Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 1 of 33 PageID #: 808
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`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
`
`CASE NO.: 1:22-cv-00311-CFC
`
`FIRST AMENDED
`COMPLAINT FOR DAMAGES
`AND INJUNCTIVE RELIEF
`
`JURY TRIAL DEMANDED
`
`))))))))))
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC.,
`
`Defendant.
`
`Plaintiff Impossible Foods Inc. (“Impossible Foods”) brings this First
`
`Amended Complaint against defendant Motif FoodWorks, Inc. (“Motif” or
`
`“Defendant”) and alleges, on personal knowledge as to its own actions and on
`
`information and belief as to the actions of others, as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff Impossible Foods is a Delaware corporation with its
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`principal place of business at 400 Saginaw Drive, Redwood City, California.
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`Impossible Foods develops and distributes plant-based meat products, including
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`the well-known IMPOSSIBLE BURGER, IMPOSSIBLE SAUSAGE and
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`IMPOSSIBLE MEATBALLS (“IMPOSSIBLE Products”).
`
`2.
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`Defendant Motif is a Delaware corporation with its principal place of
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`business at 27 Drydock Avenue, Boston, Massachusetts. Defendant advertises
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`1
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR DISTRICT OF DELAWARE
`
`CASE NO.: 1:22-cv-00311-CFC
`
`FIRST AMENDED
`COMPLAINT FOR DAMAGES
`AND INJUNCTIVE RELIEF
`
`JURY TRIAL DEMANDED
`
`))))))))))
`
`IMPOSSIBLE FOODS INC.,
`
`Plaintiff,
`
`v.
`
`MOTIF FOODWORKS, INC.,
`
`Defendant.
`
`Plaintiff Impossible Foods Inc. (“Impossible Foods”) brings this First
`
`Amended Complaint against defendant Motif FoodWorks, Inc. (“Motif” or
`
`“Defendant”) and alleges, on personal knowledge as to its own actions and on
`
`information and belief as to the actions of others, as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff Impossible Foods is a Delaware corporation with its
`
`principal place of business at 400 Saginaw Drive, Redwood City, California.
`
`Impossible Foods develops and distributes plant-based meat products, including
`
`the well-known IMPOSSIBLE BURGER, IMPOSSIBLE SAUSAGE and
`
`IMPOSSIBLE MEATBALLS (“IMPOSSIBLE Products”).
`
`2.
`
`Defendant Motif is a Delaware corporation with its principal place of
`
`business at 27 Drydock Avenue, Boston, Massachusetts. Defendant advertises
`
`1
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 2 of 33 PageID #: 809
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`itself as a provider of plant-based food ingredients, ingredient systems, and
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`finished formulations of plant-based food.
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`3.
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`Founded in 2011, Impossible Foods seeks to restore biodiversity and
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`reduce the impact of climate change by transforming the global food system. To
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`do this, it makes delicious, nutritious, affordable, and sustainable meat from
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`plants. Impossible Foods’ innovative approach to food science, powered by
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`proprietary research and patent-protected technology, has allowed it to develop
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`plant-based foods, including the award-winning IMPOSSIBLE BURGER, that
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`recreates the entire sensory experience of eating meat despite being made from
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`plants, without any animal meat or animal meat-derived ingredients. Impossible
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`Foods has invested hundreds of millions of dollars in the research and
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`development of these market-leading meat alternatives and has secured patents
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`covering its innovative ingredients, food products and manufacturing processes.
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`4.
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`Defendant has sought to compete with Impossible Foods with
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`ingredients that make meat alternative products that allegedly taste, smell and feel
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`like animal meat.
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`5.
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`Impossible Foods brings this action for damages and injunctive relief
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`to protect its innovative technology and products against Defendant’s patent
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`infringement.
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`2
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`NATURE OF THE ACTION
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`6.
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`This is an action for patent infringement under title 35 of the United
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`States Code.
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`7.
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`As set forth in more detail below, Defendant has been infringing
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`Impossible Foods’ patents, including at least United States Patent Nos. 9,934,096
`
`(“the ’096 Patent”), 10,039,306 (“the ’306 Patent”), 10,863,761 (“the ’761
`
`Patent”), 11,013,250 (“the ’250 Patent”), and 11,224,241 (“the ’241 Patent”)
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`(collectively, the “patents-in-suit”), and continues to do so through the present
`
`date.
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`8.
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`Impossible Foods thus seeks injunctive relief against Defendant’s
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`infringement of its patents, as well as damages for Defendant’s past and ongoing
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`patent infringement.
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`JURISDICTION AND VENUE
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`9.
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`This Court has subject matter jurisdiction of this suit for patent
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`infringement pursuant to 28 U.S.C. §§ 1331 and 1338(a).
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`10.
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`This Court has personal jurisdiction over Defendant because
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`Defendant is incorporated in the State of Delaware.
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`11. Venue is proper in this District under 28 U.S.C. § 1400(b), because
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`Defendant is incorporated in, and thus resides in, this District.
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`3
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`BACKGROUND
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`A.
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`Impossible Foods’ Innovative Technology and Patents
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`12.
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`Founded in 2011 by Dr. Patrick O. Brown, Impossible Foods is a
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`food innovator and seeks to develop and sell delicious, nutritious, affordable, and
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`sustainable meat made from plants.
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`13.
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`Early in its history, Impossible Foods assembled a team of scientists
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`for an ambitious research investigation: determining which biological molecules
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`make meat look, cook, and taste the way it does. The company discovered that
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`heme, a biological molecule involved in oxygen transport, is a central component
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`of meat’s appeal, leading to meat’s savory flavor and aroma and influencing how
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`meat cooks. Specifically, heme is “the molecule that gives meat its bloody taste
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`when raw and creates the intense, meaty flavors and aromas when it’s cooked.”1
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`Impossible Foods set out to make plant-based foods that incorporate heme to
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`replicate the taste, aroma, and overall sensory experience of meat. The
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`IMPOSSIBLE Products include heme.
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`14.
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`The heme in the IMPOSSIBLE Products is part of a hemoprotein
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`molecule called soy leghemoglobin, or LegH. LegH occurs naturally in the root
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`nodules of soy plants and, on information and belief, is not naturally produced in
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`1 https://impossiblefoods.com/blog/how-gmos-can-save-civilization-and-
`probably-already-have
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`4
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`the body of any animal species. Impossible Foods discovered that the inclusion
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`of leghemoglobin “transformed what would otherwise have been a dull tasting
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`veggie burger into [] meat! And the meat cooked, smelled and tasted like meat
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`from a cow.”2
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`15.
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`LegH can be produced by growing soy plants, harvesting the root
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`nodules, and isolating the hemoprotein—but Impossible Foods discovered that
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`this process was too inefficient for commercial production. Impossible Foods
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`thus developed a proprietary strain of genetically modified Pichia yeast that
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`produces LegH through a fermentation process.
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`16.
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`Impossible Foods released IMPOSSIBLE BURGER in 2016 and
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`reformulated it in 2019. IMPOSSIBLE BURGER is a meat replica product that
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`replicates the flavor and texture of ground beef and can be used as a hamburger
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`meat replacement for multiple applications. IMPOSSIBLE BURGER has won
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`numerous awards, including “Best of the Best” at the 2019 Consumer Electronics
`
`Show, and is available in thousands of restaurants and grocery stores nationwide.
`
`17.
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`Impossible Foods has applied for, and has been awarded, patents
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`regarding many elements and aspects of the manufacturing and composition of
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`heme-containing meat replica products.
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`2 https://impossiblefoods.com/blog/heme-health-the-essentials
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`5
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`18. On April 17, 2018, the United States Patent and Trademark Office
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`issued U.S. Patent No. 9,943,096 to Impossible Foods, entitled “Methods and
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`Compositions for Affecting the Flavor and Aroma Profile of Consumables.” A
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`true and correct copy of the ’096 Patent is attached as Exhibit 1.
`
`19. On August 7, 2018, the United States Patent and Trademark Office
`
`issued U.S. Patent No. 10,039,306 to Impossible Foods, entitled “Methods and
`
`Compositions for Consumables.” A true and correct copy of the ’306 Patent is
`
`attached as Exhibit 2.
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`20. On December 15, 2020, the United States Patent and Trademark
`
`Office issued U.S. Patent No. 10,863,761 to Impossible Foods, entitled “Methods
`
`and Compositions for Consumables.” A true and correct copy of the ’761 Patent
`
`is attached as Exhibit 3.
`
`21. On May 25, 2021, the United States Patent and Trademark Office
`
`issued U.S. Patent No. 11,013,250 to Impossible Foods, entitled “Methods and
`
`Compositions for Consumables.” A true and correct copy of the ’250 Patent is
`
`attached as Exhibit 4.
`
`22. On January 18, 2022, the United States Patent and Trademark Office
`
`issued U.S. Patent No. 11,224,241 to Impossible Foods, entitled “Methods and
`
`Compositions for Affecting the Flavor and Aroma Profile of Consumables.” A
`
`true and correct copy of the ’241 Patent is attached as Exhibit 5.
`
`6
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`B.
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`Defendant’s Product Development
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`23. Defendant spun out of Ginkgo Bioworks Inc. (“Ginkgo Bioworks”),
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`a genetic engineering company, in early 2019. Ginkgo Bioworks is still a major
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`investor in Defendant.
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`24. Defendant describes its products as “Meat alternative options that
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`consumers crave.”
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`25. On its website, Defendant advertises that it sells “individual
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`ingredients,” “ingredient systems,” and “finished formulations” of “plant-based
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`food.” Defendant includes pictures of various foods that purportedly replicate the
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`“taste, texture and appearance” of meat. For instance, Defendant’s website
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`depicts the following with respect to taste:
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`7
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 8 of 33 PageID #: 815
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`https://madewithmotif.com/solutions/
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`26. Defendant’s website depicts the following with respect to texture:
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`https://madewithmotif.com/solutions/
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`8
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`27. Defendant’s website depicts the following with respect to
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`appearance:
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`https://madewithmotif.com/solutions/
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`28. Defendant markets meat alternatives that include the ingredient
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`HEMAMI, which purportedly provides “meat alternatives” with “[t]he real
`
`umami flavors, appearance and aromas of meat.”3 Its website notes that
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`HEMAMI “tastes and smells like meat because it uses the same naturally
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`3 https://madewithmotif.com/solutions/
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`9
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 10 of 33 PageID #: 817
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`occurring heme protein” and bestows “[m]outh-watering aromas that engage the
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`senses—while cooked and right before you take your first bite.”4
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`29. As Defendant’s website notes, HEMAMI contains heme.
`
`30.
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`In an April 2021 submission to the Food and Drug Administration
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`(FDA) Office of Food Additive Safety (hereinafter “the Motif GRAS Notice”),
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`Defendant stated that “Motif FoodWorks’ myoglobin ingredient is a liquid
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`flavoring preparation (herein referred to as Myoglobin Preparation) containing
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`myoglobin produced by fermentation from a modified strain of Pichia pastoris
`
`expressing the myoglobin gene from Bos taurus.” A true and correct copy of the
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`Motif GRAS Notice is attached as Exhibit 6.
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`31. On information and belief, HEMAMI contains the bovine myoglobin
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`preparation that is the subject of the Motif GRAS Notice.
`
`C.
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`Defendant’s Infringing Products and Activities
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`32. Defendant has made and demonstrated a meat replica at trade shows,
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`including the Plant Based World Expo in New York in December 2021.
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`Defendant has since demonstrated its meat replica at Natural Products Expo West
`
`in Anaheim, California in March 2022; the Future Food-Tech Expo in San
`
`Francisco, California in March 2022; and the National Restaurant Association
`
`4 https://madewithmotif.com/solutions/
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`10
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 11 of 33 PageID #: 818
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`Show in Chicago, Illinois in May 2022. The meat replica that Defendant
`
`demonstrated infringes the patents-in-suit.
`
`33. Defendant’s meat replica includes its HEMAMI ingredient.
`
`34.
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`In the summer of 2021, Defendant partnered with Coolgreens, a
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`restaurant chain with a location in Dallas, TX, to produce and sell meat replica
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`products containing HEMAMI. Defendant and Coolgreens sold infringing
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`products from Coolgreens’ Dallas restaurant.
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`35. Defendant notes on its website that its Motif BeefWorksTM Plant-
`
`Based Burger Patties are “Available now.” Defendant also describes the
`
`infringing burgers it sold from Coolgreens’ Dallas restaurant as “Motif
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`BeefWorksTM Plant-Based Burger Patties.”
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`36. On information and belief, Defendant has had opportunities to obtain
`
`non-public information regarding Impossible Foods’ proprietary yeast and
`
`methods of making its proprietary heme-containing protein.
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`37. Defendant recently launched HEMAMI for sale to customers with
`
`intent that customers integrate HEMAMI into their own plant-based meat
`
`alternatives.
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`38. Defendant is currently constructing a research, development, and
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`production facility in Massachusetts that it intends to use for fermentation,
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`ingredient production, and finished product production, including, on information
`
`11
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 12 of 33 PageID #: 819
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`and belief, manufacturing the heme-containing bovine myoglobin included in
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`HEMAMI, production of HEMAMI, and production of finished meat replica
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`products integrating HEMAMI. Defendant plans for the facility to be fully online
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`this year.
`
`39.
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`Solar Biotech, which has a facility in Virginia that has been used to
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`manufacture HEMAMI, also announced, on January 28, 2022, that it would
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`continue to manufacture HEMAMI for Defendant.
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`40. On information and belief, the finished meat replica products that
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`include HEMAMI (the “Infringing Products”) and which Defendant has sold,
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`offered for sale, and/or demonstrated for marketing purposes, including but not
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`limited to the Motif BeefWorksTM burger and sausage, infringe, contain infringing
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`ingredients, and/or are made by the use of processes that infringe, one or more of
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`the patents-in-suit.
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`41. Defendant is and has been aware that the inclusion of HEMAMI in
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`meat replica products is a violation of Impossible Foods’ patent rights and has
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`touted HEMAMI as a substitute for Impossible Foods’ patented technology in its
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`marketing communications.
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`42.
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`For example, Defendant’s official Twitter account,
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`@motiffoodworks, retweeted a link to an article in The Spoon, a food technology
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`trade publication, from February 7, 2022. That article stated that the launch of
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`12
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`HEMAMI “is good news if you’re a maker of alt-meat products who wants to
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`replicate Impossible’s proprietary plant-based heme, because now instead of
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`spending tens of millions trying to build it yourself, now you can buy a similar
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`technology from Motif.”5
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`43. As another example, Defendant’s CEO, Jonathan McIntyre, provided
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`a quote pertaining to Defendant’s new Massachusetts facility that was included in
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`a December 8, 2021 article in Vegconomist, a vegan industry trade publication.
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`That article noted that “heme represented Impossible Foods’ most closely-
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`guarded flavor secret, and the $2 billion company held exclusive patent rights and
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`knowledge on producing and commercializing it.”6
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`44.
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`In addition, Ginkgo Bioworks’ CEO, in an article announcing a
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`round of fundraising completed by Defendant, described Defendant’s strategy as
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`follows: “We’ll brew up the next 100 hemes so that we can see many more
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`Impossible Burgers in the next few years.”7
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`COUNT I: INFRINGEMENT OF THE ’096 PATENT
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`45.
`
`Impossible Foods incorporates and re-alleges ¶¶ 1-44 as though fully
`
`stated herein.
`
`5 h
`
`ttps://twitter.com/RethinkFoodVC/status/1490690290147078145?s=20&t=DD9
`WjVymcPhHCw3z0SpqUA
`6 https://vegconomist.com/products-launches/motif-foodworks-heme/
`7 https://www.inc.com/jeff-bercovici/motif-food-biotech.html
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`13
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`46.
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`Impossible Foods is the owner of all right, title, and interest in and to
`
`the ’096 Patent. Impossible Foods has the exclusive right to make, use, sell, and
`
`offer to sell any product embodying the ’096 Patent throughout the United States,
`
`and to import any product embodying the ’096 Patent into the United States.
`
`47.
`
`The ’096 Patent claims and describes an invention comprising a food
`
`flavor additive composition, comprising an isolated heme-containing protein, a
`
`compound selected from a list of sugar compounds, and a compound selected
`
`from a list of sulfur-containing compounds, wherein the flavor additive
`
`composition contains no animal products and wherein cooking the food flavor
`
`additive composition results in the production of at least two volatile compounds
`
`which have a meat-associated aroma.
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`48. On information and belief, Defendant has been and is now infringing
`
`at least claim 1 of the ’096 Patent in the United States by, among other things,
`
`directly or through intermediaries, making, using, selling, and/or offering for sale
`
`the Infringing Products, which are covered by one or more claims of the ’096
`
`Patent, to the injury of Impossible Foods. In particular, the Infringing Products
`
`comprise a food flavor additive composition, comprising an isolated heme-
`
`containing protein, a compound selected from the list of sugar compounds in
`
`claim 1 of the ’096 Patent , and a compound selected from the list of sulfur-
`
`containing compounds in claim 1 of the ’096 Patent, wherein the flavor additive
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`14
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 15 of 33 PageID #: 822
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`composition contains no animal products and wherein cooking the food flavor
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`additive composition results in the production of at least two volatile compounds
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`which have a meat-associated aroma.
`
`49. Defendant is directly infringing, literally and/or under the doctrine of
`
`equivalents, the ’096 Patent. Defendant is thus liable for infringement of the ’096
`
`Patent pursuant to 35 U.S.C. § 271(a).
`
`50. Defendant infringes the ’096 Patent because it makes, uses, sells
`
`and/or offers for sale the invention of the ’096 Patent. In particular, Defendant
`
`infringes at least claim 1 of the ’096 Patent by making, using, selling and/or
`
`offering for sale HEMAMI and/or the Infringing Products.
`
`51. On information and belief, Defendant will continue to infringe the
`
`’096 Patent unless enjoined.
`
`52. Defendant contributes to infringement of the ’096 Patent under 35
`
`U.S.C. § 271(c) inasmuch as it provides a component of the Infringing Products,
`
`e.g., HEMAMI, which constitutes a material part of Impossible Foods’ invention,
`
`to another, knowing the same to be especially made or especially adapted for use
`
`in infringement of the ’096 Patent.
`
`53. On information and belief, Defendant will continue to contribute to
`
`infringement of the ’096 Patent unless enjoined.
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`15
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 16 of 33 PageID #: 823
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`54. Defendant actively encourages its business partners to make, use,
`
`sell, and/or offer for sale the Infringing Products. Defendant is aware of
`
`Impossible Foods’ proprietary IMPOSSIBLE BURGER. Moreover, Defendant is
`
`aware of the ’096 Patent. Despite such knowledge, Defendant has actively
`
`induced its business partners to make, use, sell, and/or offer for sale the Infringing
`
`Products in a way that constitutes infringement. Defendant has encouraged this
`
`infringement with a specific intent to cause its business partners and customers to
`
`infringe. Defendant’s acts thus constitute active inducement of patent
`
`infringement in violation of 35 U.S.C. § 271(b).
`
`55. On information and belief, Defendant will continue to induce
`
`infringement of the ’096 Patent unless enjoined.
`
`56. Defendant’s direct infringement, contributory infringement, and
`
`inducement of infringement have irreparably harmed Impossible Foods.
`
`57.
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`Pursuant to 35 U.S.C. § 284, Impossible Foods is entitled to damages
`
`adequate to compensate for Defendant’s infringement.
`
`58. Defendant’s infringement has been and is willful and, pursuant to 35
`
`U.S.C. § 284, Impossible Foods is entitled to treble damages. Defendant’s willful
`
`infringement is based at least on Defendant’s knowledge of Impossible Foods, its
`
`manufacturing techniques, its products, and its patents (see, e.g., ¶¶ 26, 36-39,
`
`supra). Defendant’s conduct is egregious as it has continued offering, selling,
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`16
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 17 of 33 PageID #: 824
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`making and/or using the Infringing Products despite knowledge of the
`
`infringement. Defendant has either willfully and wantonly infringed the ’096
`
`Patent or has recklessly avoided knowledge of its own infringement, even when
`
`faced with knowledge of Impossible Foods’ own products and patents.
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`COUNT II: INFRINGEMENT OF THE ’306 PATENT
`
`59.
`
`Impossible Foods incorporates and re-alleges ¶¶ 1-58 as though fully
`
`stated herein.
`
`60.
`
`Impossible Foods is the owner of all right, title, and interest in and to
`
`the ’306 Patent. Impossible Foods has the exclusive right to make, use, sell, and
`
`offer to sell any product made by the method of the ’306 Patent throughout the
`
`United States, and to import any product made by the invention of the ’306 Patent
`
`into the United States.
`
`61.
`
`The ’306 Patent claims and describes an invention comprising a
`
`method for imparting a beef-like aroma to a meat replica matrix, wherein the
`
`meat replica matrix comprises one or more plant proteins, a sugar selected from a
`
`list of sugar compounds, and a sulfur-containing compound selected from a list of
`
`sulfur-containing compounds, where the method comprises adding 0.01%-5% (by
`
`weight of the meat replica matrix) of a non-animal heme-containing protein to the
`
`meat replica matrix, wherein, upon cooking of the meat replica matrix, at least
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`17
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 18 of 33 PageID #: 825
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`two volatile compounds are generated that are associated with a beef-like aroma,
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`thereby imparting a beef-like aroma to the meat replica matrix.
`
`62. On information and belief, Defendant has been and is now infringing
`
`at least claim 1 of the ’306 Patent in the United States by, among other things,
`
`directly or through intermediaries, using the invention of the’306 Patent to make
`
`the Infringing Products, to the injury of Impossible Foods. In particular, the
`
`Infringing Products are made by a process comprising a method for imparting a
`
`beef-like aroma to a meat replica matrix, wherein the meat replica matrix
`
`comprises one or more plant proteins, a sugar selected from the list of sugar
`
`compounds in claim 1 of the ’306 Patent , and a sulfur-containing compound
`
`selected from the list of sulfur-containing compounds in claim 1 of the ’306
`
`Patent, where the method comprises adding 0.01%-5% (by weight of the meat
`
`replica matrix) of a non-animal heme-containing protein to the meat replica
`
`matrix, wherein, upon cooking of the meat replica matrix, at least two volatile
`
`compounds are generated that are associated with a beef-like aroma, thereby
`
`imparting a beef-like aroma to the meat replica matrix.
`
`63. Defendant is directly infringing, literally and/or under the doctrine of
`
`equivalents, the ’306 Patent. Defendant is thus liable for infringement of the ’306
`
`Patent pursuant to 35 U.S.C. § 271(a).
`
`18
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`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 19 of 33 PageID #: 826
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`64. Defendant infringes the ’306 Patent because it uses the invention of
`
`the ’306 Patent. In particular, Defendant infringes at least claim 1 of the ’306
`
`Patent by making the Infringing Products.
`
`65. On information and belief, Defendant will continue to infringe the
`
`’306 Patent unless enjoined.
`
`66. Defendant contributes to infringement of the ’306 Patent under 35
`
`U.S.C. § 271(c) inasmuch as it provides a component of the Infringing Products,
`
`e.g., HEMAMI, which constitutes a material part of Impossible Foods’ invention,
`
`to another, knowing the same to be especially made or especially adapted for use
`
`in infringement of the ’306 Patent.
`
`67. On information and belief, Defendant will continue to contribute to
`
`infringement of the ’306 Patent unless enjoined.
`
`68. Defendant actively encourages its business partners to make, use,
`
`sell, and/or offer for sale the Infringing Products. Defendant is aware of
`
`Impossible Foods’ proprietary IMPOSSIBLE BURGER. Moreover, Defendant is
`
`aware of the ’306 Patent. Despite such knowledge, Defendant has actively
`
`induced its business partners to make, use, sell, and/or offer for sale the Infringing
`
`Products in a way that constitutes infringement. Defendant has encouraged this
`
`infringement with a specific intent to cause its business partners and customers to
`
`19
`
`
`
`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 20 of 33 PageID #: 827
`
`infringe. Defendant’s acts thus constitute active inducement of patent
`
`infringement in violation of 35 U.S.C. § 271(b).
`
`69. On information and belief, Defendant will continue to induce
`
`infringement of the ’306 Patent unless enjoined.
`
`70. Defendant’s direct infringement, contributory infringement, and
`
`inducement of infringement have irreparably harmed Impossible Foods.
`
`71.
`
`Pursuant to 35 U.S.C. § 284, Impossible Foods is entitled to damages
`
`adequate to compensate for Defendant’s infringement.
`
`72. Defendant’s infringement has been and is willful and, pursuant to 35
`
`U.S.C. § 284, Impossible Foods is entitled to treble damages. Defendant’s willful
`
`infringement is based at least on Defendant’s knowledge of Impossible Foods, its
`
`manufacturing techniques, its products, and its patents (see, e.g., ¶¶ 26, 36-39,
`
`supra). Defendant’s conduct is egregious as it has continued offering, selling,
`
`making and/or using the Infringing Products despite knowledge of the
`
`infringement. Defendant has either willfully and wantonly infringed the ’306
`
`Patent or has recklessly avoided knowledge of its own infringement, even when
`
`faced with knowledge of Impossible Foods’ own products and patents.
`
`73.
`
`This case is “exceptional” within the meaning of 35 U.S.C. § 285,
`
`and Impossible Foods is entitled to an award of attorneys’ fees.
`
`20
`
`
`
`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 21 of 33 PageID #: 828
`
`COUNT III: INFRINGEMENT OF THE ’761 PATENT
`
`74.
`
`Impossible Foods incorporates and re-alleges ¶¶ 1-73 as though fully
`
`stated herein.
`
`75.
`
`Impossible Foods is the owner of all right, title, and interest in and to
`
`the ’761 Patent. Impossible Foods has the exclusive right to make, use, sell, and
`
`offer to sell any product embodying the ’761 Patent throughout the United States,
`
`and to import any product embodying the ’761 Patent into the United States.
`
`76.
`
`The ’761 Patent claims and describes an invention comprising a beef
`
`replica product, which comprises a) a muscle replica comprising 0.1%-5% of a
`
`heme-containing protein, at least one sugar compound and at least one sulfur
`
`compound; and b) a fat tissue replica comprising at least one plant oil and a
`
`denatured plant protein, wherein said muscle replica and fat tissue replica are
`
`assembled in a manner that approximates the physical organization of meat.
`
`77. On information and belief, Defendant has been and is now infringing
`
`at least claim 1 of the ’761 Patent in the United States by, among other things,
`
`directly or through intermediaries, making, using, selling, and/or offering for sale
`
`the Infringing Products, which are covered by one or more claims of the ’761
`
`Patent, to the injury of Impossible Foods. In particular, the Infringing Products
`
`comprise a beef replica product comprising a) a muscle replica comprising 0.1%-
`
`5% of a heme-containing protein, at least one sugar compound and at least one
`
`21
`
`
`
`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 22 of 33 PageID #: 829
`
`sulfur compound; and b) a fat tissue replica comprising at least one plant oil and a
`
`denatured plant protein, wherein said muscle replica and fat tissue replica are
`
`assembled in a manner that approximates the physical organization of meat.
`
`78. Defendant is directly infringing, literally and/or under the doctrine of
`
`equivalents, the ’761 Patent. Defendant is thus liable for infringement of the ’761
`
`Patent pursuant to 35 U.S.C. § 271(a).
`
`79. Defendant infringes the ’761 Patent because it makes, uses, sells
`
`and/or offers for sale the invention of the ’761 Patent. In particular, Defendant
`
`infringes at least claim 1 of the ’761 Patent by making, using, selling and/or
`
`offering for sale the Infringing Products.
`
`80. On information and belief, Defendant will continue to infringe the
`
`’761 Patent unless enjoined.
`
`81. Defendant contributes to infringement of the ’761 Patent under 35
`
`U.S.C. § 271(c) inasmuch as it provides a component of the Infringing Products,
`
`e.g., HEMAMI, which constitutes a material part of Impossible Foods’ invention,
`
`to another, knowing the same to be especially made or especially adapted for use
`
`in infringement of the ’761 Patent.
`
`82. On information and belief, Defendant will continue to contribute to
`
`infringement of the ’761 Patent unless enjoined.
`
`22
`
`
`
`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 23 of 33 PageID #: 830
`
`83. Defendant actively encourages its business partners to make, use,
`
`sell, and/or offer for sale the Infringing Products. Defendant is aware of
`
`Impossible Foods’ proprietary IMPOSSIBLE BURGER. Moreover, Defendant is
`
`aware of the ’761 Patent. Despite such knowledge, Defendant has actively
`
`induced its business partners to make, use, sell, and/or offer for sale the Infringing
`
`Products in a way that constitutes infringement. Defendant has encouraged this
`
`infringement with a specific intent to cause its business partners and customers to
`
`infringe. Defendant’s acts thus constitute active inducement of patent
`
`infringement in violation of 35 U.S.C. § 271(b).
`
`84. On information and belief, Defendant will continue to induce
`
`infringement of the ’761 Patent unless enjoined.
`
`85. Defendant’s direct infringement, contributory infringement, and
`
`inducement of infringement have irreparably harmed Impossible Foods.
`
`86.
`
`Pursuant to 35 U.S.C. § 284, Impossible Foods is entitled to damages
`
`adequate to compensate for Defendant’s infringement.
`
`87. Defendant’s infringement has been and is willful and, pursuant to 35
`
`U.S.C. § 284, Impossible Foods is entitled to treble damages. Defendant’s willful
`
`infringement is based at least on Defendant’s knowledge of Impossible Foods, its
`
`manufacturing techniques, its products, and its patents (see, e.g., ¶¶ 26, 36-39,
`
`supra). Moreover, Defendant has had actual knowledge of its infringement of the
`
`23
`
`
`
`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 24 of 33 PageID #: 831
`
`’761 Patent at least since the filing of Impossible Foods’ original Complaint.
`
`Defendant’s conduct is egregious as it has continued offering, selling, making
`
`and/or using the Infringing Products despite knowledge of the infringement.
`
`Defendant has either willfully and wantonly infringed the ’761 Patent or has
`
`recklessly avoided knowledge of its own infringement, even when faced with
`
`knowledge of Impossible Foods’ own products and patents.
`
`88.
`
`This case is “exceptional” within the meaning of 35 U.S.C. § 285,
`
`and Impossible Foods is entitled to an award of attorneys’ fees.
`
`COUNT IV: INFRINGEMENT OF THE ’250 PATENT
`
`89.
`
`Impossible Foods incorporates and re-alleges ¶¶ 1-88 as though fully
`
`stated herein.
`
`90.
`
`Impossible Foods is the owner of all right, title, and interest in and to
`
`the ’250 Patent. Impossible Foods has the exclusive right to make, use, sell, and
`
`offer to sell any product embodying the ’250 Patent throughout the United States,
`
`and to import any product embodying the ’250 Patent into the United States.
`
`91.
`
`The ’250 Patent claims and describes an invention comprising a meat
`
`replica matrix comprising one or more plant proteins, a sugar selected from a list
`
`of sugars, at least one sulfur compound selected from a list of sulfur compounds,
`
`and 0.01%-5% (by weight of the meat replica matrix) of a non-animal heme-
`
`24
`
`
`
`Case 1:22-cv-00311-CFC Document 19 Filed 07/25/22 Page 25 of 33 PageID #: 832
`
`containing protein, wherein, upon cooking of the meat replica matrix, at least two
`
`volatile compounds are generated that are associated with a beef-like aroma.
`
`92. On information and belief, Defendant has been and is now infringing
`
`at least claim 1 of the ’250 Patent in the United States by, among other things,
`
`directly or through intermediaries, making, using, selling, and/or offering for sale
`
`the Infringing Products, which are covered by one or more claims of the ’250
`
`Patent, to the injury of Impossible Foods. In particular, the Infringing Products
`
`comprise a meat replica matrix comprising one or more plant proteins, a sugar
`
`selected from the list of sugars in claim 1 of the ’250 Patent, at least one sulfur
`
`compound selected from t
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