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Motif FoodWorks, Inc. v. Impossible Foods, Inc.

Docket IPR2023-00208, Patent Trial and Appeal Board (Dec. 7, 2022)
Christopher Kaiser, Donna Praiss, Jeffrey Abraham, presiding
Case TypeInter Partes Review
Patent11013250
Patent Owner Impossible Foods, Inc.
Petitioner Motif FoodWorks, Inc.
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21 Institution Decision Deny: Institution Decision Deny

Document IPR2023-00208, No. 21 Institution Decision Deny - Institution Decision Deny (P.T.A.B. Jun. 16, 2023)
Patent 11,013,250 B2 are mostly produced during the cooking process by chemical reactions molecules (precursors) including amino acids, fats and sugars that are found in plants as well as meat,” and “[b]eef flavors and aromas can be created in non beef consumables by addition of heme proteins.” Id. at 73:40–41, 83:57–60.
On the other hand, an obviousness analysis “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418; accord In re Translogic Tech., Inc., 504 F.3d 1249, 1259 (Fed. Cir. 2007).
Petitioner also argues that a person of ordinary skill in the art would have been “generally motivated by Rovaart itself to use techniques and ingredients that enhance the meaty flavor of Rovaart’s food products,” and would have “recognize[d] that one way to do so would be to include other ‘natural’ ‘suitable flavouring agents’ in the products.” Id. at 48–49 (citing Ex. 1003 ¶¶ 275–277).
We reach a similar result with regard to Petitioner’s argument that a person of ordinary skill in the art would be “generally motivated by Rovaart itself to use techniques and ingredients that enhance the meaty flavor of Rovaart’s food products.” Pet. 48.
Upon consideration of the Petition, the Preliminary Response, and the evidence presented, we determine that Petitioner has not shown a reasonable likelihood that it will prevail in showing that at least one of the challenged claims is unpatentable.
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13 Order Other: Granting Patent Owner Motion for Leave to Seek a Certificate of Correction 37 CFR § 1323, 4220

Document IPR2023-00208, No. 13 Order Other - Granting Patent Owner Motion for Leave to Seek a Certificate of Correction 37 CFR § 1323, 4220 (P.T.A.B. May. 22, 2023)
Patent Owner contends that, even though 37 C.F.R. § 1.323 does not apply here because this inter partes review proceeding is in the pre- institution phase and, thus, not involved in a “trial” before the Board, the applicable standard has been met.
Patent Owner asserts that “[g]ranting of a petition and request for a certificate of correction would disqualify Brown as prior art and thus provide a basis for rejecting these grounds [in IPR2023-00206 and IPR2023- 00207].” Mot.
After reviewing the arguments in the Motion and the Opposition, we conclude that “there is a sufficient basis supporting Patent Owner’s position that the mistake may be correctable.” Honeywell, 939 F.3d at 1349.
Petitioner’s arguments directed to whether the omission was “unintentional” and made “in good faith” go to the merits of Patent Owner’s requested correction, which is in the purview of the Director and not the Board.
Second, Petitioner requests that we instruct Patent Owner to include Petitioner’s Opposition and any Board order concerning the Motion with its petition to the Director.
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3 Notice Notice filing date accorded: Notice Notice filing date accorded

Document IPR2023-00208, No. 3 Notice Notice filing date accorded - Notice Notice filing date accorded (P.T.A.B. Dec. 19, 2022)
For more information, please consult the Office Patent Trial Practice Guide, 77 Fed. Reg. 48756 (Aug. 14, 2012), which is available on the Board Web site at http://www.uspto.gov/PTAB.
Patent Owner is advised of the requirement to submit mandatory notice information under 37 C.F.R. § 42.8(a)(2) within 21 days of service of the petition.
The parties are advised that under 37 C.F.R. § 42.10(c), recognition of counsel pro hac vice requires a showing of good cause.
Ian Robert Liston Jennifer A. Ward Wilson Sonsini Goodrich & Rosati PC 222 Delaware Avenue, Suite 800 Wilmington, DE 19801 Case IPR2023-00208 Patent No. 11,013,250
If the parties actually engage in alternative dispute resolution, the PTAB would be interested to learn what mechanism (e.g., arbitration, Case IPR2023-00208 Patent No. 11,013,250 mediation, etc.) was used and the general result.
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20 Other other: Patent Owners Response to Petitioner Priority Briefing

Document IPR2023-00208, No. 20 Other other - Patent Owners Response to Petitioner Priority Briefing (P.T.A.B. Jun. 12, 2023)
Petitioner argues that the corrected priority claim sought by Impossible Foods is defective with regard to the ’211 application because the priority claim fails to make “a specific reference to the earlier filed application” by identifying the earlier application’s “(1) application number; and (2) familial relationship.” Paper 17, 3-6.
Lastly, Petitioner argues that the corrected priority claim is improper because the priority claims of intermediate applications PCT ’347 and PCT ’361 “fail to identify their specific familial relationship” to the ’211 application and fail to reference the ’069 provisional, Brown, and the ’205 provisional.
As Petitioner notes, the Patent Office noted this aspect of the priority claim in its dismissals without prejudice in related applications (see id.), and Impossible Foods has taken steps toward correcting the claim recited in these intermediate applications.
Namely, Petitioner’s argument that Brown’s “muscle replica” equates to the claimed “food flavor additive composition” is baseless with respect to the ’096 patent, and Petitioner’s reading out express claim limitations and reliance on the same component (i.e., pea flour) to satisfy two separate elements with respect to the ’241 patent are improper.
Thus, for the ’250 and ’306 patents, the Board need not determine the earliest effective filing date for these claims in order to reach a decision on the merits of Petitioner’s grounds.
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15 Motion Other: Petitioners Opening Brief Challenging Priority Claim

Document IPR2023-00208, No. 15 Motion Other - Petitioners Opening Brief Challenging Priority Claim (P.T.A.B. Jun. 1, 2023)
The Supreme Court held that, “even allowing for a reasonable degree of experimentation,” the claims were invalid under § 112 because the specification failed to enable the broad genus of undisclosed antibodies.
Case No.: IPR2023-00208 U.S. Patent No. 11,013,250 thiamine in its composition (see, e.g., IPR2023-00206, Paper 7, 22-23),9 Brown does not disclose separately adding these sulfur compounds as individual ingredients and combining them with the claimed sugars and a heme-containing protein.
As in Amgen, the challenged patents claim literally millions of combinations of sugar and sulfur compounds and heme proteins based on their function: those that produce meat-associated/beef-like aromas.
For example, Dr. McGorrin opines that a POSITA would understand that the claimed sugar and sulfur compounds will chemically react differently upon cooking the composition, and that the volatile products of the
In particular, the examples and tables in the ’096/’241 patent specification that describe combinations of the various claimed precursor compounds and heme proteins and the aromas they generate are entirely missing from Brown.
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9 Opposition: Petitioners Opposition to POs Motion Pursuant to 1323

Document IPR2023-00208, No. 9 Opposition - Petitioners Opposition to POs Motion Pursuant to 1323 (P.T.A.B. Apr. 21, 2023)
Even if PO supposedly only learned of its “mistake” after Petitioner filed IPRs, PO offers no explanation for why it waited 3.5 months to provide notice or seek correction.
PO’s request has serious, unforeseeable consequences for Petitioner—if PO is granted leave and the Board gives retroactive effect to any Certificate of Correction (“CoC”) issued by the Director, PO will argue that multiple grounds in the IPRs are obviated.
5 At a minimum, the Board should permit discovery on PO’s delays “to determine whether there is sufficient basis supporting Patent Owner’s position that the mistake may be correctable.” Honeywell, 939 F.3d at 1351.
Half of the grounds against the ’096 patent’s independent claims and a third of the grounds against the ’241 patent’s independent claims rely on Brown as prior art.7 Because retroactively applying PO’s proposed changes to the priority chain would at least on its face remove Brown as prior art,8 Petitioner will be prejudiced if dozens of pages in those two proceedings’ Petitions are rendered meaningless.
8 Petitioner maintains that because the Prior-filed Applications fail to provide written description support for the Challenged Claims, Brown is still prior art.
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7 Motion Other: Patent Owners Motion Pursuant to 37 CFR §1323

Document IPR2023-00208, No. 7 Motion Other - Patent Owners Motion Pursuant to 37 CFR §1323 (P.T.A.B. Apr. 13, 2023)
Thus, none of the grounds asserted in the petitions challenging the ’250 and ’306 patents will be affected.
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