throbber
Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 1 of 20 PageID #: 1780
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`IMPOSSIBLE FOODS INC.,
`
`
`Plaintiff,
`
`
`MOTIF FOODWORKS, INC.,
`
`
`v.
`
`Defendant.
`
`
`
`
`
`
`
`
`
`C.A. No. 22-311 (CFC)
`
`
`
`
`)))))))))
`
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jeremy A. Tigan (#5239)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jtigan@morrisnichols.com
`
`Attorneys for Defendant Motif FoodWorks,
`Inc.
`
`
`DEFENDANT MOTIF FOODWORKS, INC.’S OPENING BRIEF
`IN SUPPORT OF ITS PARTIAL MOTION TO DISMISS
`PLAINTIFF’S SECOND AMENDED COMPLAINT
`
`
`
`CO COUNSEL:
`
`Joseph M. Paunovich
`Sandra L. Haberny
`Ryan Landes
`Sarah Cork
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`865 South Figueroa Street
`10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Wood
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`October 13, 2022
`
`
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 2 of 20 PageID #: 1781
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`
`
`TABLE OF CONTENTS
`
`
`INTRODUCTION ..................................................................................................... 1 
`NATURE AND STAGE OF THE PROCEEDINGS ................................................ 2 
`STATEMENT OF FACTS ........................................................................................ 3 
`ARGUMENT ............................................................................................................. 6 
`I. 
`LEGAL STANDARD ................................................................................... 6 
`II. 
`IMPOSSIBLE DOES NOT PLAUSIBLY ALLEGE THAT MOTIF
`INFRINGES .................................................................................................. 7 
`IMPOSSIBLE DOES NOT ALLEGE HOW MOTIF INFRINGES .......... 11 
`III. 
`CONCLUSION ........................................................................................................ 12 
`
`
`
`
`
`
`
`ii
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`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 3 of 20 PageID #: 1782
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`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Akzo Nobel Coatings, Inc. v. Dow Chem. Co.,
`811 F.3d 1334 (Fed. Cir. 2016) ............................................................................ 8
`Amgen Inc. v. Coherus Biosciences Inc.,
`No. 17-546-LPS-CJB, 2018 WL 1517689 (D. Del. Mar. 26, 2018),
`aff’d, 931 F.3d 1154 (Fed. Cir. 2019) ................................................................... 7
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) .............................................................................................. 6
`Bell Atlantic Corp. v. Twombly,
`550 U.S. 544 (2007) .............................................................................................. 6
`Boston Sci. Corp. v. Nevro Corp.,
`415 F. Supp. 3d 482 (D. Del. 2019) .................................................................... 11
`Bot M8 LLC v. Sony Corp. of Am.,
`4 F.4th 1342 (Fed. Cir. 2021) ............................................................... 6, 9, 10, 11
`Cumberland Pharms., Inc. v. Sagent Agila LLC,
`No. 12-825-LPS, 2013 WL 5913742 (D. Del. Nov. 1, 2013) .......................... 7, 8
`HSM Portfolio LLC v. Elpida Memory Inc.,
`160 F. Supp. 3d 708 (D. Del. 2016) ...................................................................... 9
`Moody v. Morris,
`608 F. Supp. 2d 575 (S.D.N.Y. 2009), aff’d, 407 Fed. App’x 434
`(Fed. Cir. 2011) ..................................................................................................... 7
`Nami v. Fauver,
`82 F.3d 63 (3d Cir. 1996) ..................................................................................... 6
`Ottah v. Fiat Chrysler,
`884 F.3d 1135 (Fed. Cir. 2018) ............................................................................ 7
`SIPCO, LLC v. Streetline, Inc.,
`230 F. Supp. 3d 351 (D. Del. 2017) .................................................................... 11
`
`
`
`iii
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 4 of 20 PageID #: 1783
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`
`
`SuperInterconnect Techs. LLC v. HP Inc.,
`No. 19-0169-CFC, 2019 WL 6895877 (D. Del. Dec. 18, 2019) ........................ 11
`Swirlate IP LLC v. Keep Truckin, Inc.,
`No. 20-1283-CFC, 2021 WL 3187571 (D. Del. July 28, 2021) ......................... 11
`Wleklinski v. Targus, Inc.,
`258 F. App’x 325 (Fed. Cir. 2007) ....................................................................... 8
`ZMI Corp. v. Cardiac Resuscitator Corp.,
`844 F.2d 1576 (Fed. Cir. 1988) ............................................................................ 7
`Rules
`Fed. R. Civ. P. 12(b)(6) .......................................................................................... 1, 6
`
`
`
`
`iv
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 5 of 20 PageID #: 1784
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`
`
`INTRODUCTION
`
`Pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Motif submits this motion to
`
`dismiss Plaintiff Impossible’s Second Amended Complaint (“SAC”) for failure to
`
`state a claim of infringement of the Impossible Patents.1
`
`There is no viable infringement claim for the Impossible Patents. A complaint
`
`for patent infringement must plausibly allege that the accused products meet the
`
`elements of the claims. If the allegations show that an element is missing, the
`
`complaint must be dismissed. Impossible not only fails to allege that Motif’s
`
`accused products meet the elements of the Impossible Patent claims, it alleges non-
`
`infringement of key limitations in each of the asserted claims at issue.
`
`The Impossible Patents at issue in this motion are directed to food products
`
`that purport to replicate meat and exclude animal proteins. Specifically, the
`
`compositions and methods claimed in the Impossible Patents must be “free of
`
`animal heme-containing protein” (’241 Patent), contain “no animal products” (’096
`
`Patent and ’761 Patent (cl. 12)), or require “non-animal heme-containing protein”
`
`(’250 and ’306 Patents). Despite the clear and unambiguous exclusion of animal
`
`proteins, Impossible alleges that Motif infringes because its products contain an
`
`
`1 The “Impossible Patents” herein refer to U.S. Patent Nos. 9,943,096 (“the
`’096 Patent”), 10,039,306 (“the ’306 Patent”), 11,013,250 (“the ’250 Patent”),
`11,224,241 (“the ’241 Patent”), and 10,863,761 (“the ’761 Patent”) claim 12.
`1
`
`
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 6 of 20 PageID #: 1785
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`
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`animal heme-containing protein. Specifically, the SAC expressly alleges as the
`
`basis for infringement that Motif’s accused products contain bovine myoglobin.
`
`This allegation is not only implausible, it is irreconcilable. Bovine refers to a
`
`cow, which even a child knows is an animal, and Impossible admits (as it must) that
`
`myoglobin is a heme-containing protein. Food products that contain bovine
`
`myoglobin therefore cannot plausibly be “free of animal heme-containing protein”
`
`and contain “no animal products,” nor can bovine myoglobin plausibly be “non-
`
`animal heme-containing protein.” Rather, Impossible alleges that Motif’s accused
`
`products contain the very crux of what the Impossible Patents exclude: animal heme-
`
`containing protein. Impossible has plead itself out of court.
`
`Claim construction is not necessary to resolve this motion. Because there is
`
`no reasonable view of the facts pled that would support a claim for relief, Counts I,
`
`II, VI, and VII of the SAC should be dismissed with prejudice in their entirety and
`
`Count V should be dismissed with prejudice as to the ’761 Patent, claim 12.2
`
`
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`On March 9, 2022, Impossible filed its initial Complaint alleging that Motif
`
`infringed the ’761 patent. D.I. 1. On July 25, 2022, the Court granted Impossible’s
`
`request for leave to file a First Amended Complaint alleging Motif infringed the
`
`
`2 If granted, Counts III and IV will remain in their entirety and Count V will
`remain for all ’761 Patent asserted claims other than dismissed claim 12.
`2
`
`
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 7 of 20 PageID #: 1786
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`
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`’096, ’306, ’250, and ’241 patents. D.I. 18. On September 6, 2022, the Court granted
`
`Impossible’s request for leave to file a Second Amended Complaint alleging Motif
`
`infringed the ’492 and ’652 patents. See D.I. 21.
`
`
`
`STATEMENT OF FACTS
`
`The Impossible Patent claims at issue in this motion are directed to plant-
`
`based, non-animal compositions and methods. For example, Impossible alleges that
`
`the patented food products it makes use a plant-based heme-containing protein called
`
`soy leghemoglobin, or LegH, that exists in soy plants and is not made in animals.
`
`SAC ¶¶14-15. Consistent with this plant-based, non-animal crux of the alleged
`
`inventions, Impossible alleges, in relevant part, for each of the Impossible Patents:
`
`
`
`
`
`
`
`
`
`“The ’241 Patent claims…an invention comprising a meat-like
`food product…free of animal heme-containing protein… .”
`SAC ¶139 (emphasis added); see also SAC, Ex. 7 at 77:53-78:58.
`
`“The ’096 Patent claims … an invention comprising a food flavor
`additive composition…[that] contains no animal products… .”
`SAC ¶50 (emphasis added); see also SAC, Ex. 1 at 73:46-58.
`
`“The ’306 Patent claims…a method for imparting a beef-like
`aroma to a meat replica matrix,…where the method comprises
`adding…a non-animal heme-containing protein to the meat
`replica matrix… .” SAC ¶64 (emphasis added); see also SAC,
`Ex. 2 at 123:11-25.
`
`“The ’250 Patent claims…a meat replica matrix comprising…a
`non-animal heme-containing protein…
`.”
` SAC ¶124
`(emphasis added); see also SAC, Ex. 6 at 121:61-122:64.
`
`
`
`3
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 8 of 20 PageID #: 1787
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`
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`Impossible’s infringement allegations for the ’761 Patent are plead more
`
`broadly, but claim 12 of the ’761 Patent shares the same exclusionary “no animal
`
`products” limitation as the ’096 Patent shown above.
`
`
`
`“The ’761 Patent claims…a beef replica product, which
`comprises … a heme-containing protein,” SAC ¶109 and claim
`12 specifically requires that the “beef replica product contains no
`animal products.” SAC, Ex. 5 at 50:26-27 (emphasis added).
`Turning to Impossible’s infringement allegations, the plausibility of the SAC
`
`hinges on the incorporation of a specific heme-containing protein in Motif’s accused
`
`HEMAMI product: bovine myoglobin. Specifically, Impossible alleges that Motif
`
`infringes the Impossible Patents because it has a “production facility…for
`
`fermentation,
`
`ingredient production,
`
`and
`
`finished product production,
`
`including…manufacturing the heme-containing bovine myoglobin included in
`
`HEMAMI, production of HEMAMI, and production of finished meat replica
`
`products integrating HEMAMI.” SAC ¶41 (emphasis added); see also id. ¶¶ 36, 53,
`
`67, 112, 127, 142. Impossible further alleges that “Defendant’s meat replica
`
`includes its HEMAMI ingredient. Defendant’s meat replica products (including but
`
`not limited to its burgers and sausage products, sometimes designated as the Motif
`
`BeefWorksTM Plant-Based Burger Patties and Plant-Based Ground and Motif
`
`PorkWorksTM) are hereinafter collectively referred to as ‘the Infringing Products.’”
`
`SAC ¶36.
`
`Impossible
`
`further alleges
`
`that “HEMAMI
`
`[and]
`
`Infringing
`
`Products…infringe, contain infringing ingredients, and/or are made by the use of
`4
`
`
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 9 of 20 PageID #: 1788
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`
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`processes or methods that infringe” and “inclusion of HEMAMI in meat replica
`
`products is a violation of Impossible Foods’ patent rights.” SAC ¶¶43-44; see also
`
`id. ¶¶ 53, 67, 112, 127, 142.
`
`Impossible further alleges “[o]n information and belief, HEMAMI contains
`
`the bovine myoglobin preparation that is the subject of the Motif GRAS Notice.”
`
`SAC ¶33. The Motif GRAS Notice, which is attached as Exhibit 8 to the SAC and
`
`therefore part of the pleading, provides that “Motif FoodWorks’ myoglobin
`
`ingredient is a liquid flavoring preparation (herein referred to as Myoglobin
`
`Preparation) containing myoglobin produced by fermentation from a modified strain
`
`of Pichia pastoris expressing the myoglobin gene from Bos taurus.” SAC ¶32; see
`
`also SAC, Ex. 8 at 5. It is common knowledge that Bos taurus is the Latin name for
`
`the domesticated cow.3 The Motif GRAS Notice further underscores that “[t]he
`
`myoglobin present in Motif FoodWorks Myoglobin Preparation is 100% identical
`
`to bovine myoglobin,” regardless of how it is produced. SAC, Ex. 8 at 22 (emphasis
`
`added); see also SAC ¶30 (“HEMAMI ‘tastes and smells like meat because it uses
`
`the same naturally occurring heme protein…’” that is found in a cow).
`
`
`
`Impossible’s SAC is devoid of any allegation as to how Motif’s bovine
`
`myoglobin—an animal heme-containing protein—could even plausibly satisfy the
`
`limitations at issue in the asserted claims excluding animal heme-containing protein.
`
`
`3 See https://www.vocabulary.com/dictionary/Bos%20taurus.
`5
`
`
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 10 of 20 PageID #: 1789
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`
`
`
`I.
`
`
`ARGUMENT
`
`LEGAL STANDARD
`
`Dismissal under Rule 12(b)(6) is appropriate where a complaint fails to allege
`
`“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
`
`Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when
`
`the plaintiff pleads factual content that allows the court to draw the reasonable
`
`inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
`
`556 U.S. 662, 678 (2009).
`
`In the patent infringement context, “a plaintiff cannot assert a plausible claim
`
`for infringement under the Iqbal/Twombly standard by reciting the claim elements
`
`and merely concluding that the accused product has those elements. There must be
`
`some factual allegations that, when taken as true, articulate why it is plausible that
`
`the accused product infringes the patent claim.” Bot M8 LLC v. Sony Corp. of Am.,
`
`4 F.4th 1342, 1353 (Fed. Cir. 2021). “[W]hile a patentee’s pleading obligations are
`
`not insurmountable, a patentee may subject its claims to early dismissal by pleading
`
`facts that are inconsistent with the requirements of its claims.” Id. at 1346.
`
`Moreover, a court is not obligated to accept as true allegations that are “self-
`
`evidently false[.]” Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).
`
`
`
`
`
`
`
`6
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 11 of 20 PageID #: 1790
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`
`
`II.
`
`
`
`IMPOSSIBLE DOES NOT PLAUSIBLY ALLEGE THAT MOTIF
`INFRINGES
`
`As a matter of both common sense and controlling law, a product with a
`
`particular ingredient cannot infringe a patent claim that forbids that ingredient.
`
`Indeed, it is black letter law that “infringement requires that every limitation of the
`
`patent claim must be found in the accused [product] either literally or equivalently.”
`
`ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1582 (Fed. Cir. 1988)
`
`(citations omitted). Although Impossible need not prove infringement at the
`
`pleading stage, because the SAC itself acknowledges that Motif’s accused HEMANI
`
`product and products incorporating it fall outside the scope of the claims, it is self-
`
`evident that it fails to state a claim.4
`
`This case is analogous to Cumberland Pharms., Inc. v. Sagent Agila LLC
`
`where the defendant moved to dismiss at the pleading stage because the asserted
`
`patent claims required a formulation “free from a chelating agent,” and the complaint
`
`
`4 See Ottah v. Fiat Chrysler, 884 F.3d 1135, 1141-42 (Fed. Cir. 2018)
`(affirming dismissal of complaint with prejudice because the patent claims required
`a “book holder” and could not plausibly cover a camera holder or any of a camera’s
`components or functions); Moody v. Morris, 608 F. Supp. 2d 575, 579 (S.D.N.Y.
`2009) (dismissing complaint with prejudice because claims required “captioning
`system” and accused system did “not rely on any captioning or subtitling system”),
`aff’d, 407 Fed. App’x 434 (Fed. Cir. 2011); Amgen Inc. v. Coherus Biosciences Inc.,
`No. 17-546-LPS-CJB, 2018 WL 1517689, at *4 (D. Del. Mar. 26, 2018) (dismissing
`complaint with prejudice where plaintiff admitted there was no literal infringement
`and prosecution history estoppel barred infringement under DOE), aff’d, 931 F.3d
`1154 (Fed. Cir. 2019).
`
`
`
`7
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 12 of 20 PageID #: 1791
`
`
`
`acknowledged that the accused product contained EDTA, “a chelating agent.” No.
`
`12-825-LPS, 2013 WL 5913742, at *1 (D. Del. Nov. 1, 2013). In opposition,
`
`Cumberland argued that neither the complaint nor the patent-in-suit was limited to
`
`an EDTA-free product and that claim construction was required on disputed factual
`
`matters. Id. at *2.
`
`The Cumberland court disagreed, finding that “there is no reasonable view of
`
`the facts pled in Cumberland’s complaint that would support a claim for relief.” Id.
`
`The court noted that “every claim of the [at issue] patent expressly requires a
`
`formulation that is ‘free of a chelating agent’ or ‘free from a chelating agent’.” Id.
`
`The court held that “[n]o claim construction is necessary in order to determine that
`
`‘free from a chelating agent’ means that a claimed composition may not include a
`
`chelating agent.” Id. And the complaint acknowledged that EDTA is a chelating
`
`agent. Id. at *3. As a result, the court held that the defendant could not plausibly
`
`infringe the patent at issue. Id.
`
`The Cumberland court also held that infringement under the doctrine of
`
`equivalents was barred “because a finding of infringement would vitiate the ‘free
`
`from a chelating agent’ claim limitation.” Id. Indeed, it is well settled that claim
`
`vitiation precludes infringement under the doctrine of equivalents where it “renders
`
`a claim limitation inconsequential or ineffective.” Akzo Nobel Coatings, Inc. v. Dow
`
`Chem. Co., 811 F.3d 1334, 1342 (Fed. Cir. 2016); see also Wleklinski v. Targus,
`
`
`
`8
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 13 of 20 PageID #: 1792
`
`
`
`Inc., 258 F. App’x 325, 329 (Fed. Cir. 2007) (where accused product “is the
`
`fundamental opposite of the claimed invention,” claim vitiation bars infringement
`
`under the doctrine of equivalents); HSM Portfolio LLC v. Elpida Memory Inc., 160
`
`F. Supp. 3d 708, 719 (D. Del. 2016) (claim vitiation barred infringement under
`
`doctrine of equivalents because “after is opposite of before, not equivalent”).
`
`The Cumberland decision is consistent with the Federal Circuit’s repeated
`
`confirmation that “a patentee may subject its claims to early dismissal by pleading
`
`facts that are inconsistent with the requirements of its claims.” See, e.g., Bot M8, 4
`
`F.4th at 1346, 1353-1356 (affirming dismissal of certain patents from complaint with
`
`prejudice where plaintiff’s “infringement claim [was] not even possible, much less
`
`plausible” and reversing dismissal of other patents from complaint where the district
`
`court acknowledged infringement of those patents was plausible but nevertheless
`
`dismissed). For example, for one dismissed patent, the asserted patent claims in Bot
`
`M8 required certain programs to be stored separately from the “motherboard” and
`
`its memory. Id. at 1353-1354. However, Bot M8 asserted in its complaint that the
`
`accused Sony programs were “stored on PlayStation 4…Serial Flash Memory,”
`
`which was part of the PS4 “motherboard.” Id. Affirming the district court’s
`
`dismissal of this patent, the Federal Circuit held that by making this allegation “Bot
`
`M8 has essentially pleaded itself out of court”:
`
`
`
`9
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 14 of 20 PageID #: 1793
`
`
`
`That allegation renders Bot M8’s infringement claim not even possible,
`much less plausible. While claim 1 requires that the game program and
`authentication program be stored together, separately from the
`motherboard, the FAC alleges that the authentication program is
`located on the PS4 motherboard itself.
`Under Iqbal/Twombly, allegations that are “merely consistent with”
`infringement are insufficient. Where, as here, the factual allegations
`are actually inconsistent with and contradict infringement, they are
`likewise insufficient to state a plausible claim.
`Id. (internal citation omitted) (italic emphasis in original).
`
`
`As in Cumberland and Bot M8, Motif’s accused HEMAMI product and
`
`products incorporating it cannot plausibly infringe the Impossible Patents. As
`
`explained above, Impossible alleges that the basis for Motif’s infringement is the
`
`heme-containing protein in Motif’s HEMAMI product, which is bovine myoglobin.
`
`SAC ¶¶36, 41, 43-44, 53, 67, 112, 127, 142. And the bovine myoglobin in
`
`HEMAMI is an animal heme-containing protein; in fact, it is “the same naturally
`
`occurring heme protein” that is found in a cow. SAC ¶¶30, 41; see also FAC, Ex. 8
`
`at 22 (“The myoglobin present in Motif FoodWorks Myoglobin Preparation is 100%
`
`identical to bovine myoglobin.”). These allegations are plainly irreconcilable with
`
`the claimed compositions and methods of the at issue Impossible Patents, which
`
`must be “free of animal heme-containing protein” (’241 Patent), contain “no
`
`animal products” (’096 Patent and ’761 Patent (cl. 12)), or require “non-animal
`
`heme-containing protein” (’250 and ’306 Patents). An animal heme-containing
`
`protein (like bovine myoglobin) necessarily is not “free” of animal heme-containing
`
`
`
`10
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 15 of 20 PageID #: 1794
`
`
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`protein or “no” animal products. And an “animal” heme-containing protein is the
`
`opposite of a “non-animal” heme-containing protein. In sum, there is no plausible
`
`claim for infringement as a matter of law.
`
`III.
`
`
`IMPOSSIBLE DOES NOT ALLEGE HOW MOTIF INFRINGES
`
`A plaintiff must do more than merely recite claim elements and conclude that
`
`the accused product has those elements. The complaint must allege how the
`
`defendant plausibly infringes with facts connecting the product to the asserted
`
`claims. Bot M8 LLC, 4 F.4th at 1353; see also Boston Sci. Corp. v. Nevro Corp.,
`
`415 F. Supp. 3d 482, 489 (D. Del. 2019) (dismissing certain patent counts because
`
`the complaint provided only general information about the accused products, and
`
`asserted without explanation that the accused products meet each element); SIPCO,
`
`LLC v. Streetline, Inc., 230 F. Supp. 3d 351, 353 (D. Del. 2017) (dismissing because
`
`“[t]he complaint contains no attempt to connect anything in the patent claims to
`
`anything about any of the accused products.”); Swirlate IP LLC v. Keep Truckin,
`
`Inc., No. 20-1283-CFC, 2021 WL 3187571, at *2 (D. Del. July 28, 2021) (dismissing
`
`because “infringement allegations consist of: identifying the accused product,
`
`pointing to websites that provide general information about the accused product and
`
`[public statements], and asserting without explanation that the [] accused product
`
`satisfy each and every claim limitation”); SuperInterconnect Techs. LLC v. HP Inc.,
`
`No. 19-0169-CFC, 2019 WL 6895877, at *2 (D. Del. Dec. 18, 2019) (dismissing
`
`
`
`11
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 16 of 20 PageID #: 1795
`
`
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`because complaint allegations “fail to allege facts showing how the technology, the
`
`standard, or the accused product plausibly reads on the claim elements”).
`
`Like the cases above, Impossible’s claims should be dismissed for the
`
`additional reason that the SAC does not allege how Motif’s HEMAMI product or
`
`products incorporating it infringe the Impossible Patents, much less meet the
`
`exclusionary claim limitations discussed above. See SAC ¶¶26-33, 40-41, 43-44.
`
`Instead, Impossible alleges “upon information and belief” that Motif infringes by
`
`parroting the claim language with nothing more. SAC ¶¶50-51, 53, 64-65, 67, 109-
`
`110, 112, 124-125, 127, 139-140, 142. These allegations fall woefully short of the
`
`minimum pleading standard—and, as explained above, they are fundamentally
`
`contradicted by allegations showing the accused products do not infringe.
`
`
`
`CONCLUSION
`
`For the reasons stated herein, Motif’s motion should be granted dismissing
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`Counts I, II, VI, and VII of the SAC with prejudice in their entirety and Count V
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`with prejudice as to claim 12 of the ’761 Patent.
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`
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`12
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`

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`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 17 of 20 PageID #: 1796
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jeremy A. Tigan
`
`
`
`
`
`Jeremy A. Tigan (#5239)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jtigan@morrisnichols.com
`
`Attorneys for Defendant Motif FoodWorks,
`Inc.
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`
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`CO COUNSEL:
`
`Joseph M. Paunovich
`Sandra L. Haberny
`Ryan Landes
`Sarah Cork
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`865 South Figueroa Street
`10th Floor
`Los Angeles, CA 90017
`(213) 443-3000
`
`Stephen Wood
`QUINN EMANUEL URQUHART
` & SULLIVAN, LLP
`2755 E. Cottonwood Parkway
`Suite 430
`Salt Lake City, UT 84121
`(801) 515-7300
`
`October 13, 2022
`
`
`
`
`13
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 18 of 20 PageID #: 1797
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`
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`WORD COUNT CERTIFICATION
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`The undersigned counsel hereby certifies that the foregoing document
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`contains 2,746 words, which were counted by using the word count feature in
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`Microsoft Word, in 14-point Times New Roman font. The word count includes only
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`the body of the document. The word count does not include the cover page, tables
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`of contents and authorities, or the counsel blocks.
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`/s/ Jeremy A. Tigan
`
`
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`
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`Jeremy A. Tigan (#5239)
`
`
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`14
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`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 19 of 20 PageID #: 1798
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`
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on October 13, 2022, I caused the foregoing to be
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`electronically filed with the Clerk of the Court using CM/ECF, which will send
`
`notification of such filing to all registered participants.
`
`I further certify that I caused copies of the foregoing document to be served
`
`on October 13, 2022, upon the following in the manner indicated:
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`Ian R. Liston, Esquire
`Jennifer A. Ward, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`222 Delaware Avenue, Suite 800
`Wilmington, DE 19801
`Attorneys for Plaintiff Impossible Foods Inc.
`
`Matthew R. Reed, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`Palo Alto, CA 94304
`Attorneys for Plaintiff Impossible Foods Inc.
`
`Wendy L. Devine, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`One Market Plaza
`Spear Tower, Suite 3300
`San Francisco, CA 94105
`Attorneys for Plaintiff Impossible Foods Inc.
`
`Lorelei P. Westin, Esquire
`Christiana Garrett, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`12235 El Camino Real
`San Diego, CA 92130
`Attorneys for Plaintiff Impossible Foods Inc.
`
`
`
`
`

`

`Case 1:22-cv-00311-CFC Document 25 Filed 10/13/22 Page 20 of 20 PageID #: 1799
`
`
`
`G. Edward Powell III, Esquire
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`1700 K Street NW, Fifth Floor
`Washington, DC 20006
`Attorneys for Plaintiff Impossible Foods Inc.
`
`
`
`VIA ELECTRONIC MAIL
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`/s/ Jeremy A. Tigan
`
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`Jeremy A. Tigan (#5239)
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`2
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`

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