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Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.

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Speaker 1: Thirteen days of testimony from undercover agents and informant and

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Speaker 1: to co defendants who pleaded guilty. There were also the

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Speaker 1: secretly recorded conversations, violent social media posts and chat messages. Yet,

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Speaker 1: in a stunning defeat for the government, the jury failed

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Speaker 1: to convict any of the four defendants in the plot

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Speaker 1: to kidnap Michigan Governor Gretchen Whitmer. U s attorney Andrew

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Speaker 1: Bird said he believed the prosecution presented a strong case.

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Speaker 1: Obviously we're disappointed with the outcome. I thought we had

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Speaker 1: the jury to convict fandor's about basically events we put forward.

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Speaker 1: But we still believe in the jury system. The defense

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Speaker 1: lawyers portrayed the men as unsophisticated weekend warriors, often stoned

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Speaker 1: on marijuana and prone to wild talk, who were entrapped

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Speaker 1: by the FBI and it's sting operation. Michael Hills represented

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Speaker 1: Brandon Concerta, who was acquitted. Our governor was never in

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Speaker 1: any danger, and I think the jury, even though they

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Speaker 1: didn't get all of it, you know, they smelled enough

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Speaker 1: of it. I think what the FBI did is unconstanably.

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Speaker 1: This is what I think, and I think the jury

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Speaker 1: just sent them a message loud and clear. My guest

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Speaker 1: is Matthew Schneider, former U S Attorney for the Eastern

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Speaker 1: District of Michigan and a partner at Huntingmanon. Many were

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Speaker 1: stunned by the verdict. Were you I was, like a

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Speaker 1: lot of people were, And I'm a former prosecutor. I

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Speaker 1: work as a defense attorney, and prosecutors and defense attorneys

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Speaker 1: alike were stunned at this, and they said that openly

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Speaker 1: it was surprising. The government put forth a very strong

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Speaker 1: case and it's not the result that a lot of

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Speaker 1: people predicted. Two were acquitted, they were hung on another two.

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Speaker 1: What were the differences that they would equip some and

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Speaker 1: hang on others. There were some significant differences. The two

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Speaker 1: that received the hung verdict, those were viewed as kind

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Speaker 1: of the ringleaders of this, and the jury found that

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Speaker 1: there was not enough evidence to convict them. The two

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Speaker 1: that were acquitted. As for those defendants, those were the

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Speaker 1: defendants who did not actually go to the governor's house

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Speaker 1: and scope it out. There was an event where people

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Speaker 1: went to the governor's house or residents and kind of

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Speaker 1: watched it, fouled around the driveways and used night vision

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Speaker 1: goggles and tried to scope out the place. Well, those

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Speaker 1: two defendants, they didn't participate in that, and that might

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Speaker 1: have been a dividing line that the jury felt that

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Speaker 1: they should be acquitted. Daniel Harris, one of the two acquitted,

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Speaker 1: took the stand in his own defense, a risky move

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Speaker 1: that apparently worked. What did you see in his testimony? Well,

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Speaker 1: we don't know if that's what worked or not, because

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Speaker 1: the jury hasn't said. The jurors went out and they

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Speaker 1: didn't speak to anybody, So we don't know if it

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Speaker 1: was because they believed in the entrapment theory of the defense,

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Speaker 1: or that they believed in the defense theory that these

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Speaker 1: guys were just kind of making it up in big talkers,

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Speaker 1: or that they were kind of, you know, stoned and

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Speaker 1: not very sophisticated and not clever enough to actually do this.

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Speaker 1: We're not sure. We do know that Harris was acquitted

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Speaker 1: of the weapon's charge, which was possessioned of a short

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Speaker 1: barrel rifle, and that charge seemed to be that there

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Speaker 1: was plenty of evidence for that and for the jury

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Speaker 1: to acquit him of that seems quite striking because there

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Speaker 1: was plenty of proofs that he had the gun. It's

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Speaker 1: not like the kidnapping plot where there was discussion either

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Speaker 1: you had the gun or you didn't, and they found

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Speaker 1: that he didn't and was he arrested with the gun

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Speaker 1: or not. There was a lot of discussion about the

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Speaker 1: type of gun it was and the position it was,

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Speaker 1: and whether or not it was in pieces at the time.

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Speaker 1: But you know a weapon even if it's in separate

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Speaker 1: pieces that you know the receiver. If the receiver is

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Speaker 1: what you have, that's still classified as a weapon under

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Speaker 1: federal law. But there was explanation given in this testimony

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Speaker 1: that always in different pieces, and perhaps that's something that

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Speaker 1: the jury took into account. So there were thirteen days

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Speaker 1: of evidence undercover FBI agents and FBI informant to co

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Speaker 1: defendants who pleaded guilty. They were secretly recorded conversations, violence,

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Speaker 1: social media posts, etcetera, etcetera. So it seemed like the

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Speaker 1: prosecution had a lot of evidence. Where did it fail? Well,

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Speaker 1: they did have a lot of evidence. But if you're

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Speaker 1: going to be looking at this case in the future

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Speaker 1: as to how this case was brought, it will be

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Speaker 1: a big question about did they have to take down

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Speaker 1: this case. Now, did they have to end the investigation

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Speaker 1: when they did, and what would have been the result

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Speaker 1: if instead of ending the investigation they would have continued.

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Speaker 1: Would they have developed, for example, evidence from the defendants

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Speaker 1: that they had set a firm date for the kidnapping,

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Speaker 1: which did not happen in this case. But if they

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Speaker 1: would have kept the investigation of lives, maybe they would

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Speaker 1: have gotten more evidence convince the jury. Now, we all

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Speaker 1: understand that investigations sometimes have to be taken down for

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Speaker 1: officers safety and things like that, but still that's going

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Speaker 1: to be a very nagging question in the eyes of

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Speaker 1: the Justice Department for many cases moving forward. We just

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Speaker 1: go back a bit and explain when they decided to

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Speaker 1: end the FBI investigation. At what point they ended it

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Speaker 1: as the defendants were walking into a restaurant to have launch. Okay,

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Speaker 1: so that appears to be an innocuous time, but it

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Speaker 1: was a time when law enforcement could get together and

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Speaker 1: it was an open area where they could all swoop

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Speaker 1: in and have a safe arrest. That left out some

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Speaker 1: evidence that I think might have come forth if they

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Speaker 1: would have continued the recording devices and continued the conversations

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Speaker 1: the FBI ending the operation before they had evidence of

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Speaker 1: the defendants making definitive plans to kidnap the governor. How

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Speaker 1: did that help the defense? That is the defense argument,

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Speaker 1: and that they're saying, this is all a bunch of talk.

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Speaker 1: They didn't have any actions, and there's nothing that the

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Speaker 1: government can show for it. Now, look, there's still two

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Speaker 1: defendants still to be retried, and there are two defendants

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Speaker 1: who pleaded guilty. And when you plead guilty in federal court,

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Speaker 1: you go into the courtroom and you say I'm pleading

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Speaker 1: guilty because I am guilty. And those defendants testified and

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Speaker 1: they said that they were guilty of this conspiracy. They

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Speaker 1: did commit the crime, and they were testifying so that

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Speaker 1: they could help the prosecution and hopefully get a sentence reduction.

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Speaker 1: That makes it even more surprising that the jury didn't

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Speaker 1: believe them. Oftentimes, jurors don't like cooperators, they don't like

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Speaker 1: people who were once on one side and then switched

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Speaker 1: to the other side. The defense painted them as liars

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Speaker 1: who were only trying to get a sentence reduction, and

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Speaker 1: that it happens in every case. This case, also, however,

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Speaker 1: had undercover FBI informant, There was an informant, there was

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Speaker 1: an agent. There was plenty of testimony here and plenty

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Speaker 1: of evidence. But the defense theory, again, we don't know

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Speaker 1: because we don't know what the jury has to say,

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Speaker 1: but it appears that it worked very favorable in the

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Speaker 1: defense's mind. The lawyer for Brandon concert A blamed overly

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Speaker 1: aggressive FBI informans. He said, I think what the FBI

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Speaker 1: did is unconscionable, and I think the jury just sent

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Speaker 1: them a message loud and clear. Is that the case

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Speaker 1: because they hung on two of the defendants. Well, if

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Speaker 1: they were loud and clear unconscionable, you would have had

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Speaker 1: four acquittals, and we didn't have that. What we had

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Speaker 1: is a jury saying I can find these two who

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Speaker 1: were not present at the stake out of the Governor's

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Speaker 1: house not guilty, but I'm not sure, and we can't

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Speaker 1: reach a verdict on the other two. And we also,

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Speaker 1: as I indicated, had to be im plead guilty. So

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Speaker 1: that really remains to be seen. The government is going

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Speaker 1: to go back to square one and try this case again,

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Speaker 1: which is not unusual. I mean John Gotti, for example,

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Speaker 1: was tried four times by the Justice Department, So it's

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Speaker 1: not surprising that they would give this another shot with

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Speaker 1: a new jury, rush instructions, fresh arguments. Do you think

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Speaker 1: the prosecution will try to present the case differently, Yes,

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Speaker 1: I do, because the jury asked a lot of questions

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Speaker 1: about the weapons involved in the explosives. Well, jurors don't

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Speaker 1: ask questions if they understand all the evidence and the

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Speaker 1: presentation was flawless. They only ask questions if they don't

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Speaker 1: understand what just took place. And so I'm certain that

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Speaker 1: the government will be doing a closer explanation about the

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Speaker 1: bombs and that type of evidence in this next retrial.

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Speaker 1: The jury pool was drawn from a twenty two county

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Speaker 1: region in western and northern Michigan that is largely rural,

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Speaker 1: Republican and conservative. Is it possible that the prosecution just

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Speaker 1: can't get a jury that will convict in this case, Well,

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Speaker 1: the prosecution picked a jury along with the defense, and

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Speaker 1: certainly some of the members of the jury, a lot

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Speaker 1: of them actually owned weapons. A lot of them expressed,

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Speaker 1: you know, some mistrust for government entities, but not overly

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Speaker 1: so that would kick them off the jury a pool.

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Speaker 1: But I think you have a lot of people in

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Speaker 1: this jury pool who don't like the government, and you

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Speaker 1: know you have a constitutional right to dislike Governor Whitmer

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Speaker 1: or even hate her. That's your constitutional right. People hate

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Speaker 1: people love her. The fact is is what no one

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Speaker 1: should take from this verdict is that it's okay to

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Speaker 1: do harm to a public official, because it's not okay

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Speaker 1: to threaten to kidnap Governor Whitmer. The only thing you

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Speaker 1: can take from this verdict is that the government failed

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Speaker 1: to convince the jury beyond a reasonable doubt. Some politicians

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Speaker 1: have expressed fears about these acquittals. So, for example, Michigan

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Speaker 1: State Representative Lori Phutsky tweeted that a man who threatened

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Speaker 1: to kill her in was acquitted. Quote, the next time

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Speaker 1: you ask why we can't get good people to run

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Speaker 1: for office, consider today's verdict. This won't be taken seriously

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Speaker 1: until someone dies. Do these acquittals send out a message

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Speaker 1: that you're not going to be held accountable. That's going

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Speaker 1: to be a great question after the retrial of this case,

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Speaker 1: because these two defendants are still out there now. If

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Speaker 1: those defendants are found not guilty, a lot of questions

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Speaker 1: will be asked about the safety of public officials. But

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Speaker 1: we're not quite there yet, so I don't think we're

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Speaker 1: quite in the position to make those calculations or conclusions

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Speaker 1: so far. Did you see a great difference in the

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Speaker 1: way the defense attorneys handled the case. Each of the

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Speaker 1: defense attorneys took a different, slightly different approach. Some of

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Speaker 1: them really hammered on the fact that there were government informants,

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Speaker 1: and the government informants and the FBI was driving this

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Speaker 1: case from the beginning to the end. Maybe that's what

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Speaker 1: the jury believed and caught onto. Other times, defense attorneys

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Speaker 1: really hit on the issue that the defendants were not competent.

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Speaker 1: They raised a bunch of other things that they could

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Speaker 1: do to the governor other than kidnapper, such as that

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Speaker 1: they would cut all the trees down between Indiana in

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Speaker 1: Michigan to prevent law enforcement from getting there fast enough. Well,

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Speaker 1: it's really fanciful. They also talked about tying a balloon

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Speaker 1: to the governor and toting her away. No one really

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Speaker 1: believes that that could happen. So the defense theory was,

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Speaker 1: if they're going to make up those type of theories

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Speaker 1: that are really impossible, kidnapping the governor is just another

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Speaker 1: one of those theories and it shouldn't be believed, and

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Speaker 1: that was part of the arguments made in this case.

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Speaker 1: I guess this does show that the jury really considered

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Speaker 1: each of the defendants individually. They certainly did, and if

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Speaker 1: they hadn't, this would have been a quick verdict. But

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Speaker 1: they came back over several days. They took a lot

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Speaker 1: of time, They asked questions that were very specific to

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Speaker 1: the defendant's charged with the weapons, for example, and it

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Speaker 1: looks like they did deliberate and take a lot of time.

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Speaker 1: Of course, you know, when the jury came back and

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Speaker 1: they couldn't reach a verdict, the expressions on their faces

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Speaker 1: was certainly one of frustration. And if you have to

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Speaker 1: sit inside a room with twelve people that you don't

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Speaker 1: know for five days straight and you're disagreeing with them,

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Speaker 1: it has to be very frustrating, definitely. So how big

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Speaker 1: a blow would you say this is to the Justice Department,

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Speaker 1: which has made domestic terror of priority after January six?

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Speaker 1: It certainly is not helpful, right. The Justice Department definitely

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Speaker 1: wanted to have convictions here. They were touting the security

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Speaker 1: and strength of their evidence. It didn't work out for them.

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Speaker 1: One thing that you should think about as well, is

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Speaker 1: it's not just what they said about the evidence, but

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Speaker 1: when the evidence was played in court it came out

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Speaker 1: a little bit differently. For example, some of these threats

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Speaker 1: towards Governor Whimer. You know, when they actually played the

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Speaker 1: tape of the recording, the defendants were laughing. We don't

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Speaker 1: laugh if you're serious about that, and so there was

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Speaker 1: some reason to believe that there was some joking going

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Speaker 1: on about this. Of course, there were other times when

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Speaker 1: very sinister things were said about hurting the governor and

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Speaker 1: no one was laughing at all. So on both sides,

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Speaker 1: each side had some arguments there is there anything the

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Speaker 1: government can do on the retrial to make the witnesses

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Speaker 1: the informants more believable, But they can't go back and

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Speaker 1: change the evidence. Then what's done is done is because

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Speaker 1: this case was taken down at this particular time, with

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Speaker 1: these particular defendants involved, and so that can't be changed.

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Speaker 1: They can, however, have different questions or additional questions asked

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Speaker 1: for potential jurors. Some of the jurors in this trial

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Speaker 1: were asked very very little. In fact, one of the

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Speaker 1: last people into the jury box, I think he was

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Speaker 1: asked two questions. And once I heard that, and I

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Speaker 1: was listening to the testimony, I thought, who the heck

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Speaker 1: is this guy? We don't even really know who this

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Speaker 1: person is, and now he's on the jury. I don't

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Speaker 1: know if he favors the government or he favors the defense.

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Speaker 1: If you were a trial lawyer, you would step up

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Speaker 1: and say, hold on a second year, honor. I've got

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Speaker 1: a few more questions, and I think we will probably

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Speaker 1: see the at on both sides in the future. Does

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Speaker 1: this showcase the difficulties the government has with infiltrating right

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Speaker 1: wing groups and developing cases without infringing on First and

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Speaker 1: Second Amendment rights? It certainly does. And this is a

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Speaker 1: real fine line because it's not the first time that

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Speaker 1: the government has brought a case that is similar to this,

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Speaker 1: where it's churched people with government extremism and they've found

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Speaker 1: acquittals at the end of the road. So yes, it's

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Speaker 1: certainly something that the government has to take into account

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Speaker 1: that people have the First Amendment, they have the Second Amendment,

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Speaker 1: and in fact, this was covered in the trial. When

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Speaker 1: you are making a bomb for fun, because some people

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Speaker 1: do that, and you're you're just making explosives. That's not

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Speaker 1: necessarily a weapon of mass destruction. But there was testimony

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Speaker 1: about the fact that when you take a bomb or

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Speaker 1: an explosive device and you put items in it like

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Speaker 1: bbs or pennies are things that can fragment and injure people.

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Speaker 1: That's a different type of weapon. So all of these

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Speaker 1: things the government will be looking at in the future.

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Speaker 1: And it is truly a balanced thing between knowing when

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Speaker 1: you're prosecuting somebody who's done wrong and prosecuting somebody improperly

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Speaker 1: because they've just exercised their First or Second Amendment rights. Matthew,

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Speaker 1: hasn't been decided that they're going to retry them, or

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Speaker 1: is there any question about it. It hasn't been formally decided,

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Speaker 1: but nor What always happens after this is the judge

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Speaker 1: enters a verdict of mistrial, and that hasn't yet happened

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Speaker 1: on the dock at Chet, but the judge will do that,

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Speaker 1: and then the judge will study scheduling date for when

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Speaker 1: the next dates are. The current U S Attorney in

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Speaker 1: the Western District indicated that we have more work to

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Speaker 1: do and we've got another trial coming up, So he's

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Speaker 1: telegraphed that, and I would think, given the Justice Department's

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Speaker 1: past record on retrials, that there's really no reason that

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Speaker 1: they wouldn't retrial this case. Again, given the fact that

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Speaker 1: the jury returned to split verdict and opened the door

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Speaker 1: for that to happen. What kind of message would it

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Speaker 1: send out if the government didn't retry these two It

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Speaker 1: would show that they're giving up on the case. And

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Speaker 1: you know, some in the defense bar would say that's good.

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Speaker 1: They're realizing the conclusion that the FBI and the government

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Speaker 1: overreached and they should give up. And certainly that is

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Speaker 1: an argument that has been put forth. But another argument

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Speaker 1: is is that they have another ability to talk with

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Speaker 1: the jurors now, this time only with two defendants, and

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Speaker 1: that will be easier than with four defendants, will be

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Speaker 1: less confusing, there'll be less evidence in the record. They'll

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Speaker 1: be able to focus only on these two folks and

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Speaker 1: then let the chips ball where they may. Thanks Matthew.

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Speaker 1: That's Matthew Schneider, former U S Attorney for the Eastern

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Speaker 1: District of Michigan and a partner at Honigman. President Biden

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Speaker 1: is coming off the victory of Katangi Brown Jackson's confirmation

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Speaker 1: to the Supreme Court, with a backlog of lower court

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Speaker 1: vacancies that don't have appending nominee and the midterm elections

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Speaker 1: ahead that could end the democrats narrow Senate majority. Joining

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Speaker 1: me is Madison Alder Bloomberg Law reporter start by telling

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Speaker 1: us how quickly Biden moved to fill judicial vacancies in

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Speaker 1: his first year in office. In his first twelve months

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Speaker 1: in office, Biden outpaced every president since John F. Kennedy

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Speaker 1: with his appointment. He moved at a really record paced here,

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Speaker 1: even outpacing Trump, who definitely made judicial nominations a priority.

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Speaker 1: So Biden got off to a really good start in

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Speaker 1: year one. In your two, he now had a Supreme

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Speaker 1: Court va can see the fill and that took up

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Speaker 1: a lot of time for the White House and for

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Speaker 1: the Senate to deal with. So now Biden is looking

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Speaker 1: at a lot of vacancies to fill this year, and

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Speaker 1: that's made a little bit more difficult with mid terms

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Speaker 1: right around the corner. Has Biden made any new lower

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Speaker 1: court nominations since Justice Stephen Bryan announced his retirement. Yes,

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Speaker 1: on February second, he made just one nomination to a

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Speaker 1: circuit court, but really nominations have been to and far

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Speaker 1: between during that process. So now Biden is looking at

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Speaker 1: several vacancies at the circuit court level, about nine team

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Speaker 1: that don't have a nomination pending, because he definitely has

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Speaker 1: an opportunity to make an impact. They're looking towards the

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Speaker 1: end of the year. Was it deliberate that he didn't

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Speaker 1: make any new nominations or was it because of the

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Speaker 1: whole process of having a Supreme Court nomination and shepherding

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Speaker 1: that through. I think the Supreme Court nomination takes up

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Speaker 1: a lot of oxygen in the room. But if Biden

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Speaker 1: wants to make an impact on lower court nominations, new

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Speaker 1: nominations are going to have to come from the White

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Speaker 1: House here pretty soon. To give the Senate nomination to

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Speaker 1: work on before mid terms kind of take over and

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Speaker 1: take up a lot of senator's time when they're when

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Speaker 1: they're at home campaigning. So let's talk about how many

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Speaker 1: openings there are. There are three seats on the ninth

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Speaker 1: and first circuit, this is without a nominee, two seats

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Speaker 1: on the first, second, fourth, fifth, and seventh, and one

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Speaker 1: seat on the third, sixth, tenth, and d C circuit.

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Speaker 1: That's a lot of seats. Is that just waiting for

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Speaker 1: the three months for Jackson's nomination to come through or

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Speaker 1: did they slow down before that? So these have been

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Speaker 1: building up, Definitely, These didn't just occurred during Jackson's nomination

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Speaker 1: and far announcement that he would retire UM. But it

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Speaker 1: is building up now and some of these have built

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Speaker 1: up during that time period. So now this is this

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Speaker 1: is what the White House is really going to be

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Speaker 1: looking to towards the end of this year. Tell us

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Speaker 1: about the most high profile vacancy is Jackson's seat on

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Speaker 1: the d C circuit and there's already one nominee in play.

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Speaker 1: He set there. Tell us about that nominee first. So

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Speaker 1: the nominee in place there already is Michelle Child. She

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Speaker 1: is a South Carolina's District judge Seddle judge UM in

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Speaker 1: South Carolina, and she was being considered, if you remember,

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Speaker 1: as a candidate for the Supreme Court. Uh, they paused

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Speaker 1: her nomination process. She was actually going to have a hearing.

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Speaker 1: The Judiciary Committee had planned to have her have a hearing,

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Speaker 1: and when she was under consideration, so the seat, they

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Speaker 1: paused that. So her nomination will be one of the

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Speaker 1: circuit nominations the Judiciary Committee can address when it comes

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Speaker 1: back after after recess. But then Biden also has another

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Speaker 1: opportunity on on the DC Circuit, and that's Cantanti Brown

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Speaker 1: Jackson's seat on the DC Circuit. Her elevation opens up

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Speaker 1: another vacancy and he now has two seats he can

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Speaker 1: he can fill on on that court, which is often

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Speaker 1: seen as the second highest because it involves a lot

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Speaker 1: of disputes in Balti agencies in Congress, and it's a

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Speaker 1: it's a theme, is a very important court. Some groups

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Speaker 1: are already posturing and making suggestions about what they want

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Speaker 1: to see on that court. Right We just had a

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Speaker 1: process where we were considering someone for that seat, and

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Speaker 1: a lot of groups were making suggestions before Child was

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Speaker 1: nominated about who they would like to see in in

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Speaker 1: that kind of a role. I reported in September that

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Speaker 1: Depect Cuta, who is the founder of boutique Appellent firm Um,

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Speaker 1: and Karla Gilbride, who's a senior attorney at Public Justice,

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Speaker 1: were both thought to be under consideration for that vacancy. Ultimately,

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Speaker 1: Child was nominated, but given that they just considered nominated

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Speaker 1: to the seat if there was anybody that was considered

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Speaker 1: for that seat, that might be someone that they think

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Speaker 1: about for this time around as well. I spoke to

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Speaker 1: a couple of progressive groups, and you know, they would

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Speaker 1: really like to see someone who maybe brings a different

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Speaker 1: type of diversity to the Court than Child. The Child

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Speaker 1: was criticized by progressives during that process of considering her

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Speaker 1: for the Supreme Court for her representation of employers, and

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Speaker 1: some of these progressive groups would like to see someone

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Speaker 1: maybe with a pellet practice or a working administrative law

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Speaker 1: work representing consumer interests. So those are some areas that

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Speaker 1: are being talked about. Is a potential background, characteristics or

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Speaker 1: experience for Biden's pick medicine who is doing the selecting

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Speaker 1: of these nominees. So the DC circuit is unique in

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Speaker 1: the fact that there's no senators that are attached to DC,

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Speaker 1: so the White House doesn't have to deal with senators

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Speaker 1: interest now at the circuit level, that hasn't been the

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Speaker 1: practice for several years now. During the Trump administration, Republicans

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Speaker 1: in the Senate stopped treating home state senators support as

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Speaker 1: a veto on nominees, so that hasn't been the case

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Speaker 1: at the circuit level for a few years now, but

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Speaker 1: the DC Circuit has always been that way, and you know,

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Speaker 1: even if the White House are reaching out to courtesy,

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Speaker 1: that's not something that happens at the DC Circuit level

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Speaker 1: just because there aren't senators there. So they really have,

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Speaker 1: you know, kind of a blank slate here in terms

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Speaker 1: of who they could select for for the seat. And

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Speaker 1: there's some pressure to appoint the circuit's first Hispanic as well. Correct, Yeah,

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Speaker 1: the Mexican American Legal Defense and Education Fund has apparded names,

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Speaker 1: the reported names dividings for Judge David Tatle's seats, which

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Speaker 1: is the seat that Michelle Child was nominated to. But

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Speaker 1: now that there's another opening, uh, you know, they would

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Speaker 1: like to see the court's first Hispanic appointed to that

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Speaker 1: seat too. So that's another element for for the administrations

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Speaker 1: to be considering here. The Judiciary Committee has split eleven

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Speaker 1: Republicans eleven Democrats. Are Republicans causing delays when they don't

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Speaker 1: vote for the nominees. Yes, there are a few nominees

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Speaker 1: right now who are going to require a discharge petition

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Speaker 1: on their nominations that we just saw this with Stanji

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Speaker 1: bon Jackson nomination as well. This means the committee deadlocks

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Speaker 1: and Ben Schumer files a discharged motion, and then that

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Speaker 1: vote on the discharged motion is something that happens in

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Speaker 1: the full Senate, So instead of having two votes on

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Speaker 1: your nomination closer to end debate, in the final confirmation vote,

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Speaker 1: you end up having three votes on the floor. So

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Speaker 1: it just takes up a little bit more time, but

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Speaker 1: ultimately these nominees can get confirmed since time seems to

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Speaker 1: be of the essence. Now, do the people you've talked

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Speaker 1: to think that it's possible for Biden to fill these

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Speaker 1: nineteen circuit court seats plus depending ones before the mid terms? Yeah.

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Speaker 1: I talked to John Collins, who's a professor at George

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Speaker 1: Washington University who focuses on tracking judicial nominations, and he

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Speaker 1: told me that he thinks that there is an opportunity

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Speaker 1: for Biden to have a year like he had, but

432
00:24:58,760 --> 00:25:02,159
Speaker 1: nominating people as soon as possible is going to be

433
00:25:02,240 --> 00:25:04,679
Speaker 1: a really important piece of that and making sure that

434
00:25:04,760 --> 00:25:07,960
Speaker 1: there are nominees in the pipeline for the Senate to consider.

435
00:25:08,520 --> 00:25:12,880
Speaker 1: The Senate Judiciary Chair Dick Durbin said that Majority Leader

436
00:25:12,960 --> 00:25:16,439
Speaker 1: Chuck Schumer has his hands full with the sixteen district

437
00:25:16,520 --> 00:25:20,280
Speaker 1: and Appeals Court nominees awaiting votes on the Senate floor.

438
00:25:20,920 --> 00:25:25,960
Speaker 1: So that procedural issue with six of them really takes

439
00:25:26,040 --> 00:25:29,280
Speaker 1: up a lot of time on the Senate floor. It does.

440
00:25:29,480 --> 00:25:32,480
Speaker 1: Each of these votes takes up real hours of the

441
00:25:32,520 --> 00:25:36,440
Speaker 1: Senate time. And uh, Jeremy Durban told me as much.

442
00:25:36,520 --> 00:25:39,960
Speaker 1: Schumer has his handsful in terms of getting these votes

443
00:25:40,359 --> 00:25:42,680
Speaker 1: scheduled and and and the hours of that will take

444
00:25:42,720 --> 00:25:45,240
Speaker 1: when they come back from recess. And then Durban in

445
00:25:45,320 --> 00:25:49,560
Speaker 1: committee has about eight nominees to consider. But after those

446
00:25:49,600 --> 00:25:52,040
Speaker 1: eight nominees he will have run out of his list

447
00:25:52,080 --> 00:25:54,440
Speaker 1: from the White House, which is why the White House

448
00:25:54,520 --> 00:25:58,120
Speaker 1: nominating more people to be seech is so important. Let's

449
00:25:58,119 --> 00:26:03,080
Speaker 1: talk about the this circuits that could flip. Yeah, so

450
00:26:03,280 --> 00:26:08,000
Speaker 1: Biden has one opportunity here to split a circuit, to

451
00:26:08,119 --> 00:26:11,280
Speaker 1: change the balance on on a circuit. So the third circuit,

452
00:26:11,400 --> 00:26:15,240
Speaker 1: there is one Republican appointee leaving that court. If Biden

453
00:26:15,280 --> 00:26:19,280
Speaker 1: replaces that appointee, which is own, the circuit will be

454
00:26:19,320 --> 00:26:22,080
Speaker 1: split seven seven. So we'll shift the balance there from

455
00:26:22,080 --> 00:26:27,040
Speaker 1: a Republican appointed majority to a split courts and evenly

456
00:26:27,119 --> 00:26:31,359
Speaker 1: divided court between Republican and Democratic appointees and I should

457
00:26:31,560 --> 00:26:34,320
Speaker 1: make sure to note that a party of appointing president

458
00:26:34,440 --> 00:26:39,240
Speaker 1: isn't always an exact proxy for judges ideology, but it

459
00:26:39,400 --> 00:26:42,399
Speaker 1: is one of the only indicators that we have, so

460
00:26:42,600 --> 00:26:46,600
Speaker 1: it can be helpful for judging how something like on

461
00:26:46,760 --> 00:26:50,320
Speaker 1: bank rehearing will will go when the entire court is

462
00:26:50,840 --> 00:26:55,560
Speaker 1: deciding an issue. The circuits that are now Republican majority

463
00:26:55,680 --> 00:27:01,280
Speaker 1: are the Fifth, the six, seven, eight, and the eleventh.

464
00:27:01,600 --> 00:27:04,840
Speaker 1: That's correct. Does it appear as if the mid terms,

465
00:27:05,000 --> 00:27:09,960
Speaker 1: if the Republicans take back the Senate, how difficult is

466
00:27:10,000 --> 00:27:13,800
Speaker 1: it going to be for Biden to get his nominees through.

467
00:27:14,560 --> 00:27:16,840
Speaker 1: I'm glad you bout that up, because that is really

468
00:27:17,160 --> 00:27:20,880
Speaker 1: what is being people moving. The progressive groups that I've

469
00:27:20,920 --> 00:27:24,200
Speaker 1: I've spoken to our groups that watched judicial nominations, professors

470
00:27:24,200 --> 00:27:28,159
Speaker 1: that watch judicial nominations really say that that is the

471
00:27:28,200 --> 00:27:31,639
Speaker 1: important factor here because if it's the Senate changes hands,

472
00:27:31,840 --> 00:27:36,560
Speaker 1: there's a very high likelihood that nominations are going to

473
00:27:36,640 --> 00:27:40,240
Speaker 1: become much more difficult for the administration, and Republicans have

474
00:27:40,440 --> 00:27:43,560
Speaker 1: promised as much. Lindsey Graham kind of alluded to this

475
00:27:43,760 --> 00:27:47,840
Speaker 1: during Jackson's vote in the committee. He said the process

476
00:27:47,960 --> 00:27:52,240
Speaker 1: that the Democrats started will rear its head if Republicans

477
00:27:52,240 --> 00:27:55,880
Speaker 1: are in charge and promise they would talk about studies differently.

478
00:27:56,320 --> 00:27:59,240
Speaker 1: You know, that obviously remains to be seen what what

479
00:27:59,359 --> 00:28:02,280
Speaker 1: that would look like, but we can use the Obama

480
00:28:02,280 --> 00:28:07,160
Speaker 1: administration as kind of proxy. And Republicans really stymied Obama's

481
00:28:07,200 --> 00:28:11,280
Speaker 1: judicial nomination's efforts and that definitely could happen with with

482
00:28:11,359 --> 00:28:14,000
Speaker 1: Biden as well. So it's been something that we've been

483
00:28:14,000 --> 00:28:18,440
Speaker 1: talking about for Biden's entire administration of how much could

484
00:28:18,440 --> 00:28:22,560
Speaker 1: they get done in these two years before mid term

485
00:28:22,760 --> 00:28:27,680
Speaker 1: threaten Democrats swims on a majority. I didn't understand what

486
00:28:27,880 --> 00:28:30,560
Speaker 1: Graham was really saying, because look, as you say, the

487
00:28:30,720 --> 00:28:34,760
Speaker 1: Republicans president Obama's nominations. I didn't understand what he was

488
00:28:34,800 --> 00:28:40,160
Speaker 1: complaining about, right well, I mean, this confirmation process for

489
00:28:40,440 --> 00:28:43,760
Speaker 1: Jackson definitely brought up a lot of the woes of

490
00:28:43,800 --> 00:28:47,520
Speaker 1: the confirmation process in the past, and it seems like

491
00:28:47,800 --> 00:28:50,760
Speaker 1: maybe in the heat of the moment this comment was

492
00:28:50,760 --> 00:28:53,360
Speaker 1: was brought up. Um. An interesting thing to note though,

493
00:28:53,480 --> 00:28:56,480
Speaker 1: is that Graham has been pretty supportive of Biden's JUDENTSI

494
00:28:56,600 --> 00:29:00,080
Speaker 1: nominees uh In in committee and on on the on

495
00:29:00,120 --> 00:29:02,880
Speaker 1: the floor so whether or not that would change if

496
00:29:02,880 --> 00:29:07,720
Speaker 1: Republicans are in control would be a really interesting uh

497
00:29:08,240 --> 00:29:11,000
Speaker 1: change for for Graham in terms of the fact that

498
00:29:11,040 --> 00:29:14,080
Speaker 1: he's supported a lot of the nominees. Well, well, Democrats

499
00:29:14,080 --> 00:29:16,680
Speaker 1: have have been controlling this about it. As you know,

500
00:29:16,880 --> 00:29:21,480
Speaker 1: he supported Judge Jackson for her nomination to the d

501
00:29:21,560 --> 00:29:24,640
Speaker 1: C Circuit. I have no idea what happened to make

502
00:29:24,720 --> 00:29:27,320
Speaker 1: him so bitter. In the meantime, this is the first

503
00:29:27,320 --> 00:29:30,160
Speaker 1: time I've seen Grandma's questions all year. He doesn't come

504
00:29:30,240 --> 00:29:35,360
Speaker 1: to digital nominations hearing, so he typically votes by proxy

505
00:29:35,560 --> 00:29:39,360
Speaker 1: when the meetings come around, and so it was pretty

506
00:29:39,920 --> 00:29:44,160
Speaker 1: weird for the first time to see him in committee

507
00:29:44,360 --> 00:29:47,080
Speaker 1: questioning a nominee and it happens to be Supreme Court

508
00:29:47,120 --> 00:29:50,320
Speaker 1: nominee a year and two finds administration, and it just

509
00:29:50,760 --> 00:29:55,800
Speaker 1: is a huge contrast to the voting pattern that I've seen.

510
00:29:56,120 --> 00:30:00,160
Speaker 1: So it was really interesting and I'm just as curious

511
00:30:00,240 --> 00:30:04,320
Speaker 1: about the motive as everybody else. Thanks Madison. That's Bloomberg

512
00:30:04,400 --> 00:30:10,320
Speaker 1: Law reporter, Medicine alder impossible. Foods. Meat free burgers are

513
00:30:10,360 --> 00:30:14,640
Speaker 1: becoming a staple in US restaurants and grocery stores now

514
00:30:14,680 --> 00:30:18,200
Speaker 1: for the first time a lawsuit will test Impossible Foods

515
00:30:18,240 --> 00:30:23,280
Speaker 1: patented technology in court. My guest is Leonard Spenson of Birch, Stewart,

516
00:30:23,360 --> 00:30:28,360
Speaker 1: Colash and Birch. Tell me about this huge portfolio of

517
00:30:28,440 --> 00:30:33,560
Speaker 1: patents that Impossible Foods has. Well, they have a large portfolio.

518
00:30:34,240 --> 00:30:37,600
Speaker 1: I think it's still the biggest patent portfolio of any

519
00:30:37,680 --> 00:30:42,600
Speaker 1: of the players in this cultured meat laboratory meat market.

520
00:30:43,040 --> 00:30:48,440
Speaker 1: UH covers various different aspects of the product. They've got

521
00:30:48,520 --> 00:30:51,240
Speaker 1: patents that are directed in patent applications on that are

522
00:30:51,280 --> 00:30:54,600
Speaker 1: still pending, that are directed to a meat product itself,

523
00:30:55,160 --> 00:30:59,920
Speaker 1: two parts of the manufacturing process. I think what distinguishes

524
00:31:00,000 --> 00:31:03,680
Speaker 1: them from other companies is they have multiple patents and

525
00:31:03,760 --> 00:31:07,720
Speaker 1: patent application still pending directed to the meat product itself,

526
00:31:08,120 --> 00:31:13,000
Speaker 1: and it's all around the key aspect of their meat,

527
00:31:13,040 --> 00:31:17,640
Speaker 1: which is this scheam containing protein, and they claim they've

528
00:31:17,640 --> 00:31:21,480
Speaker 1: developed that, they've isolated the purpose for it, isolated the

529
00:31:21,520 --> 00:31:24,200
Speaker 1: compound and they're using it in their product. And that's

530
00:31:24,200 --> 00:31:28,120
Speaker 1: what gives the meat, this artificial or culture laboratory meat.

531
00:31:28,120 --> 00:31:30,360
Speaker 1: That's what gives it the texture and taste and smell

532
00:31:30,560 --> 00:31:34,720
Speaker 1: of real meat. So again that's what distinguishes them from

533
00:31:34,760 --> 00:31:37,320
Speaker 1: I think all the other players in the fielders they

534
00:31:37,360 --> 00:31:41,960
Speaker 1: have some patent protection around a key ingredient, and then

535
00:31:42,000 --> 00:31:46,720
Speaker 1: they can develop product patterns around that key ingredient. Is

536
00:31:46,760 --> 00:31:49,760
Speaker 1: that what you refer to as its crown jewel? Yes,

537
00:31:50,440 --> 00:31:53,240
Speaker 1: because if you if you compare their patent portfolio to

538
00:31:53,400 --> 00:31:56,280
Speaker 1: others sort of in the field, most of them are

539
00:31:56,600 --> 00:32:00,960
Speaker 1: focused on process parameters. There may be some particular techniques

540
00:32:01,000 --> 00:32:03,720
Speaker 1: that they used to make the meat. They may have

541
00:32:03,840 --> 00:32:06,720
Speaker 1: an attempt to get some claims to the products based

542
00:32:06,800 --> 00:32:10,280
Speaker 1: on a combination of particular ingredients. But I don't think

543
00:32:10,280 --> 00:32:13,440
Speaker 1: there's anybody else out there that has one special ingredient

544
00:32:13,520 --> 00:32:16,680
Speaker 1: that they think distinguishes them from everybody else and that

545
00:32:16,800 --> 00:32:20,720
Speaker 1: they can use to sort of protect their particular niche

546
00:32:20,720 --> 00:32:23,080
Speaker 1: in the market. I'd say this is the start of

547
00:32:23,200 --> 00:32:26,160
Speaker 1: the industry, right, it's growing now. How unusual is to

548
00:32:26,200 --> 00:32:29,160
Speaker 1: have a patent dispute at this time, I think it's

549
00:32:29,160 --> 00:32:34,200
Speaker 1: relatively unusual at this beginning of the technology or the

550
00:32:34,240 --> 00:32:37,200
Speaker 1: whole industry. Of course, there's lots of startup companies that

551
00:32:37,280 --> 00:32:43,560
Speaker 1: end up in litigation in various fields biotechnology, in pharmaceuticals,

552
00:32:43,600 --> 00:32:46,240
Speaker 1: but at the beginning of the industry itself. I think

553
00:32:46,280 --> 00:32:49,600
Speaker 1: this is kind of unusual if you're compared to let's say,

554
00:32:49,720 --> 00:32:52,360
Speaker 1: crisper technology. I don't know if you're familiar with that,

555
00:32:52,440 --> 00:32:55,680
Speaker 1: but that's one of the gene editing technologies that's pretty new,

556
00:32:55,960 --> 00:32:59,280
Speaker 1: and there are fights over who has the rights to

557
00:32:59,320 --> 00:33:02,760
Speaker 1: the key patents on that technology. Right now, they're fighting

558
00:33:02,800 --> 00:33:04,880
Speaker 1: in Europe and they're fighting in the United States over

559
00:33:04,880 --> 00:33:07,520
Speaker 1: who should get the patents. But you don't see patent

560
00:33:07,600 --> 00:33:14,239
Speaker 1: infringement litigations against each other. Saying for plant biotechnology, I

561
00:33:14,280 --> 00:33:17,240
Speaker 1: was involved in that way back when, and until recently

562
00:33:17,280 --> 00:33:20,160
Speaker 1: still planned by a technology that was used to genetically

563
00:33:20,200 --> 00:33:23,520
Speaker 1: engineer things like corn and soybean, and it took a

564
00:33:23,520 --> 00:33:26,240
Speaker 1: while before they got to where they were suing each

565
00:33:26,240 --> 00:33:30,440
Speaker 1: other over patents. I mean they were again trying to

566
00:33:31,280 --> 00:33:34,640
Speaker 1: get positions so that they would have each company would

567
00:33:34,640 --> 00:33:38,320
Speaker 1: have their own patent portfolio, but to actually have patent

568
00:33:38,320 --> 00:33:40,160
Speaker 1: infringe in suits took a while. Now, part of that

569
00:33:40,280 --> 00:33:44,240
Speaker 1: might be because in those technologies, the product that would

570
00:33:44,240 --> 00:33:48,520
Speaker 1: actually go out to the market required more government approval,

571
00:33:48,880 --> 00:33:50,560
Speaker 1: So like if it was a drug it would take

572
00:33:50,760 --> 00:33:55,480
Speaker 1: FDA approval, or if it was genetically engineered corn and soybean.

573
00:33:55,560 --> 00:33:58,760
Speaker 1: They were part of agricultural approvals that you had to

574
00:33:58,760 --> 00:34:02,360
Speaker 1: go through, so that may be delayed the time to market,

575
00:34:03,120 --> 00:34:07,520
Speaker 1: whereas these products they're not as regulated. There's some groups

576
00:34:07,520 --> 00:34:09,640
Speaker 1: they have to go through, but it's not as regulated,

577
00:34:09,680 --> 00:34:12,160
Speaker 1: so they're faster to market. And maybe that's by the

578
00:34:12,239 --> 00:34:14,840
Speaker 1: reason why you see the litigation so early in the

579
00:34:14,880 --> 00:34:17,640
Speaker 1: industry is because people are getting to the market pretty quickly,

580
00:34:18,360 --> 00:34:21,280
Speaker 1: and then people who have patent positions want to protect

581
00:34:21,280 --> 00:34:25,480
Speaker 1: those markets. They're suing a competitor mo Chief food Works

582
00:34:25,680 --> 00:34:28,680
Speaker 1: for infringement. Tell us a little about the lawsuit. Well,

583
00:34:28,840 --> 00:34:32,879
Speaker 1: Possible Foods has, like we discussed before, they have a

584
00:34:32,880 --> 00:34:37,960
Speaker 1: pretty wide ranging portfolio of patents, and they sued on

585
00:34:37,960 --> 00:34:41,399
Speaker 1: one particular patent. It covers the claims are to a

586
00:34:41,440 --> 00:34:45,040
Speaker 1: beef replica product and it contains a certain percentage of

587
00:34:45,040 --> 00:34:49,160
Speaker 1: the heat containing protein, and they sued Moti Food Works,

588
00:34:49,160 --> 00:34:52,160
Speaker 1: who has just recently come out with a products started

589
00:34:52,160 --> 00:34:56,320
Speaker 1: promoting and commercially selling the product, and they sued Motif

590
00:34:56,880 --> 00:35:01,120
Speaker 1: for infringement of this one patent legend that it contains

591
00:35:01,120 --> 00:35:04,160
Speaker 1: a heat containing protein and it contains the other ingredients,

592
00:35:04,160 --> 00:35:07,600
Speaker 1: but really focusing on this team containing protein, and part

593
00:35:07,600 --> 00:35:12,279
Speaker 1: of the evidence that they submitted with their complaint were

594
00:35:12,360 --> 00:35:17,040
Speaker 1: quotes just from the website of Motif food Works showing

595
00:35:17,160 --> 00:35:21,440
Speaker 1: that they're promoting their product as having a heat containing protein.

596
00:35:21,680 --> 00:35:25,960
Speaker 1: And then Impossible Foods also enclosed copies of documents from

597
00:35:26,120 --> 00:35:32,799
Speaker 1: the regulatory paperwork that Motif filed showing that in that paperwork,

598
00:35:32,960 --> 00:35:36,000
Speaker 1: according to the Impossible Foods, they admitted that they contained

599
00:35:36,880 --> 00:35:41,279
Speaker 1: a heam compound similar to we're the same as which

600
00:35:41,320 --> 00:35:44,560
Speaker 1: covered by the patent of Impossible Foods. So it's a

601
00:35:44,600 --> 00:35:48,680
Speaker 1: straight patent infringement student it's pretty standard type of suit.

602
00:35:49,120 --> 00:35:53,320
Speaker 1: How expensive is this kind of patent litigation? Patent litigation

603
00:35:53,400 --> 00:35:56,600
Speaker 1: is expensive, yes, so that's also maybe part of the

604
00:35:56,600 --> 00:35:58,600
Speaker 1: reason why you don't see it in the young industry,

605
00:35:58,640 --> 00:36:03,000
Speaker 1: as it's expensive. But Impossible Foods is pretty well financed.

606
00:36:03,400 --> 00:36:07,479
Speaker 1: You can just read from the industry newsletters and such

607
00:36:07,560 --> 00:36:10,600
Speaker 1: that they're they're well financed, so I guess they're able

608
00:36:10,640 --> 00:36:13,160
Speaker 1: to afford it, and they hired a big time law firm,

609
00:36:13,239 --> 00:36:16,160
Speaker 1: well known law firms, so it's not cheaper than bring

610
00:36:16,200 --> 00:36:19,359
Speaker 1: a lawsuits like this. If they win, what effect does

611
00:36:19,400 --> 00:36:22,800
Speaker 1: it have? If they win, they will get money damages,

612
00:36:23,120 --> 00:36:26,120
Speaker 1: which at this stage probably would not be that huge

613
00:36:26,200 --> 00:36:29,680
Speaker 1: of an amount of money total, because Motif is just

614
00:36:29,719 --> 00:36:32,440
Speaker 1: getting into the markets. There's probably not that many sales.

615
00:36:32,480 --> 00:36:35,000
Speaker 1: So you might even question at the beginning whether the

616
00:36:35,040 --> 00:36:39,279
Speaker 1: amount of damages that Impossible Foods could get, whether the

617
00:36:39,400 --> 00:36:42,200
Speaker 1: amount of damages would equal the cost of bringing the lawsuit.

618
00:36:42,280 --> 00:36:45,920
Speaker 1: But they could potentially also get an injunction to stop

619
00:36:46,480 --> 00:36:50,640
Speaker 1: Motif food Works from selling their products. I mean, does

620
00:36:50,680 --> 00:36:53,600
Speaker 1: it have an effect on their position in the industry,

621
00:36:53,920 --> 00:36:58,600
Speaker 1: on the validity of their patents? Is there any broad effect? Well,

622
00:36:58,760 --> 00:37:01,080
Speaker 1: does heam containing comp and a sort of the crown

623
00:37:01,200 --> 00:37:03,360
Speaker 1: jewel for Impossible foods, And I'm sure they want to

624
00:37:03,360 --> 00:37:07,560
Speaker 1: stop anybody that even alleges that they're using a stimilar

625
00:37:07,640 --> 00:37:10,120
Speaker 1: kind of compound. So it would at least send a

626
00:37:10,160 --> 00:37:13,360
Speaker 1: message out to the industry that they are going to

627
00:37:13,400 --> 00:37:17,040
Speaker 1: be aggressive and protecting their patent portfolio, and they're going

628
00:37:17,080 --> 00:37:20,360
Speaker 1: to be aggressive and going after anybody that is using

629
00:37:20,360 --> 00:37:22,720
Speaker 1: a compound that they think is covered by their patents.

630
00:37:22,719 --> 00:37:25,080
Speaker 1: So yes, would have that kind of an effect. I'm

631
00:37:25,080 --> 00:37:27,560
Speaker 1: sure it would cause young companies to pause, because a

632
00:37:27,600 --> 00:37:30,800
Speaker 1: young company getting food for patent infringement and it's expensive

633
00:37:30,800 --> 00:37:33,279
Speaker 1: for them to defend themselves also, so it's going to

634
00:37:33,360 --> 00:37:36,800
Speaker 1: give them some pause. How would it affect Impossible Foods

635
00:37:37,480 --> 00:37:41,320
Speaker 1: patent portfolio, and that's hard to say. Patent portfolio Impossible

636
00:37:41,360 --> 00:37:45,880
Speaker 1: Foods right now has not been challenged, So it would

637
00:37:45,880 --> 00:37:50,640
Speaker 1: provide an opportunity for somebody to challenge whether the Impossible

638
00:37:50,680 --> 00:37:53,600
Speaker 1: Foods patents are too broad or whether they really are valid.

639
00:37:54,000 --> 00:37:58,439
Speaker 1: So potentially have that effect, but that would also take

640
00:37:58,520 --> 00:38:01,840
Speaker 1: motif having enough need to fight that battle. There's a

641
00:38:01,880 --> 00:38:05,319
Speaker 1: related patent of impossible foods right now in Europe that's

642
00:38:05,400 --> 00:38:10,560
Speaker 1: under opposition. It's not the corresponding European patent to the

643
00:38:10,560 --> 00:38:14,160
Speaker 1: one that's in the Impossible Foods lawsuit, but it's related.

644
00:38:14,200 --> 00:38:15,600
Speaker 1: It's I don't know what you might want to call

645
00:38:15,600 --> 00:38:19,440
Speaker 1: it a cousin. They're connected through a complicated chain of

646
00:38:19,600 --> 00:38:25,279
Speaker 1: patent applications, and that patent in Europe is under opposition,

647
00:38:25,320 --> 00:38:29,439
Speaker 1: which means the European patent granted and some company, through

648
00:38:29,440 --> 00:38:31,960
Speaker 1: a law firm, filed an opposition and we just don't

649
00:38:32,000 --> 00:38:34,000
Speaker 1: know what company it is because they thought it just

650
00:38:34,080 --> 00:38:37,280
Speaker 1: through the law firm and they attacked the European patent

651
00:38:37,440 --> 00:38:42,279
Speaker 1: for being an unpatentable over prior art. It's not saying

652
00:38:42,280 --> 00:38:46,000
Speaker 1: it's not novel, it's it's obvious and for some reasons

653
00:38:46,000 --> 00:38:50,680
Speaker 1: relating to claim terminology, and the preliminary opinion of the

654
00:38:50,719 --> 00:38:54,760
Speaker 1: European Patent Office was that the claims were not valid,

655
00:38:54,960 --> 00:38:57,880
Speaker 1: that they were not novel, and that they were obvious

656
00:38:57,960 --> 00:39:00,520
Speaker 1: over a bunch of prior art. That was it. Now,

657
00:39:00,520 --> 00:39:03,640
Speaker 1: whether that prior art has any effect on the U.

658
00:39:03,719 --> 00:39:06,120
Speaker 1: S patent, I don't know. I haven't studied it carefully.

659
00:39:06,120 --> 00:39:10,319
Speaker 1: The European patent is somewhat broader than the U. S

660
00:39:10,360 --> 00:39:14,319
Speaker 1: patent o im Possible Foods, but you can see that

661
00:39:14,400 --> 00:39:17,960
Speaker 1: there's potentially a similar line of attack in the United

662
00:39:17,960 --> 00:39:20,520
Speaker 1: States that could be used, similar to what was used

663
00:39:20,520 --> 00:39:23,960
Speaker 1: against that European pattern. The European opposition hasn't ended yet.

664
00:39:24,040 --> 00:39:26,520
Speaker 1: The evidence is pretty much already there. So if some

665
00:39:26,719 --> 00:39:30,040
Speaker 1: US company like motif I wanted to see if there

666
00:39:30,160 --> 00:39:33,040
Speaker 1: was a possible line of attack using the evidence that

667
00:39:33,120 --> 00:39:38,520
Speaker 1: was submitted in Europe that's already available. If Impossible Foods loses,

668
00:39:39,200 --> 00:39:43,839
Speaker 1: do its patents become questionable? Are there more lawsuits if

669
00:39:43,880 --> 00:39:46,560
Speaker 1: they lose? The case depends on the grounds they'd lose

670
00:39:46,560 --> 00:39:49,880
Speaker 1: the case. They could lose it because studuled jury, the

671
00:39:50,000 --> 00:39:54,040
Speaker 1: court determines that the motif product doesn't really infringe, it's

672
00:39:54,080 --> 00:39:57,600
Speaker 1: just not covered by the Impossible Foods patent. So in

673
00:39:57,640 --> 00:40:00,480
Speaker 1: that respect it would have some impact, but not serious

674
00:40:00,560 --> 00:40:03,560
Speaker 1: impact on the rest of portfolio. But suppose the court

675
00:40:03,600 --> 00:40:08,120
Speaker 1: finds that the Impossible Foods patent is invalid because it

676
00:40:08,200 --> 00:40:12,719
Speaker 1: covers prioritis either anticipated by or it's obvious over prior art.

677
00:40:12,800 --> 00:40:15,080
Speaker 1: I think it's not down because of prior art. Maybe

678
00:40:15,160 --> 00:40:18,759
Speaker 1: that prior art is potentially impactful against the other parts

679
00:40:18,760 --> 00:40:21,960
Speaker 1: of the portfolio of Impossible Foods because the current patent

680
00:40:22,120 --> 00:40:25,040
Speaker 1: that's in the lawsuit is drafted in one way and

681
00:40:25,080 --> 00:40:27,520
Speaker 1: that focuses on certain elements. So the prior arch could

682
00:40:27,600 --> 00:40:31,040
Speaker 1: knock out that patent, and maybe that priority would be

683
00:40:31,120 --> 00:40:34,359
Speaker 1: useful to attack other claims that other patterns owned by

684
00:40:34,360 --> 00:40:37,520
Speaker 1: Impossible Foods. But their portfolio is pretty broad. It might

685
00:40:37,520 --> 00:40:39,239
Speaker 1: not have that much of an impact because they have

686
00:40:39,280 --> 00:40:41,880
Speaker 1: a lot of different patents claiming the subject matter and

687
00:40:41,960 --> 00:40:44,960
Speaker 1: lots of different ways. But this is one of the

688
00:40:45,000 --> 00:40:49,240
Speaker 1: broader ones, I think, to the product itself. So potentially

689
00:40:49,280 --> 00:40:51,560
Speaker 1: it could have an impact, but they have a lot

690
00:40:51,600 --> 00:40:54,680
Speaker 1: of other patents in their portfolio that would still be standing.

691
00:40:54,960 --> 00:40:57,440
Speaker 1: Thanks so much for being on the show. That's Leonard's

692
00:40:57,480 --> 00:41:00,800
Speaker 1: Fanson of Bert Stewart, Colash and Bert. And that's it

693
00:41:00,960 --> 00:41:03,600
Speaker 1: for the edition of the Bloomberg Law Show. Remember you

694
00:41:03,600 --> 00:41:06,040
Speaker 1: can always at the latest legal news on our Bloomberg

695
00:41:06,120 --> 00:41:09,359
Speaker 1: Law Podcast wherever you get your favorite podcasts. I'm June

696
00:41:09,480 --> 00:41:11,400
Speaker 1: Russo and you're listening to Bloomberg