Climate

Impossible Foods’ future may rest on the fate of this tiny molecule

Impossible Foods has launched an offensive to protect its juicy recipe from carnivorous competitors.

Burger in a beaker

Who can use heme in their meatless meat?

Illustration: Christopher T. Fong/Protocol

In the small and fierce meatless-meat ecosystem, Impossible Foods has held one bloody advantage: its discovery that the molecule responsible for pinkish, juicy, coppery muscle can be grown in a lab. Tiny concentrations of that substance, known as heme, have made Impossible’s burger the reigning realistic meat substitute among chefs and food bloggers.

Now Motif FoodWorks, a much smaller industry player, is also producing heme and selling it as an ingredient for a meatless burger, sparking an unusual legal battle in the food tech industry. Motif FoodWorks has pitched itself as the maker of ingredients for countless Impossible replicas. “We'll brew up the next 100 hemes so that we can see many more Impossible Burgers in the next few years,” Jason Kelly, the founder of Motif’s former owner, Ginkgo Bioworks, said in 2019. (Motif has since become its own company, spun out of Ginkgo). In February 2022, the company signaled it was committed to the heme project by beginning construction on a new 65,000-square-foot research and production facility in Massachusetts.

One month after the new factory announcement, Impossible Foods sued Motif for patent infringement, becoming the first new food tech company to initiate a fight over intellectual property for meatless meat in the United States. (Beyond Meat, often cast as Impossible’s main competitor and the only new meatless meat food tech company to go public, does not rely on heme to create its meat simulacra).

The stakes are high for Impossible. A loss would dampen the company’s dominance of the meatless food chain and likely throw the entire ecosystem into chaos. If Impossible’s patent on its heme-based burger is thrown out, the resulting intellectual property will become vulnerable prey, leading to an increasingly vicious fight as small startups and big food companies alike battle to produce and sell heme in as many products and combinations as possible.

The outcome of this suit will determine not just Impossible’s position in the market, but also whether the company’s decision to structure itself and behave like a tech company can pay off in the food space. Unlike traditional food manufacturers, Impossible (which has remained private since its founding in 2011) has financed itself with investments from major tech venture capitalists like Khosla Ventures. An assignment search with the U.S. Patent and Trademark Office reveals 27 patents assigned to Impossible Foods; accumulating that number of patents is a practice common to engineering and software industries but unusual in the food world.

Motif and Impossible both declined to comment further than pointing Protocol to their legal filings.

“I think it’s huge. This is Impossible’s bread and butter. If they lose this patent — and maybe they’ve got others — but this obviously is one of their first out-of-the-gate patent attacks. If they lose this, this is troublesome. It means there will be competitors,” Michael Sitzman, an attorney and chair of U.S. life sciences patent litigation for DLA Piper, told Protocol.

Major meat producers have explored both starting their own meatless-meat lines and producing heme to supplement other foods and meat products, but they’ve been wary of Impossible’s patents.

“There’s a lot of companies watching this and getting very excited about it,” Sitzman said.

Impossible Burger Tiny concentrations of heme have made Impossible’s burger the reigning realistic meat substitute among chefs. Photo: Patrick T. Fallon/Bloomberg via Getty Images

Impossible is no doubt aware of this. “The early-stage companies that have matured and are getting their patents issued are trying to prevent these newer competitors from coming in and using what they came up with and competing against them with their own technology,” said Benjamin Hodges, a patent attorney at Foster Garvey in Seattle.

Ask anyone involved in this fight, and they’ll say it’s not only about money and taste. It’s about climate change: not just for the companies but also the investors. When Impossible was founded, it said it “seeks to restore biodiversity and reduce the impact of climate change by transforming the global food system,” according to the lawsuit.

But there’s no clear climate winner in this legal battle. Some basic background: More than one-third of carbon emissions come from the global food system, and plant-based beef substitutes produce at least four times less emissions than their beef equivalents. Plant-based meats use less of other resources, too. “The amount of water it takes to make a pound of apples versus a pound of beef is insane,” Patrick Gibney, a food science professor at Cornell University, said.

But meat substitutes currently make up a tiny fraction of grocery dollars spent (somewhere between 1% and 2%) and retail sales were basically flat in 2021, according to research from the Good Food Institute (a meatless-meat nonprofit advocacy group) and Spins retail sales data. That does not bode well for the food-tech industry or climate change.

A failed patent battle will likely unlock a new realm of heme-based products, increasing heme’s popularity and legitimacy in the grocery store. The competition could also force Impossible to innovate faster.

Yet it could quell further private investment from VCs in earlier-stage exploratory, groundbreaking food technologies, food science researchers told Protocol. And without continued investment in new ideas, it’s hard to imagine a world where emissions from the global food system dramatically decline.

“It will disincentivize any company from doing this,” Gibney said. “If you don’t own it, no one will continue to go in that direction.”

The story of heme

If a useful molecule can be found in nature and scientists can discover how that molecule is produced, it can probably be made in a lab: not synthesized into an artificial version, but literally producing by a living organism.

Take vanilla. Vanillin is the molecule in vanilla beans that produces natural flavor, but it can only be found in nature by harvesting vanilla, mostly from rare orchids in Madagascar, an expensive and arduous process with oft-dangerous consequences for the local ecology. As a result, most vanilla sold today is fake, artificially synthesized to taste and smell like vanillin.

Scientist making heme Heme is a naturally occurring molecule in all sorts of proteins.Photo: Impossible Foods

Now, actual vanillin can be produced by fermenting yeast in vats. Because we know how vanilla is formed in nature, food scientists have altered the genes of yeast strains typically used for fermentation in baking and beer-making to instead produce actual vanillin.

Impossible Foods has done the same for heme. Heme is a naturally occurring molecule in all sorts of proteins, including hemoglobin, which makes human blood red. It’s also found in the muscle tissues of animals — in myoglobin — and in much smaller quantities in plants like soy. What’s most important to Impossible is that it “gives meat its bloody taste when raw and creates the intense, meaty flavors and aromas when it’s cooked,” according to the lawsuit.

Using the root of the soy plant as a genetic blueprint, Impossible Foods modified the yeast genes so that when yeast ferments, it produces heme.

Impossible Foods absolutely has the right to patent a unique genetically modified yeast — it doesn’t occur in nature, and pharmaceutical companies have set the precedent for these patents for decades. But Motif FoodWorks does not produce heme using the exact same genetic edits to yeast; instead, its yeast-fermented heme comes from myoglobin proteins, created through fermentation based on a genetic blueprint from cows (not soy).

The battle begins

And so Impossible Foods is instead suing Motif for infringing on the patent for its burger recipe. This patent is the bottleneck that protects Impossible’s potential future dominance of the meatless-meat market, and that’s the patent in question here.

While sales of meatless meat flatlined in grocery stores in 2021, Impossible Foods has landed major deals with Burger King, Applebee’s, United and Delta Airlines, and also partnered in 2019 with OSI group to scale up manufacturing capacity. The company was valued at around $7 billion during its series H fundraising round in November and told Forbes in June that its retail sales increased 70% in the past year. All of those advances could mean very little if other companies suddenly take yeast-produced heme and add it to a burger.

Anything that’s obvious or has been made before cannot be claimed as intellectual property. But a truly unique combination of ingredients and ingredient ratios can technically be protected, and that’s Impossible’s intent here. It believes its patent means that no other company can combine heme with a specific list of other plant-based products to make a burger.

“A lot of the time, ingredient combinations are recipes, and would typically be a trade secret as opposed to a patent,” Scott Miller, a patent attorney for Sheppard Mullin, said. “I think it’s an interesting case given the nature of the patent claim involved, being the beef replica product itself as opposed to the proprietary process.”

Motif, in response to the lawsuit, denies improperly trying to compete with Impossible.

In a separate filing, known as an inter partes review, Motif asked the patent office to throw out Impossible’s patent entirely. That 97-page filing accuses Impossible of trying to patent a complicated veggie burger that is both obvious and has been made in the past. The patent does “not contain an inventive concept,” the lawyers argue.

The matchup between the firms of Wilson Sonsini (representing Impossible) and Quinn Emanuel (representing Motif) is a classic tech IP showdown. Wilson Sonsini is one of the go-to institutional firms for big tech companies, while Quinn Emanuel is notoriously aggressive, expensive and prepared for battle. The amount of work required for the fight underway will be costly for both parties, but especially for Motif, which moved quickly to file to invalidate Impossible’s patent.

Meatless meat products in a supermarket Impossible Foods is far from the only meatless-meat company.Photo: Angela Weiss/AFP

“They weren’t fearful of this, they weren’t worried about it; they knew they were going to aggressively attack this patent, and they filed that IPR right away,” Sitzman said.

By October, both sides — and all the food companies, tech companies, investors and lawyers that are watching and salivating with anticipation — will have their first signals about the future of the patent in question. Impossible Foods has until near the end of July of this year to respond to Motif’s IPR filing (though it is not required to respond), and then the patent office will have three months to decide whether to more seriously review it. A decision to review the patent could bode poorly for Impossible, according to the attorneys interviewed for this piece.

“If this fight goes Motif’s way, and the patent becomes invalid and we get some nice broad statements out of the decision: ‘This patent was obvious, all of this was disclosed in the public domain,’ et cetera,” Sitzman said, “then all of a sudden you’ve got a bunch of meat manufacturers and others who will be drooling.”

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