Why the Prosecution Failed in Whitmer Kidnapping Plot

to kidnap Michigan Governor Gretchen Whitmer. U s attorney Andrew Bird said he believed the prosecution presented a strong case. Obviously we're disappointed with the outcome. I thought we had the jury to convict fandor's about basically events we put forward. But we still believe in the jury system. The defense lawyers portrayed the men as unsophisticated weekend warriors, often stoned on marijuana and prone to wild talk, who were entrapped

by the FBI and it's sting operation. Michael Hills represented Brandon Concerta, who was acquitted. Our governor was never in any danger, and I think the jury, even though they didn't get all of it, you know, they smelled enough of it. I think what the FBI did is unconstanably. This is what I think, and I think the jury just sent them a message loud and clear. My guest is Matthew Schneider, former U S Attorney for the Eastern District of Michigan and a partner at Huntingmanon. Many were

stunned by the verdict. Were you I was, like a lot of people were, And I'm a former prosecutor. I work as a defense attorney, and prosecutors and defense attorneys alike were stunned at this, and they said that openly it was surprising. The government put forth a very strong case and it's not the result that a lot of people predicted. Two were acquitted, they were hung on another two. What were the differences that they would equip some and

hang on others. There were some significant differences. The two that received the hung verdict, those were viewed as kind of the ringleaders of this, and the jury found that there was not enough evidence to convict them. The two that were acquitted. As for those defendants, those were the defendants who did not actually go to the governor's house

and scope it out. There was an event where people went to the governor's house or residents and kind of watched it, fouled around the driveways and used night vision goggles and tried to scope out the place. Well, those two defendants, they didn't participate in that, and that might have been a dividing line that the jury felt that they should be acquitted. Daniel Harris, one of the two acquitted, took the stand in his own defense, a risky move

that apparently worked. What did you see in his testimony? Well, we don't know if that's what worked or not, because

the jury hasn't said. The jurors went out and they didn't speak to anybody, So we don't know if it was because they believed in the entrapment theory of the defense, or that they believed in the defense theory that these guys were just kind of making it up in big talkers, or that they were kind of, you know, stoned and not very sophisticated and not clever enough to actually do this.

We're not sure. We do know that Harris was acquitted of the weapon's charge, which was possessioned of a short barrel rifle, and that charge seemed to be that there was plenty of evidence for that and for the jury to acquit him of that seems quite striking because there was plenty of proofs that he had the gun. It's not like the kidnapping plot where there was discussion either you had the gun or you didn't, and they found that he didn't and was he arrested with the gun

or not. There was a lot of discussion about the type of gun it was and the position it was, and whether or not it was in pieces at the time. But you know a weapon even if it's in separate pieces that you know the receiver. If the receiver is what you have, that's still classified as a weapon under federal law. But there was explanation given in this testimony that always in different pieces, and perhaps that's something that

the jury took into account. So there were thirteen days of evidence undercover FBI agents and FBI informant to co defendants who pleaded guilty. They were secretly recorded conversations, violence, social media posts, etcetera, etcetera. So it seemed like the prosecution had a lot of evidence. Where did it fail? Well,

they did have a lot of evidence. But if you're going to be looking at this case in the future as to how this case was brought, it will be a big question about did they have to take down this case. Now, did they have to end the investigation when they did, and what would have been the result if instead of ending the investigation they would have continued. Would they have developed, for example, evidence from the defendants that they had set a firm date for the kidnapping,

which did not happen in this case. But if they would have kept the investigation of lives, maybe they would have gotten more evidence convince the jury. Now, we all understand that investigations sometimes have to be taken down for officers safety and things like that, but still that's going to be a very nagging question in the eyes of the Justice Department for many cases moving forward. We just go back a bit and explain when they decided to

end the FBI investigation. At what point they ended it as the defendants were walking into a restaurant to have launch. Okay, so that appears to be an innocuous time, but it was a time when law enforcement could get together and it was an open area where they could all swoop

in and have a safe arrest. That left out some evidence that I think might have come forth if they would have continued the recording devices and continued the conversations the FBI ending the operation before they had evidence of the defendants making definitive plans to kidnap the governor. How did that help the defense? That is the defense argument, and that they're saying, this is all a bunch of talk. They didn't have any actions, and there's nothing that the

government can show for it. Now, look, there's still two defendants still to be retried, and there are two defendants who pleaded guilty. And when you plead guilty in federal court, you go into the courtroom and you say I'm pleading guilty because I am guilty. And those defendants testified and they said that they were guilty of this conspiracy. They did commit the crime, and they were testifying so that they could help the prosecution and hopefully get a sentence reduction.

That makes it even more surprising that the jury didn't believe them. Oftentimes, jurors don't like cooperators, they don't like people who were once on one side and then switched to the other side. The defense painted them as liars who were only trying to get a sentence reduction, and that it happens in every case. This case, also, however, had undercover FBI informant, There was an informant, there was an agent. There was plenty of testimony here and plenty

of evidence. But the defense theory, again, we don't know because we don't know what the jury has to say, but it appears that it worked very favorable in the defense's mind. The lawyer for Brandon concert A blamed overly aggressive FBI informans. He said, I think what the FBI did is unconscionable, and I think the jury just sent them a message loud and clear. Is that the case because they hung on two of the defendants. Well, if they were loud and clear unconscionable, you would have had

four acquittals, and we didn't have that. What we had is a jury saying I can find these two who were not present at the stake out of the Governor's house not guilty, but I'm not sure, and we can't reach a verdict on the other two. And we also, as I indicated, had to be im plead guilty. So that really remains to be seen. The government is going to go back to square one and try this case again,

which is not unusual. I mean John Gotti, for example, was tried four times by the Justice Department, So it's not surprising that they would give this another shot with a new jury, rush instructions, fresh arguments. Do you think the prosecution will try to present the case differently, Yes, I do, because the jury asked a lot of questions about the weapons involved in the explosives. Well, jurors don't ask questions if they understand all the evidence and the

presentation was flawless. They only ask questions if they don't understand what just took place. And so I'm certain that the government will be doing a closer explanation about the bombs and that type of evidence in this next retrial. The jury pool was drawn from a twenty two county region in western and northern Michigan that is largely rural,

Republican and conservative. Is it possible that the prosecution just can't get a jury that will convict in this case, Well, the prosecution picked a jury along with the defense, and certainly some of the members of the jury, a lot of them actually owned weapons. A lot of them expressed, you know, some mistrust for government entities, but not overly so that would kick them off the jury a pool.

But I think you have a lot of people in this jury pool who don't like the government, and you know you have a constitutional right to dislike Governor Whitmer or even hate her. That's your constitutional right. People hate people love her. The fact is is what no one should take from this verdict is that it's okay to do harm to a public official, because it's not okay to threaten to kidnap Governor Whitmer. The only thing you can take from this verdict is that the government failed

to convince the jury beyond a reasonable doubt. Some politicians have expressed fears about these acquittals. So, for example, Michigan State Representative Lori Phutsky tweeted that a man who threatened to kill her in was acquitted. Quote, the next time you ask why we can't get good people to run for office, consider today's verdict. This won't be taken seriously until someone dies. Do these acquittals send out a message

that you're not going to be held accountable. That's going to be a great question after the retrial of this case, because these two defendants are still out there now. If those defendants are found not guilty, a lot of questions will be asked about the safety of public officials. But we're not quite there yet, so I don't think we're quite in the position to make those calculations or conclusions so far. Did you see a great difference in the way the defense attorneys handled the case. Each of the

defense attorneys took a different, slightly different approach. Some of them really hammered on the fact that there were government informants, and the government informants and the FBI was driving this case from the beginning to the end. Maybe that's what the jury believed and caught onto. Other times, defense attorneys really hit on the issue that the defendants were not competent.

They raised a bunch of other things that they could do to the governor other than kidnapper, such as that they would cut all the trees down between Indiana in Michigan to prevent law enforcement from getting there fast enough. Well, it's really fanciful. They also talked about tying a balloon to the governor and toting her away. No one really

believes that that could happen. So the defense theory was, if they're going to make up those type of theories that are really impossible, kidnapping the governor is just another one of those theories and it shouldn't be believed, and that was part of the arguments made in this case. I guess this does show that the jury really considered each of the defendants individually. They certainly did, and if they hadn't, this would have been a quick verdict. But

they came back over several days. They took a lot of time, They asked questions that were very specific to the defendant's charged with the weapons, for example, and it looks like they did deliberate and take a lot of time. Of course, you know, when the jury came back and they couldn't reach a verdict, the expressions on their faces

was certainly one of frustration. And if you have to sit inside a room with twelve people that you don't know for five days straight and you're disagreeing with them, it has to be very frustrating, definitely. So how big a blow would you say this is to the Justice Department, which has made domestic terror of priority after January six? It certainly is not helpful, right. The Justice Department definitely wanted to have convictions here. They were touting the security

and strength of their evidence. It didn't work out for them. One thing that you should think about as well, is it's not just what they said about the evidence, but when the evidence was played in court it came out a little bit differently. For example, some of these threats towards Governor Whimer. You know, when they actually played the

tape of the recording, the defendants were laughing. We don't laugh if you're serious about that, and so there was some reason to believe that there was some joking going on about this. Of course, there were other times when very sinister things were said about hurting the governor and

no one was laughing at all. So on both sides, each side had some arguments there is there anything the government can do on the retrial to make the witnesses the informants more believable, But they can't go back and change the evidence. Then what's done is done is because this case was taken down at this particular time, with these particular defendants involved, and so that can't be changed. They can, however, have different questions or additional questions asked

for potential jurors. Some of the jurors in this trial were asked very very little. In fact, one of the last people into the jury box, I think he was asked two questions. And once I heard that, and I was listening to the testimony, I thought, who the heck is this guy? We don't even really know who this person is, and now he's on the jury. I don't know if he favors the government or he favors the defense. If you were a trial lawyer, you would step up

and say, hold on a second year, honor. I've got a few more questions, and I think we will probably see the at on both sides in the future. Does this showcase the difficulties the government has with infiltrating right wing groups and developing cases without infringing on First and

Second Amendment rights? It certainly does. And this is a real fine line because it's not the first time that the government has brought a case that is similar to this, where it's churched people with government extremism and they've found acquittals at the end of the road. So yes, it's certainly something that the government has to take into account that people have the First Amendment, they have the Second Amendment,

and in fact, this was covered in the trial. When you are making a bomb for fun, because some people do that, and you're you're just making explosives. That's not necessarily a weapon of mass destruction. But there was testimony about the fact that when you take a bomb or an explosive device and you put items in it like bbs or pennies are things that can fragment and injure people. That's a different type of weapon. So all of these things the government will be looking at in the future.

And it is truly a balanced thing between knowing when you're prosecuting somebody who's done wrong and prosecuting somebody improperly because they've just exercised their First or Second Amendment rights. Matthew, hasn't been decided that they're going to retry them, or

is there any question about it. It hasn't been formally decided, but nor What always happens after this is the judge enters a verdict of mistrial, and that hasn't yet happened on the dock at Chet, but the judge will do that, and then the judge will study scheduling date for when

the next dates are. The current U S Attorney in the Western District indicated that we have more work to do and we've got another trial coming up, So he's telegraphed that, and I would think, given the Justice Department's past record on retrials, that there's really no reason that they wouldn't retrial this case. Again, given the fact that the jury returned to split verdict and opened the door for that to happen. What kind of message would it send out if the government didn't retry these two It

would show that they're giving up on the case. And you know, some in the defense bar would say that's good. They're realizing the conclusion that the FBI and the government overreached and they should give up. And certainly that is an argument that has been put forth. But another argument is is that they have another ability to talk with the jurors now, this time only with two defendants, and that will be easier than with four defendants, will be

less confusing, there'll be less evidence in the record. They'll be able to focus only on these two folks and then let the chips ball where they may. Thanks Matthew. That's Matthew Schneider, former U S Attorney for the Eastern District of Michigan and a partner at Honigman. President Biden is coming off the victory of Katangi Brown Jackson's confirmation to the Supreme Court, with a backlog of lower court vacancies that don't have appending nominee and the midterm elections

ahead that could end the democrats narrow Senate majority. Joining me is Madison Alder Bloomberg Law reporter start by telling us how quickly Biden moved to fill judicial vacancies in his first year in office. In his first twelve months in office, Biden outpaced every president since John F. Kennedy with his appointment. He moved at a really record paced here, even outpacing Trump, who definitely made judicial nominations a priority. So Biden got off to a really good start in

year one. In your two, he now had a Supreme Court va can see the fill and that took up a lot of time for the White House and for the Senate to deal with. So now Biden is looking at a lot of vacancies to fill this year, and that's made a little bit more difficult with mid terms right around the corner. Has Biden made any new lower

court nominations since Justice Stephen Bryan announced his retirement. Yes, on February second, he made just one nomination to a circuit court, but really nominations have been to and far between during that process. So now Biden is looking at several vacancies at the circuit court level, about nine team that don't have a nomination pending, because he definitely has an opportunity to make an impact. They're looking towards the

end of the year. Was it deliberate that he didn't make any new nominations or was it because of the whole process of having a Supreme Court nomination and shepherding that through. I think the Supreme Court nomination takes up a lot of oxygen in the room. But if Biden wants to make an impact on lower court nominations, new nominations are going to have to come from the White

House here pretty soon. To give the Senate nomination to work on before mid terms kind of take over and take up a lot of senator's time when they're when they're at home campaigning. So let's talk about how many openings there are. There are three seats on the ninth and first circuit, this is without a nominee, two seats on the first, second, fourth, fifth, and seventh, and one seat on the third, sixth, tenth, and d C circuit.

That's a lot of seats. Is that just waiting for the three months for Jackson's nomination to come through or did they slow down before that? So these have been building up, Definitely, These didn't just occurred during Jackson's nomination and far announcement that he would retire UM. But it is building up now and some of these have built up during that time period. So now this is this is what the White House is really going to be

looking to towards the end of this year. Tell us about the most high profile vacancy is Jackson's seat on the d C circuit and there's already one nominee in play. He set there. Tell us about that nominee first. So the nominee in place there already is Michelle Child. She is a South Carolina's District judge Seddle judge UM in South Carolina, and she was being considered, if you remember, as a candidate for the Supreme Court. Uh, they paused

her nomination process. She was actually going to have a hearing. The Judiciary Committee had planned to have her have a hearing, and when she was under consideration, so the seat, they paused that. So her nomination will be one of the circuit nominations the Judiciary Committee can address when it comes back after after recess. But then Biden also has another opportunity on on the DC Circuit, and that's Cantanti Brown

Jackson's seat on the DC Circuit. Her elevation opens up another vacancy and he now has two seats he can he can fill on on that court, which is often seen as the second highest because it involves a lot of disputes in Balti agencies in Congress, and it's a it's a theme, is a very important court. Some groups are already posturing and making suggestions about what they want

to see on that court. Right We just had a process where we were considering someone for that seat, and a lot of groups were making suggestions before Child was nominated about who they would like to see in in that kind of a role. I reported in September that Depect Cuta, who is the founder of boutique Appellent firm Um, and Karla Gilbride, who's a senior attorney at Public Justice,

were both thought to be under consideration for that vacancy. Ultimately, Child was nominated, but given that they just considered nominated to the seat if there was anybody that was considered for that seat, that might be someone that they think about for this time around as well. I spoke to a couple of progressive groups, and you know, they would really like to see someone who maybe brings a different

type of diversity to the Court than Child. The Child was criticized by progressives during that process of considering her for the Supreme Court for her representation of employers, and some of these progressive groups would like to see someone maybe with a pellet practice or a working administrative law work representing consumer interests. So those are some areas that

are being talked about. Is a potential background, characteristics or experience for Biden's pick medicine who is doing the selecting of these nominees. So the DC circuit is unique in the fact that there's no senators that are attached to DC, so the White House doesn't have to deal with senators interest now at the circuit level, that hasn't been the

practice for several years now. During the Trump administration, Republicans in the Senate stopped treating home state senators support as a veto on nominees, so that hasn't been the case at the circuit level for a few years now, but the DC Circuit has always been that way, and you know, even if the White House are reaching out to courtesy, that's not something that happens at the DC Circuit level

just because there aren't senators there. So they really have, you know, kind of a blank slate here in terms of who they could select for for the seat. And there's some pressure to appoint the circuit's first Hispanic as well. Correct, Yeah, the Mexican American Legal Defense and Education Fund has apparded names, the reported names dividings for Judge David Tatle's seats, which

is the seat that Michelle Child was nominated to. But now that there's another opening, uh, you know, they would like to see the court's first Hispanic appointed to that seat too. So that's another element for for the administrations to be considering here. The Judiciary Committee has split eleven Republicans eleven Democrats. Are Republicans causing delays when they don't

vote for the nominees. Yes, there are a few nominees right now who are going to require a discharge petition on their nominations that we just saw this with Stanji bon Jackson nomination as well. This means the committee deadlocks and Ben Schumer files a discharged motion, and then that vote on the discharged motion is something that happens in the full Senate, So instead of having two votes on your nomination closer to end debate, in the final confirmation vote,

you end up having three votes on the floor. So it just takes up a little bit more time, but ultimately these nominees can get confirmed since time seems to be of the essence. Now, do the people you've talked to think that it's possible for Biden to fill these nineteen circuit court seats plus depending ones before the mid terms? Yeah.

I talked to John Collins, who's a professor at George Washington University who focuses on tracking judicial nominations, and he told me that he thinks that there is an opportunity for Biden to have a year like he had, but nominating people as soon as possible is going to be a really important piece of that and making sure that there are nominees in the pipeline for the Senate to consider.

The Senate Judiciary Chair Dick Durbin said that Majority Leader Chuck Schumer has his hands full with the sixteen district and Appeals Court nominees awaiting votes on the Senate floor. So that procedural issue with six of them really takes up a lot of time on the Senate floor. It does. Each of these votes takes up real hours of the Senate time. And uh, Jeremy Durban told me as much. Schumer has his handsful in terms of getting these votes scheduled and and and the hours of that will take

when they come back from recess. And then Durban in committee has about eight nominees to consider. But after those eight nominees he will have run out of his list from the White House, which is why the White House nominating more people to be seech is so important. Let's talk about the this circuits that could flip. Yeah, so Biden has one opportunity here to split a circuit, to change the balance on on a circuit. So the third circuit,

there is one Republican appointee leaving that court. If Biden replaces that appointee, which is own, the circuit will be

split seven seven. So we'll shift the balance there from a Republican appointed majority to a split courts and evenly divided court between Republican and Democratic appointees and I should make sure to note that a party of appointing president isn't always an exact proxy for judges ideology, but it is one of the only indicators that we have, so it can be helpful for judging how something like on bank rehearing will will go when the entire court is

deciding an issue. The circuits that are now Republican majority are the Fifth, the six, seven, eight, and the eleventh. That's correct. Does it appear as if the mid terms, if the Republicans take back the Senate, how difficult is it going to be for Biden to get his nominees through. I'm glad you bout that up, because that is really

what is being people moving. The progressive groups that I've I've spoken to our groups that watched judicial nominations, professors that watch judicial nominations really say that that is the important factor here because if it's the Senate changes hands, there's a very high likelihood that nominations are going to become much more difficult for the administration, and Republicans have promised as much. Lindsey Graham kind of alluded to this

during Jackson's vote in the committee. He said the process that the Democrats started will rear its head if Republicans are in charge and promise they would talk about studies differently. You know, that obviously remains to be seen what what that would look like, but we can use the Obama administration as kind of proxy. And Republicans really stymied Obama's judicial nomination's efforts and that definitely could happen with with

Biden as well. So it's been something that we've been talking about for Biden's entire administration of how much could they get done in these two years before mid term threaten Democrats swims on a majority. I didn't understand what Graham was really saying, because look, as you say, the

Republicans president Obama's nominations. I didn't understand what he was complaining about, right well, I mean, this confirmation process for Jackson definitely brought up a lot of the woes of the confirmation process in the past, and it seems like maybe in the heat of the moment this comment was

was brought up. Um. An interesting thing to note though, is that Graham has been pretty supportive of Biden's JUDENTSI nominees uh In in committee and on on the on the floor so whether or not that would change if Republicans are in control would be a really interesting uh change for for Graham in terms of the fact that he's supported a lot of the nominees. Well, well, Democrats have have been controlling this about it. As you know, he supported Judge Jackson for her nomination to the d

C Circuit. I have no idea what happened to make him so bitter. In the meantime, this is the first time I've seen Grandma's questions all year. He doesn't come to digital nominations hearing, so he typically votes by proxy when the meetings come around, and so it was pretty weird for the first time to see him in committee questioning a nominee and it happens to be Supreme Court nominee a year and two finds administration, and it just is a huge contrast to the voting pattern that I've seen.

So it was really interesting and I'm just as curious about the motive as everybody else. Thanks Madison. That's Bloomberg Law reporter, Medicine alder impossible. Foods. Meat free burgers are becoming a staple in US restaurants and grocery stores now for the first time a lawsuit will test Impossible Foods patented technology in court. My guest is Leonard Spenson of Birch, Stewart, Colash and Birch. Tell me about this huge portfolio of

patents that Impossible Foods has. Well, they have a large portfolio. I think it's still the biggest patent portfolio of any of the players in this cultured meat laboratory meat market. UH covers various different aspects of the product. They've got patents that are directed in patent applications on that are still pending, that are directed to a meat product itself,

two parts of the manufacturing process. I think what distinguishes them from other companies is they have multiple patents and patent application still pending directed to the meat product itself, and it's all around the key aspect of their meat, which is this scheam containing protein, and they claim they've developed that, they've isolated the purpose for it, isolated the compound and they're using it in their product. And that's what gives the meat, this artificial or culture laboratory meat.

That's what gives it the texture and taste and smell of real meat. So again that's what distinguishes them from I think all the other players in the fielders they have some patent protection around a key ingredient, and then they can develop product patterns around that key ingredient. Is that what you refer to as its crown jewel? Yes, because if you if you compare their patent portfolio to others sort of in the field, most of them are

focused on process parameters. There may be some particular techniques that they used to make the meat. They may have an attempt to get some claims to the products based on a combination of particular ingredients. But I don't think there's anybody else out there that has one special ingredient that they think distinguishes them from everybody else and that they can use to sort of protect their particular niche in the market. I'd say this is the start of

the industry, right, it's growing now. How unusual is to have a patent dispute at this time, I think it's relatively unusual at this beginning of the technology or the whole industry. Of course, there's lots of startup companies that end up in litigation in various fields biotechnology, in pharmaceuticals, but at the beginning of the industry itself. I think this is kind of unusual if you're compared to let's say,

crisper technology. I don't know if you're familiar with that, but that's one of the gene editing technologies that's pretty new, and there are fights over who has the rights to the key patents on that technology. Right now, they're fighting in Europe and they're fighting in the United States over who should get the patents. But you don't see patent

infringement litigations against each other. Saying for plant biotechnology, I was involved in that way back when, and until recently still planned by a technology that was used to genetically engineer things like corn and soybean, and it took a while before they got to where they were suing each other over patents. I mean they were again trying to get positions so that they would have each company would have their own patent portfolio, but to actually have patent

infringe in suits took a while. Now, part of that might be because in those technologies, the product that would actually go out to the market required more government approval, So like if it was a drug it would take FDA approval, or if it was genetically engineered corn and soybean. They were part of agricultural approvals that you had to go through, so that may be delayed the time to market,

whereas these products they're not as regulated. There's some groups they have to go through, but it's not as regulated, so they're faster to market. And maybe that's by the reason why you see the litigation so early in the industry is because people are getting to the market pretty quickly, and then people who have patent positions want to protect those markets. They're suing a competitor mo Chief food Works

for infringement. Tell us a little about the lawsuit. Well, Possible Foods has, like we discussed before, they have a pretty wide ranging portfolio of patents, and they sued on

one particular patent. It covers the claims are to a beef replica product and it contains a certain percentage of the heat containing protein, and they sued Moti Food Works, who has just recently come out with a products started promoting and commercially selling the product, and they sued Motif for infringement of this one patent legend that it contains a heat containing protein and it contains the other ingredients, but really focusing on this team containing protein, and part

of the evidence that they submitted with their complaint were quotes just from the website of Motif food Works showing that they're promoting their product as having a heat containing protein. And then Impossible Foods also enclosed copies of documents from the regulatory paperwork that Motif filed showing that in that paperwork, according to the Impossible Foods, they admitted that they contained a heam compound similar to we're the same as which

covered by the patent of Impossible Foods. So it's a straight patent infringement student it's pretty standard type of suit. How expensive is this kind of patent litigation? Patent litigation is expensive, yes, so that's also maybe part of the reason why you don't see it in the young industry, as it's expensive. But Impossible Foods is pretty well financed.

You can just read from the industry newsletters and such that they're they're well financed, so I guess they're able to afford it, and they hired a big time law firm, well known law firms, so it's not cheaper than bring a lawsuits like this. If they win, what effect does it have? If they win, they will get money damages, which at this stage probably would not be that huge of an amount of money total, because Motif is just getting into the markets. There's probably not that many sales.

So you might even question at the beginning whether the amount of damages that Impossible Foods could get, whether the amount of damages would equal the cost of bringing the lawsuit. But they could potentially also get an injunction to stop Motif food Works from selling their products. I mean, does it have an effect on their position in the industry,

on the validity of their patents? Is there any broad effect? Well, does heam containing comp and a sort of the crown jewel for Impossible foods, And I'm sure they want to stop anybody that even alleges that they're using a stimilar

kind of compound. So it would at least send a message out to the industry that they are going to be aggressive and protecting their patent portfolio, and they're going to be aggressive and going after anybody that is using a compound that they think is covered by their patents.

So yes, would have that kind of an effect. I'm sure it would cause young companies to pause, because a young company getting food for patent infringement and it's expensive for them to defend themselves also, so it's going to give them some pause. How would it affect Impossible Foods

patent portfolio, and that's hard to say. Patent portfolio Impossible Foods right now has not been challenged, So it would provide an opportunity for somebody to challenge whether the Impossible Foods patents are too broad or whether they really are valid. So potentially have that effect, but that would also take motif having enough need to fight that battle. There's a related patent of impossible foods right now in Europe that's

under opposition. It's not the corresponding European patent to the one that's in the Impossible Foods lawsuit, but it's related. It's I don't know what you might want to call

it a cousin. They're connected through a complicated chain of patent applications, and that patent in Europe is under opposition, which means the European patent granted and some company, through a law firm, filed an opposition and we just don't know what company it is because they thought it just through the law firm and they attacked the European patent

for being an unpatentable over prior art. It's not saying it's not novel, it's it's obvious and for some reasons relating to claim terminology, and the preliminary opinion of the European Patent Office was that the claims were not valid, that they were not novel, and that they were obvious over a bunch of prior art. That was it. Now, whether that prior art has any effect on the U. S patent, I don't know. I haven't studied it carefully.

The European patent is somewhat broader than the U. S patent o im Possible Foods, but you can see that there's potentially a similar line of attack in the United States that could be used, similar to what was used against that European pattern. The European opposition hasn't ended yet. The evidence is pretty much already there. So if some US company like motif I wanted to see if there was a possible line of attack using the evidence that

was submitted in Europe that's already available. If Impossible Foods loses, do its patents become questionable? Are there more lawsuits if they lose? The case depends on the grounds they'd lose the case. They could lose it because studuled jury, the court determines that the motif product doesn't really infringe, it's just not covered by the Impossible Foods patent. So in that respect it would have some impact, but not serious

impact on the rest of portfolio. But suppose the court finds that the Impossible Foods patent is invalid because it covers prioritis either anticipated by or it's obvious over prior art. I think it's not down because of prior art. Maybe that prior art is potentially impactful against the other parts of the portfolio of Impossible Foods because the current patent that's in the lawsuit is drafted in one way and

that focuses on certain elements. So the prior arch could knock out that patent, and maybe that priority would be useful to attack other claims that other patterns owned by Impossible Foods. But their portfolio is pretty broad. It might not have that much of an impact because they have a lot of different patents claiming the subject matter and lots of different ways. But this is one of the

broader ones, I think, to the product itself. So potentially it could have an impact, but they have a lot of other patents in their portfolio that would still be standing. Thanks so much for being on the show. That's Leonard's Fanson of Bert Stewart, Colash and Bert. And that's it for the edition of the Bloomberg Law Show. Remember you can always at the latest legal news on our Bloomberg Law Podcast wherever you get your favorite podcasts. I'm June Russo and you're listening to Bloomberg