The Every Company has filed a motion asking a Delaware court to sanction Onego Bio for “improper duplicative litigation”. The latter, in turn, accuses The Every Co of contradicting statements made under oath.
Finnish startup Onego Bio and its lawyers “should be sanctioned” for filing “improper duplicative litigation based on knowingly false factual allegations”, The Every Company stated in a new motion submitted in a Delaware court.
The precision-fermented egg protein companies have been engrossed in a legal battle since September, with Onego Bio filing two identical lawsuits in Wisconsin and Delaware.
Last week, the court in Wisconsin dismissed the case over a lack of personal jurisdiction. But it is ongoing in Delaware, where both firms are incorporated.
Now, The Every Co is accusing Onego Bio of “wasting the court’s and Every’s time and resources for months”, calling it a “want-to-be competitor that has been unable to develop a commercial product and now seeks to buy time by using the court system to interfere with EVERY’s ability to build its business”.
The US firm is urging the District Court for the District of Delaware to dismiss the case with prejudice and impose monetary sanctions on Onego Bio and its lawyers to compensate The Every Co and deter the Finnish firm from “future baseless litigation”.
In response, Onego Bio told Green Queen it had already filed the relevant materials with the court, which address several issues, including evidence that belies sworn statements made by The Every Co’s executives.
The Every Company accuses Onego Bio of breaking federal rules
The Every Co argues that Onego Bio has violated two federal rules. The Federal Rule of Civil Procedure 11 requires a reasonable inquiry into the law and facts and a certification that the allegations are warranted and have evidentiary support.
And the section 1927 provision in Title 28 of the US code, which covers the country’s general and permanent laws, states that any attorney who “multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”.
“That is exactly what Onego has done, and the court should impose that sanction here,” The Every Co argues in the court document, while calling Onego Bio’s jurisdictional allegations “flat out false”.
“The record demonstrates that Onego spent months – likely at the direction of its attorneys – fishing in vain for statements that might support a declaratory judgment litigation while Every simply wanted both Parties to go about their business,” the filing states.
“Onego and its counsel then chose to file suit anyway – twisting and misrepresenting the dialog in an effort to manufacture subject matter jurisdiction. That is exactly what Rule 11 and Section 1927 do not permit.”
“Lawsuits should not be the norm in our industry. Filing identical, duplicative lawsuits – even more so,” The Every Co co-founder and CEO Arturo Elizondo said. “We hope this sends a signal that there are real consequences.”
He added: “We live in a society where it’s far too easy to take someone to court. Where the only winners are the lawyers. Frivolous litigation should not be rewarded. For startups to engage in this is absurd. Our space needs success stories, not infighting. Like I’ve said before, lawsuits are a waste of time and money. We all deserve better.”
Onego Bio claims The Every Co’s actions go against its statements under oath
In its filing, The Every Co also takes issue with Onego Bio’s claim that The Every Co’s animal-free ovalbumin protein contains additional amino acids that are not bioidentical to natural egg protein.
“Every provided Onego with definitive testing results showing that fact. Onego has Every’s product and could do the same testing and get the same results. Indeed, it is likely that Onego has done that testing. But Onego refuses to say whether it has done testing of Every’s product or what the results are,” it argues.
A spokesperson for Onego Bio told Green Queen: “As reflected in the court record, Every’s chief of staff declared under penalty of perjury that, to the best of their knowledge, Every has never sold [ovalbumin] protein containing additional amino acids or portions of the alpha mating factor.
“However, independent analyses conducted by a third-party university facility on commercially purchased OvoBoost and OvoPro products identified amino acid extensions not present in natural egg proteins. These findings indicate that the products are not, as claimed, identical to natural egg protein at the amino acid level, and are in fact genetically modified variants.
“Similarly, Every’s CEO declared under penalty of perjury that, to the best of his knowledge, no communications occurred with Onego investors regarding these patent matters. However, declarations submitted under oath, including one from a named investor, prove that these conversations did indeed occur.”
In the Delaware filing, The Every Co claims that Onego Bio “does not have any commercial-scale product with which it could be in competition with Every commercial products, and the only records it has produced are of a handful of shipments of samples”.
In response, the Finnish startup said: “Onego has provided to Every sales records and photographic evidence of numerous pallets of commercially available product.”
Why the companies are locked in a legal dispute
Precision fermentation involves inserting a DNA sequence into microbes to teach them to produce specific molecules when fermented. The two companies leverage the technology to produce ovalbumin, the main protein found in egg whites. Onego Bio uses a fungal strain, Trichoderma reesei, to express the protein, while The Every Co engineers Komagataella phaffii (a yeast strain).
In its lawsuit, Onego Bio has been seeking to invalidate a foundational US patent granted to The Every Co’s expression of ovalbumin in a range of hosts, while also accusing it of fraud.
The firms had been engaged in talks to establish a cross-licensing agreement and had discussed a potential merger. Onego Bio accused The Every Co of demanding “unwarranted patent licensing fees” and threatening its ability to secure investment and expand its business, as well as making false claims about the “bioidentical” nature of its protein to ovalbumin.
In response, The Every Co called Onego Bio’s attempt “desperate” and “baseless”, and claimed that the lawsuit was the result of a “months-long effort to harass Every into granting Onego access to Every’s IP”.
In the court filing in Delaware this week, the US startup states that Onego Bio “should never have brought its suit and should by now have withdrawn its false claims”. “Instead, it is using litigation to drain Every’s limited resources,” it argues.
The Every Co’s filing adds: “Each dollar that Every spends on this litigation is one less dollar that it can spend on building its business. Onego, not Every, should bear the cost of Onego’s false allegations and improper litigation conduct.”
