The Accused Products, Asserted Claims, and Impossible’s Contentions ........................... 3
`D.
`Impossible Seeks to Amend Its Final Infringement Contentions Again............................. 5
`III. SUMMARY OF THE ARGUMENT ..................................................................................... 5
`IV. ARGUMENT .......................................................................................................................... 6
`A.
`Impossible Cannot Show Good Cause. ............................................................................... 6
`B.
`Impossible Cannot Show Diligence. ................................................................................... 9
`C.
`Impossible’s Proposed Amendment Would Unfairly Prejudice Defendants. ................... 10
`V. CONCLUSION ..................................................................................................................... 12
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`Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 3 of 17 PageID #: 29878
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`TABLE OF AUTHORITIES
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`Page(s)
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`Bechtel v. Robinson,
`886 F.2d 644 (3d Cir. 1989).....................................................................................................10
`
`Brit. Telecommunications PLC v. IAC/InterActiveCorp,
`No. 18-366-WCB, 2020 WL 3047989 (D. Del. June 8, 2020) ..................................................9
`
`Cureton v. Nat’l Collegiate Athletic Ass’n,
`252 F.3d 267 (3d Cir. 2001).....................................................................................................10
`
`Huber Engineered Woods LLC v. La.-Pac. Corp.,
`No. 19-342-VAC-SRF, 2022 WL 18707841 (D. Del. Nov. 17, 2022) ....................................10
`
`ICU Med., Inc. v. RyMed Techs., Inc.,
`674 F. Supp. 2d 574 (D. Del. 2009) ...........................................................................................7
`
`Lear Corp. v. NHK Seating of Am., Inc.,
`No. 13-12937, 2020 WL 1815876 (E.D. Mich. Apr. 10, 2020) ............................................8, 9
`
`Scott v. Vantage Corp.,
`336 F. Supp. 3d 366 (D. Del. 2018) ...........................................................................................7
`
`St. Clair Intellectual Prop. Consultants, Inc. v. Matsushita Elec. Indus. Co.,
`No. 04-1436-LPS, 2012 WL 1015993 (D. Del. Mar. 26, 2012) ................................................6
`
`Targus Int’l LLC v. Victorinox Swiss Army, Inc.,
`No. 20-464-RGA, 2021 WL 2291978 (D. Del. June 4, 2021) .................................................10
`
`Vaxcel Int’l Co. v. HeathCo LLC,
`No. 20-224-LPS, 2022 WL 611067 (D. Del. Feb. 3, 2022) .............................................7, 9, 11
`Other Authorities
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`Fed. R. Civ. P. 15(a) ......................................................................................................................10
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`Fed. R. Civ. P. 16(b)(4)..............................................................................................................6, 10
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`I.
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`INTRODUCTION
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`For Impossible, nothing is ever final. On the heels of Defendants’ agreement to allow
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`Impossible to amend its Final Infringement Contentions once, Impossible proposed another
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`amendment, this time seeking to inject a wholly new claim into the case. See D.I. 498; D.I. 527,
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`Ex. 10. It did so apparently because the claim construction positions it successfully argued for
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`created numerous invalidity problems with the currently asserted claims.
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`Impossible cannot show good cause to assert a claim it has never asserted against
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`Defendants despite knowing all the facts underlying its assertion of the new claim long before
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`October 20, 2023, when it served its Initial Infringement Contentions.
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`Impossible’s reliance on Defendants’ Final Invalidity Contentions for good cause misses
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`the mark. Having chosen to litigate other claims for months, Impossible should not be allowed
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`to hit the reset button now because it regrets its prior choices. Impossible’s attempt to avoid the
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`apparently unanticipated consequences of the claim construction positions it successfully argued
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`for should be rejected.
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`Even if there were good cause, the motion should still be denied because the amendment
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`would prejudice Defendants. Defendants would need to evaluate new invalidity theories,
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`undertake an expanded prior art search, draft new invalidity contentions, and potentially conduct
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`additional discovery beyond what is currently planned. There is no reason to subject Defendants
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`to this burden (which would require amending the scheduling order and shifting the trial date),
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`given that this is again—like Impossible’s decision to name Ginkgo as a party only at the
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`eleventh hour—a problem of Impossible’s own making. Impossible’s motion should be denied
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`so that the Parties can focus on completing fact and expert discovery on the current schedule, in
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`accordance with the scope of the case Impossible chose months ago.
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`Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 5 of 17 PageID #: 29880
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`II.
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`NATURE OF THE PROCEEDINGS AND FACTUAL BACKGROUND
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`A.
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`Impossible’s Serial Complaints
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`On March 9, 2022, Impossible sued Motif, alleging infringement of a single patent, U.S.
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`Patent No. 10,863,761, relating to food products. D.I. 1. A few months later, on July 25, 2022,
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`Impossible filed its First Amended Complaint, asserting four new patents against Motif,1 but
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`without adding the Yeast Patents or Ginkgo as a party. See D.I. 19 ¶ 7. Shortly thereafter,
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`Impossible filed a Second Amended Complaint, adding the Yeast Patents against Motif, which
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`obtains the accused strains from Ginkgo, but not naming Ginkgo as a party. D.I. 22. Impossible
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`did not add Ginkgo as a party for months, despite its knowledge that Ginkgo possessed technical
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`information relating to the accused strains. D.I. 105, Ex. 9 (letter dated March 16, 2023), at 2
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`(“Motif believes that the information listed in your March 13 letter is likely in documents in the
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`possession, custody, and/or control of Ginkgo Bioworks, which show the sequence information
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`you are requesting”).
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`Nearly a year later, well into fact discovery, Impossible filed a Third Amended
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`Complaint, this time naming Ginkgo as a party. D.I. 129 ¶¶ 3, 51-61, 168-197.
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`B.
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`Impossible’s Awareness of the Accused Yeast Strains
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`Impossible has known for more than a year that
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`
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`asserted claim 2. On May 24, 2023, Ginkgo produced detailed technical information in response
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`to a subpoena served by Motif, before Ginkgo was formally added as a party to the lawsuit.
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`, but Impossible has never before
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`1 U.S. Patent Nos. 9,934,096, 10,039,306, 11,013,250, and 11,224,241. The asserted claims of
`U.S. Patent No. 9,934,096 were all found unpatentable by the Patent Trial and Appeal Board in a
`Final Written Decision on June 12, 2024. D.I. 541.
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`D.I. 68. Among the documents Ginkgo produced in response was a
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`” GINKGO000012 (emphasis added); see also, e.g.,
`
`GINKGO0000029 (
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`) (emphasis added); GINKGO000066 (
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`” (emphasis added)).
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`C.
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`The Accused Products, Asserted Claims, and Impossible’s Contentions
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`After a case schedule was set specific to the Yeast Patents and Ginkgo, the parties
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`proceeded with fact discovery. D.I. 161. On August 18, 2023, Impossible served its
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`“Identification of Asserted Yeast Patents and Accused Products.” D.I. 179; see also Bray Decl.2
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`Ex. 1. Specifically, Impossible “accuse[d]
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`
`
`
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`. Ex. 1 at 2 (emphasis added).
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`On September 22, 2023, Ginkgo made its core technical document production, which
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`further confirmed that
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`GINKGO000097 (“
`
`”); see also, e.g., GINKGO000107 (a “
`
`. D.I. 216; see, e.g.,
`
`
`
`”).3
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`2 Declaration of Aaron D. Bray (“Bray Decl.”), concurrently filed in support of this brief.
`3 Beginning as early as June 2, 2023, Motif also produced various documents showing that
`
`
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`
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`. See, e.g., MOTIF00009931 (“
`
`(email noting that
`MOTIF00179686 (
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`3
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`”); MOTIF00074601
`);
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`).
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`On October 20, 2023, Impossible served its Initial Infringement Contentions. Despite
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`knowing that
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`,
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`Impossible elected not to assert claim 2. See Bray Decl. Ex. 2 at 3; D.I. 227.
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`On February 16, 2024, Impossible reduced the number of asserted claims from 17 to 14.
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`D.I. 358. Impossible made no attempt to “swap in” claim 2 for a previously asserted claim.
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`On March 8, 2024, Impossible served what were supposed to be its Final Infringement
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`Contentions. D.I. 395. In them, Impossible identified and asserted new claim 11 of the ’492
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`patent, on a “contingent” basis. See Bray Decl. Ex. 3 at 4 (“For clarity, Impossible does not
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`currently assert claim 11 of the ʼ492 Patent but reserves the right to amend its Identification of
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`Yeast Patent Asserted Claims to include this claim.”). Impossible made no reference to claim 2
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`of the ’492 patent. See id.
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`While the exchange of contentions was ongoing, Impossible, Ginkgo, and Motif also
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`engaged in claim construction briefing specific to the Yeast Patents. Among the terms the
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`parties briefed was Term 2a, “a Mxr1 transcriptional activator sequence from P. pastoris.” See
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`D.I. 371 at 8. Impossible argued that it meant “the sequence to which the Mxr1 transcriptional
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`activator protein binds,” whereas Defendants argued it should be construed as a “sequence of an
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`Mxr1 transcription activator protein.” Id. The Court adopted Impossible’s claim construction on
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`March 22, 2024. See D.I. 414 at 5-18.
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`After the Court’s Markman Order, on April 9, 2024, Impossible reduced the number of
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`asserted claims from the Yeast Patents to six. See D.I. 449; Bray Decl. Ex. 4. In connection
`
`with this reduction, Impossible announced its intention to formally add claim 11 to the case. See
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`Bray Decl. Ex. 5 at 1. Impossible asserted that it had good cause to add this claim “given the
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`recent claim construction ruling.” Id. Defendants did not oppose Impossible’s motion seeking to
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`add claim 11, see D.I. 498, and Impossible was granted leave to amend, D.I. 507.
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`On April 19, 2024, Defendants served their Final Invalidity Contentions, including
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`specific invalidity arguments that flow from the Court’s Markman Order, including with respect
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`to Term 2a. D.I. 486; see also D.I. 414 at 5-18. The Court’s construction of Term 2a
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`significantly changed the invalidity landscape because the construction means that naturally
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`occurring yeast may now fall within the scope of certain of the asserted claims. That broader
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`scope also cast Defendants’ §§ 102 and 103 prior art in new light.
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`D.
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`Impossible Seeks to Amend Its Final Infringement Contentions Again
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`On May 10, 2024, over two years after this lawsuit began, almost a year after Impossible
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`first received information about the composition of the accused yeast strains, more than seven
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`months after Impossible accused
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` of
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`infringement, three weeks after Defendants’ Final Invalidity Contentions, and four days after
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`Defendants consented to Impossible’s first amendment to its Final Infringement Contentions,
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`Impossible first proposed asserting claim 2 of the ’492 patent. See D.I. 527, Ex. 10.
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`III.
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`SUMMARY OF THE ARGUMENT
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`The Court should deny Impossible’s Motion for Leave to Amend its Final Infringement
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`Contentions for three reasons:
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`1.
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`There is no good cause to add an entirely new claim into the case with just a few
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`weeks remaining in fact discovery. Impossible had all the facts necessary to assert claim 2 long
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`ago. Impossible’s apparent realization that the claims it has been pursuing have invalidity issues,
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`based on the Court’s adoption of some of Impossible’s claim construction positions, is not good
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`cause for an amendment.
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`2.
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`Impossible was not diligent in attempting to add claim 2 to this case. Impossible
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`has known that
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` since at least May 2023, yet it
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`never asserted claim 2. Additionally, Defendants’ Final Invalidity Contentions—which
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`Impossible relies on exclusively to demonstrate its purported good cause—were served on April
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`19, 2024. But Impossible did not disclose its intent to add claim 2 to the case until May 10,
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`2024, three weeks later—mere days after Defendants had agreed to allow Impossible to amend
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`its Final Infringement Contentions to assert another new claim.
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`3.
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`Impossible’s proposed amendment would be highly prejudicial to the Defendants
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`because it would change the scope of the case at a very late stage. Defendants have tried to be
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`reasonable in response to Impossible’s serial amendment strategy, but enough is enough. The
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`motion should be denied.
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`IV.
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`ARGUMENT
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`“The good cause standard under Federal Rule of Civil Procedure 16(b) applies to a
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`request to amend asserted claims and infringement contentions.” St. Clair Intellectual Prop.
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`Consultants, Inc. v. Matsushita Elec. Indus. Co., No. 04-1436-LPS, 2012 WL 1015993, at *5 (D.
`
`Del. Mar. 26, 2012); see also Fed. R. Civ. P. 16(b)(4) (“A schedule may be modified only for
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`good cause and with the judge’s consent.”); D.I. 161 ¶ 6 (amending Final Invalidity Contentions
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`requires an “order of the court upon a timely showing of good cause”).
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`A.
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`Impossible Cannot Show Good Cause.
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`Impossible cannot demonstrate good cause for its proposed amendment, and therefore, its
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`motion should be denied. See ICU Med., Inc. v. RyMed Techs., Inc., 674 F. Supp. 2d 574, 578
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`(D. Del. 2009); Scott v. Vantage Corp., 336 F. Supp. 3d 366, 372 (D. Del. 2018). As discussed
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`above, Impossible has been aware from the outset of this case that
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`
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` (the subject of dependent claim 2). See supra § II.
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`Impossible makes no attempt to justify its failure to assert claim 2 from the outset.
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`Instead, Impossible argues that Defendants’ Final Invalidity Contentions provide good cause to
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`amend because Defendants’ invalidity theories “caused Impossible to reevaluate its positions
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`regarding the relative strength of the claims.” D.I. 527 at 7. Put plainly, Impossible realized that
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`one consequence of the Court’s adoption of some of its broad claim constructions was that
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`naturally occurring yeast organisms may be encompassed by the claims. And so now,
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`Impossible wants to swap in a claim that specifically requires expression of a protein that yeast
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`do not naturally make. But it is too late in the case for this type of strategy shift. If patentees
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`were allowed to swap claims in and out whenever they “reevaluated” the relative strength of
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`their claims, there would be no end to the amendment process.
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`Vaxcel Int’l Co. v. HeathCo LLC, No. 20-224-LPS, 2022 WL 611067, at *3 (D. Del. Feb.
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`3, 2022) is on point. The Vaxcel court denied the patentee leave to amend its infringement
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`contentions to add back in claims that had been previously dropped as part of the case-narrowing
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`process—but which it now believed did not suffer from invalidity problems the Court had
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`identified in other claims. See id. In denying leave, Judge Stark explained that it would not be
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`“efficient or appropriate to inject new issues” into the case and ruled that he would “not allow”
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`plaintiff “to derail this case by reviving” the previously dropped claims. See id.
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`Here, the inefficiency would be even greater, because Impossible is not seeking to revive
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`any previously dropped claim; it is seeking to add an entirely new one. Impossible argues that its
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`approach is justified because Defendants’ Final Invalidity Contentions had new § 101 and § 102
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`arguments. See D.I. 527 at 6. But any changes between Defendants’ Initial and Final Invalidity
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`Contentions are the result of discovery to date and the Court’s Markman order. More
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`specifically, Defendants’ Initial Invalidity Contentions were premised on Defendants’
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`understanding of claim scope, but the Final Invalidity Contentions, unsurprisingly, are premised
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`on the Court’s claim constructions. More specifically, Defendants’ Final Infringement
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`Contentions are premised on the Court’s adoption of Impossible’s proposed claim construction
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`of “a Mxr1 transcriptional activator sequence.” D.I. 371 at 8 (Term 2a); see also, supra, § II.C.
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`The consequence of Impossible’s construction is that there are naturally occurring yeast
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`strains (such as those disclosed in Krainer, including a yeast strain designated CBS7435) that
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`may be found to include all the elements of the claims under the Court’s construction. These
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`facts may be unhelpful to Impossible’s case, but they are not new facts that provide good cause.
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`The Lear case does not support Impossible’s good cause argument. See Lear Corp. v.
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`NHK Seating of Am., Inc., No. 13-12937, 2020 WL 1815876, at *6 (E.D. Mich. Apr. 10, 2020);
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`D.I. 527 at 7-8. While that court permitted plaintiff to amend under the unique facts of that case,
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`that was only after defendant added a new indefiniteness theory, two years later, that was directly
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`responsive to plaintiff’s infringement contentions. See id. at *5-7 (explaining that defendant’s
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`invalidity theory was effectively “if you allege that we infringe in that manner, then the claim is
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`indefinite”). But as the Lear court also explained, “often, a new invalidity theory will not be
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`‘good cause’ for amending infringement contentions.” Id. at *7 (emphasis added). As directly
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`applicable to Impossible’s motion, the Lear court recognized that newly raised prior art in final
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`invalidity contentions will be unrelated to a patentee’s bases for believing the asserted claims are
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`infringed by the accused products—and thus “the patent holder would likely have no need to
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`change its final infringement contentions.” Id.
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`Such is the case here, where the purportedly “new” invalidity theories raised by
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`Defendants were not based on any information in Impossible’s Final Infringement Contentions,
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`but rather on existing prior art that became pertinent based on the Court’s claim construction
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`order. Impossible should not be allowed to have a do-over on its selection of claims simply
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`because it now regrets its prior decisions. Vaxcel, 2022 WL 611067, at *3.
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`B.
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`Impossible Cannot Show Diligence.
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`Impossible’s lack of diligence in raising claim 2 also warrants denial of its motion for
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`leave to amend. Impossible offers no explanation why it waited for so long to assert claim 2.
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`Instead, Impossible attempts to point the finger at Motif, alleging that Motif was aware of the
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`“new” prior art before Final Invalidity Contentions were served on April 19, 2024, and
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`suggesting that Motif should have relied on this art earlier in the case. D.I. 527 at 5. This blame-
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`shifting argument is inapposite because, as explained above, Defendants had no reason to include
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`Krainer or the strain designated CBS7435 prior to the Court’s adoption of a claim construction
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`that differed from the PTAB’s. See D.I. 414 at 17-18. Moreover, Impossible was itself already
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`aware of Krainer (and by extension, CBS7435), as the ’492 patent cites Krainer on its face, see
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`’492 patent at (56) (page 2), and thus this reference and strain are no surprise to Impossible.
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`Even after Defendants served their Final Invalidity Contentions, Impossible delayed
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`seeking to add claim 2 until after it had secured an agreement by Ginkgo and Motif not to oppose
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`the addition of claim 11. Compare D.I. 527, Ex. 10 (sent May 10, 2024), with D.I. 498
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`(unopposed motion filed May 6, 2024). The impact of Impossible’s gamesmanship and delay is
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`magnified by the fact that only a few weeks remain in fact discovery. See Brit.
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`Telecommunications PLC v. IAC/InterActiveCorp, No. 18-366-WCB, 2020 WL 3047989, at
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`*2-*5 (D. Del. June 8, 2020) (denying motion to amend) (“If the moving party can establish
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`diligence, other considerations pertinent to the good cause inquiry come into play, including . . .
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`any gamesmanship that is evident from the untimely disclosure, . . . .”). It is simply too late to
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`inject completely new issues into the case, particularly where Impossible could easily have
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`included claim 2 as one of the asserted claims from the outset.
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`The cases relied upon by Impossible do not help its position. As Impossible admits, see
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`D.I. 527 at 4, the amendment permitted in Huber Engineered Woods LLC v. La.-Pac. Corp. was
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`made to account for newly discovered facts. No. 19-342-VAC-SRF, 2022 WL 18707841, at *14
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`(D. Del. Nov. 17, 2022). Here, there are no new facts; Impossible has just become concerned
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`that the claims it chose to assert may be invalid. Contrary to Impossible’s inaccurate description
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`of the case, Targus Int’l LLC v. Victorinox Swiss Army, Inc. concerned a defendant that amended
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`its answer to add an inequitable conduct claim based on its discovery of new facts—that the
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`plaintiff had allegedly failed to inform the patent office of certain of plaintiff’s own products—
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`after the deadline for amended pleadings. No. 20-464-RGA, 2021 WL 2291978, at *2-3 (D. Del.
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`June 4, 2021); contra D.I. 527 at 4. Targus had nothing to do with belated efforts by the
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`patentee to change the case scope in response to invalidity arguments.
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`C.
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`Impossible’s Proposed Amendment Would Unfairly Prejudice Defendants.
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`Impossible’s assertion that its proposed amendment would not cause prejudice to
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`Defendants is incorrect.4 In evaluating prejudice to the non-movant, courts generally consider
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`“whether allowing an amendment would result in additional discovery, cost, and preparation to
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`defend against new facts or new theories.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d
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`267, 273 (3d Cir. 2001) (in the context of an amended complaint, explaining that “substantial or
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`undue prejudice to the non-moving party is a sufficient ground for denial of leave to amend”).
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`Here, if Impossible were allowed to add an entirely new claim at this stage in the case,
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`Defendants would need to evaluate and develop invalidity theories specific to claim 2 (including
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`though additional prior art searching), draft new invalidity contentions specific to claim 2, and
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`recalibrate its discovery strategy to account for a new claim. Defendants should not be forced to
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`expend time or resources on any of these tasks, given that it was Impossible’s decision not to
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`4 In discussing prejudice, Impossible cites Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989),
`which addressed a proposed amended complaint under Federal Rule of Civil Procedure
`Rule 15(a), requiring that “leave [to amend] shall be freely given when justice so requires,” not
`Rule 16(b)(4), which Impossible admits applies here. Compare D.I. 527 at 8, with id. at 3.
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`assert claim 2 at the outset.
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`Impossible argues that any prejudice from additional prior art searching and invalidity
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`analysis would be minimal, because Defendants “already reference prior art discussing
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`Leghemoglobin.” D.I. 527 at 9. But that ignores, for example, that Ginkgo (which was not a
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`party to the IPR5) had no reason to search for prior art specific to leghemoglobin previously and
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`that, to date, Defendants have collectively had no reason to develop obviousness combinations
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`specific to leghemoglobin, as none of the currently asserted claims require that specific protein.
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`In addition, Defendants have already spent significant time and resources determining
`
`how to narrow their invalidity contentions down to 10 references, as required.6 Defendants’
`
`selection of prior art relied on Impossible’s selection of claims. The addition of an entirely new
`
`claim to the case would require Defendants to redo this work, just as fact depositions are
`
`commencing and with only weeks remaining before the close of fact discovery.
`
`Regardless of the exact magnitude of these costs and burden, subjecting Defendants to
`
`this prejudice would be inequitable and incompatible with the case narrowing that has occurred
`
`to date. If Impossible is allowed to expand the case at this late stage, it would require a new case
`
`schedule and, in all likelihood, a new trial date. Impossible should not be permitted to “derail”
`
`the case in this fashion to Defendants’ detriment. See Vaxcel, 2022 WL 611067, at *3.
`
`5 Not only was Ginkgo not a party (and thus has not, to date, considered or evaluated the strength
`of Motif’s argument), but, as noted above, this Court construed the claims differently than the
`implicit construction used in the IPR. See D.I. 414 at 17-18.
`6 Impossible claims that Defendants raised 27 new references in their Final Invalidity
`Contentions. See D.I. 527 at 2. Impossible never identifies what these alleged 27 references are.
`Id. It appears that Impossible reached this number by counting as discrete references each of the
`GenBank sequences that are used to show the makeup of the Pichia pastoris yeast strain
`CBS7435. See id. (citing id., Ex. 1 at 48-49 (which relates to the single reference CB7435)).
`These are not 27 new references but rather pieces of evidence—just as an allegation of
`infringement cannot be said to refer to 100 products merely because it cites to 100 pieces of
`evidence regarding a single product.
`
`ME1 48822865v.1
`
`11
`
`

`

`Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 15 of 17 PageID #: 29890
`
`V.
`
`CONCLUSION
`
`Impossible’s latest gambit to change the scope of the litigation, delay resolution of its
`
`claims, and preserve the litigation cloud that has been hanging over Defendants for the past two
`
`years should be rejected. There is no good cause for Impossible’s proposed amendment,
`
`particularly given the lack of diligence by Impossible and the prejudice Defendants would suffer
`
`from the amendment at this stage in the proceedings. Accordingly, Impossible’s Motion for
`
`Leave to Amend should be denied.
`
`ME1 48822865v.1
`
`12
`
`

`

`Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 16 of 17 PageID #: 29891
`
`Dated: June 20, 2024
`
`MCCARTER & ENGLISH, LLP
`
`/s/ Daniel M. Silver
`Daniel M. Silver (#4758)
`Alexandra M. Joyce (#6423)
`Renaissance Centre
`405 N. King Street, 8th Floor
`Wilmington, Delaware 19801
`(302) 984-6300
`dsilver@mccarter.com
`ajoyce@mccarter.com
`
`Attorneys for Defendant Ginkgo
`Bioworks, Inc.
`
`OF COUNSEL:
`
`Daralyn J. Durie
`Adam R. Brausa
`Vera Ranieri
`Morrison & Foerster LLP
`425 Market Street
`San Francisco, CA 94105-2482
`T: 415.268.7000
`ddurie@mofo.com
`abrausa@mofo.com
`vranieri@mofo.com
`
`Rana Sawaya
`MORRISON & FOERSTER LLP
`250 West 55th Street
`New York, NY 10019-9601
`T: 212.468.8000
`RSawaya@mofo.com
`
`Aaron D. Bray
`Morrison & Foerster LLP
`755 Page Mill Road
`Palo Alto, CA, 94304-1018
`T: 650.813.5600
`abray@mofo.com
`
`Caleb D. Woods
`Morrison & Foerster LLP
`2100 L Street, NW Suite 900
`Washington DC
`T: 202.887.1500
`cwoods@mofo.com
`
`ME1 48822865v.1
`
`13
`
`

`

`Case 1:22-cv-00311-WCB Document 567 Filed 06/27/24 Page 17 of 17 PageID #: 29892
`
`MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP
`
`/s/ Jeremy A. Tigan
`Jeremy A. Tigan (#5239)
`Lucinda C. Cucuzzella (#3491)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jtigan@morrisnichols.com
`ccucuzzella@morrisnichols.com
`
`Attorneys for Defendant Motif
`FoodWorks, Inc.
`
`Dated: June 20, 2024
`
`OF COUNSEL:
`
`Joseph M. Paunovich
`Ryan Landes
`Sandra L. Haberny
`Sarah Cork
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`865 South Figueroa Street
`10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Q. Wood
`Trevor J. Quist
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`ME1 48822865v.1
`
`14
`
`