Motif FoodWorks has accused Impossible Foods of hiring private investigators to pose as potential customers to “covertly” obtain info about Motif’s products and “circumvent the discovery process” in ongoing IP litigation between the warring foodtech companies.
Impossible Foods, however, says there is nothing unethical going on and claims Motif’s “exaggerated rhetoric” is “nothing more than an attempt… to distract from its blatant patent infringement.”
The legal dispute between the two food tech companies began in March 2022, when Impossible filed a lawsuit* accusing Motif of infringing a patent covering the use of its flagship ‘heme’ ingredient in meat substitutes. The case is being watched closely in the alt meat industry, with Impossible accusing Motif of IP theft and Motif arguing that the patent should never have been issued in the first place.
In court documents filed this week, Motif alleged that it had been subjected to repeated attempts by private investigators, “which we are concerned were hired by Impossible or its agents, to obtain information and evidence about Motif’s business and products under the guise of being interested third-party customers or business partners.”
If done at the “behest of Impossible or any of its agents, these efforts are serious violations of the American Bar Association and Delaware Lawyers’ Rules of Professional Conduct, the Federal Rules of Civil Procedure and the Court’s inherent powers to manage this case,” claimed Motif.
Impossible Foods has not responded to requests from AgFunder News (AFN) for comment, while a Motif spokesperson told us: “We’ll let the court documents speak for themselves.”
According to signed declarations from employees filed with the court in Delaware, Motif has been approached via email and in person at a number of trade shows by individuals expressing interest in their products that seemed suspicious.
In one instance, director of business development Joanne Kennedy said Motif had been approached by an individual called Sarah Jamil representing a company called Food4Thought. In a Zoom call with executives at Motif set up by Kennedy, the Food4Thought representatives did not appear by video and Sarah Jamil’s last name came up as ‘Nasir.’
“Sometime after the call began, the Zoom interface showed that the name Sarah Nasir had changed to Sarah Jamil,” said Kennedy. “After the call, I looked up the name Sarah Nasir on LinkedIn and located a person with that name who appeared to be the managing partner and cofounder of a private investigation firm called Integrity One Solutions.”
Nasir has not responded to a request for comment.
Suspicious approaches at trade shows
In another instance, a man purporting to be from a plant-based food company sourcing products for a leading fast-food chain exhibited suspicious behavior at the Future Food-Tech show in San Francisco in 2022, according to a declaration from comms manager Julia Dacri filed May 23.
“He asked that Motif send samples of its burger food products directly to his colleague’s house. In my experience, this is not typical behavior for someone representing a fast food chain.” She later looked him up on Linkedln and found a page in which he described himself as president at California Active Shooter Academy LLC.
According to Dacri: “I found it odd that his Linkedln page appeared to be focused on the firearms space and contained no reference to the food space.”
Motif: Impossible is attempting to circumvent the discovery process
According to Motif’s legal counsel, Delaware Lawyers’ Rules of Professional Conduct “prohibit counsel and their agents from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”
It should go without saying that “no such consent or court order has been provided or entered, and Motif would vehemently object to any such effort by Impossible, its counsel or their agents to circumvent the discovery process in this case by engaging in covert investigations,” added Motif’s lawyers.
Impossible Foods: ‘No ethical violation’
In a heavily redacted May 23 filing, however, Impossible Foods said that it was “common, and ethical, for patent owners to obtain and evaluate infringing products— such as Motif’s—in the marketplace.”
The filing states: “Because Motif was marketing itself solely to businesses, not direct to consumers, [REDACTED] created a limited liability company called Food4Thought, LLC to permit [REDACTED] to interact with Motif as a potential customer, including at industry trade shows.”
“Citing Apple Corps Ltd. v. Int’l Collectors Soc’y, the Southern District of New York found no ethical violation where investigators posed as interior designers—the defendant’s typical customers—to access a showroom open only to members of the trade and spoke with defendant’s employees to investigate potential trademark infringement.”
Impossible Foods went on to cite a ruling in another case (Gidatex, S.r.L. v. Campaniello Imports) which found that the “use of private investigators posing as consumers and speaking to nominal parties who are not involved in any aspect of the litigation does not constitute an end-run around the attorney/client privilege where investigators did not induce a party to make statements it would not otherwise have made in the ordinary course of business. Such is the case here.”
What is the IP dispute about?
The ongoing legal dispute between Impossible and Motif relates to the use of heme proteins in plant-based meat alternatives.
Impossible Foods’ heme protein is identical to soy leghemoglobin, a protein found in nodules attached to the roots of nitrogen-fixing plants such as soy; while Motif FoodWorks’ HEMAMI heme protein is identical to bovine myoglobin, which is found in the muscle tissue of cows.
Both proteins are produced via precision fermentation using a genetically engineered strain of yeast to express heme-containing proteins that impart ‘meaty’ flavors and deep red colors to meat alternatives. However, they are not exactly the same, according to Motif, which noted in a recent court filing that Impossible’s patents cover meat substitutes that are “free of animal heme-containing protein.”
According to Motif FoodWorks: “If Impossible wins [its lawsuit in Delaware], it means no one else can experiment with heme in the plant-based industry.”
According to Impossible Foods: “We have always welcomed and embraced competition, but… we do not tolerate theft of our technology.”
*The case is Impossible Foods v Motif FoodWorks. Case #1:22-cv-00311 filed March 9, 2022 in Delaware.