Now IH have lost E-Cat License and IP, who will manufacture E-Cats in the US?

Dewey I can't handle all this hype
What you're doing is pretty funny but it's easy and worthless to play on people's emotions, even for the right reasons

Quote from Dewey Weaver

he also plans to try and hang on to his shekels.

dayum son this is straight /pol/ here

Quote from axil

I thought that any information published about a system in the public domain made that information "OPEN SOURCE".

Not necessarily. It depends on details. There are many here that are not being considered. I found that patent confusing, a mish-mash. But there is much common misunderstanding about patents. Patents can be revised. They might be filed as a mess, in a terrible state, just to establish priority. I'm not looking at the particular patent here, but there is one that did include Lugano report material copied.

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The Lugano report was published in the open and was discussed in many blogs in hundreds of posts. That Lugano report and the information that it contained is open source and in the public domain. Then there is all the replications of the Lugano reactor. They as also open source. How can IH patent that system as described in the Lugano report as their IP?

The Lugano report was, I'm seeing claimed, of a device manufactured by Industrial Heat. The Report does not disclose how to make a Lugano reactor. Supposedly the patent does.

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The Lugano report is Prior art.

Not if it hasn't been patented, and the patent applicant was involved in that supposed "prior art."

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I am thinking that IH is incompetent in many if not all facets of the business that they are in. Can anyone restore my confidence in IH as a capable LENR developer?

Why do you need or want confidence in them? Are they asking for your money? Who are you, anyway?

The patent attorney I'm talking with says that a patent like this might be filed by an attorney just acting out of general instructions and materials. This patent does not inspire me with confidence. It was not intended for that purpose, and part of that is that the Lugano report completely sucked, and utter nonsense from the Lugano report was just tossed in the patent, and much or most of it was irrelevant to a patent. It is not necessary in a patent to establish that a device works. (That was necessary for a time with LENR patents, because of a USPTO practice that, my opinion, was unconscionable, but in the only known test case, it was sustained, which could be incompetent prosecution. It is not necessary any more, the USPTO has apparently reverted to prior practice of granting patents without proof actual operability.)

Quote from Rends

If IH would have been sure that the device is not working as claimed, or better is not working in a manner, that the COP target, set in the licence agreement was achieved, then they would definitely had pointed this clearly out "COP bigger than X not achieved", but they didn't!

I'm seeing this over and over, a radical misunderstanding of what a Motion to Dismiss can do. That would be a detail, and would be irrelevant to the motion to dismiss, i.e., a claim that what was declared in the complaint was "wrong." That cannot be a part of a motion to dismiss. The motion can only consider what is in the complaint or the attached exhibits. They have, with the very brief note, hinted at what they might allege in an actual Answer.

Some seem to imagine that their Motion is their Answer, their entire case. It does not even begin to present their actual defense, beyond that hint, which was dicta. I.e., the judge will not actually consider it in making a decision on the Motion. The Motion only points to defects in the Complaint, serious defects.

The plaintiff will then, likely, present, in writing, arguments on the Motion. The Judge is unlikely to rule on the motion without the plaintiff having a full opportunity to answer it. I'm told that it is possible a ruling will be issued without a hearing, based on written arguments; it's really up to the Judge, if I'm correct. The issues at this point are purely legal, not factual. "COP" is a factual issue, not a legal one.

Quote from Rends

So we have two (main) reasons for the dismiss, the first one is the time issue of §5 and the second is the allegation that a wrong Ecat version was used. The first allegation is form my point of view definitely false, because in the valid §5 of the second amendment is no deadline and what the 6 cylinder (sounds like my BMW engine ) Ecat is, does not exist as an information.

But the main point of the motion to dismiss is the missed deadline and this is definitely out of the race and therefore the court will most probably decided to carry out the trial.

This is confused.

Rends is attempting to reduce the Motion to two "main" issues. He then does not state them accurately. That's what happens when we attempt to reduce complex issues to a smaller number. Our description loses detail and can change what is presented, in ways we will not notice, since we believe we are presenting what is important.

A basic issue is not being understood. This Motion addresses aspects of the complaint that are contrary to law or that are fundamentally defective in some way, as presented. It is possible that the defects can be remedied, but until they are, the Complaint is defective and the case, it is argued, cannot continue.

"the time issue of §5" What's that? Rends is not explicit, but perhaps this was previously established. This must refer to Section 5 in the original Agreement, about the Guaranteed Performance Test. Rends thinks the issue is "false," but this is showing a lack of understanding, again, of the issues. The original agreement was explicit and the GPT was not performed timely, that's obvious. However, then, there is the alleged 2nd amendment. The original Agreement provided (16.9) that it could be amended only by a "written instrument signed by the parties." Rossi's suit depends on "strict performance." I.e., he claims that IH owes him $89 million because the GPT was performed. He has this in the complaint:

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62. In October 2013,IH, ROSSI and LEONARDO executed the Second Amendment
to License Agreement ("Second Amendment") which, in relevant part, formally eliminated the
requirement that the Guaranteed Performance test period be commenced immediately upon
delivery of the plant and instead requiring that the Guaranteed Performance Test period would
commence on a date agreed to in writing by the parties. A copy of the Second Amendment is
attached hereto as Exhibit "D."

The document shown was not signed by all the parties. It was signed by Darden, for IH, by Rossi for himself, and the signature spaces provided for Ampenergo and Leonardo are blank. Now, the document may exist as copies, and as long as the collection of copies is signed, the agreement would be valid. But the Complaint does not allege that such other copies exist. This is could be considered fatal to the amendment, as to relying on it for strict performance. That's not the end of the question, necessarily, but to take this further, the plaintiff would need to allege what they have not alleged. Hence this stands, until corrected. Rends is simply incorrect.

The Motion to Dismiss has

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Proposed Second Amendment § 3 (emphasis added). AmpEnergo, Inc. (“AEG”), a party to the License Agreement and the Proposed Second Amendment, never signed the Proposed Second Amendment. Id. at 3. The Proposed Second Amendment also addressed the testing of a “Six Cylinder Unit,” not the E-Cat unit alleged in the Complaint to have been tested. Id. § 1.

I will add that Leonardo also did not sign. What's "false"?

Further, no explicit date setting document (in writing by the parties) is alleged. (Since the amendment itself is challenged, that further detail need not be challenged, perhaps. I think I'd have mentioned it.)

This is court process, it is not a discussion on an Internet blog or forum. Every alleged fact will need to be backed with evidence or specific testimony on personal experience. In this case, essential facts for the plaintiff to have a cause of action must be alleged in the Complaint (not proven, that comes later). Now, I can easily look at this and decide that the conduct of the parties appears to be such that the signature issue is a formal defect, not a substantial one. But to do that I have to add in a lot of understanding and information that is not present in the Complaint. From the Complaint itself, the claim is defective, and this cuts to the core issue, whether or not the $89 million was due. That's a specific performance issue, relying on a strict intepretation of the wording of the Agreement, and if someone is going to insist on specific performance, with all other considerations out the window, they should not be suprised to find that the other party does the same. No signature? Too bad! Better luck next time!

The Plaintiff might be able to fix this one. This is, however, the tip of the iceberg, one facet of what is visible in the Complaint itself.

http://www.infinite-energy.com…ustrial-heat-lawsuit.html

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French: This Complaint is so flawed that we might see Court Motions to have it clarified before the defendants file their Answers.

He told you so.

A Motion to Dismiss is the extreme of this, that's all. If the Motion is not granted in full, it might be granted in part and the plaintiff may be given time to amend their complaint. If it is granted and the Complaint is dismissed, it might be with or without prejudice. Given the claims, I'd expect that if it is dismissed, it would be without prejudice, and the plaintiffs could refile. If the plaintiffs are intransigent here, they could end up with a dismissal with prejudice, they could not refile. I don't know how common this would be, I'm not a lawyer, I'll say once again.

The attorney I was talking to said that the Judge, dismissing the case, might suggest that the plaintiff consult counsel and attempt settlement without legal action, and if the case is refiled, get rid of the unnecessary fluff and emotional reaction.

As filed, this case will, my opinion, heavily damage Rossi's ability to obtain corporate support in the future. I could write extensively on how it would do this, starting with his attempt to pierce the corporate veil, something that the IH attorney skewers extensively, and add in to that the fraud claim. These would indicate to corporate officers that if they get involved with Rossi, and something breaks down, they could be personally sued.

From the Motion, on Count VI:

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Parties may not recast breach-of-contract claims as tort claims.

If you don't understand this, ask. This was brought up by David French. The possible essence of an action here, if the facts are as alleged by the plaintiff, is a collection action for $89 million. It was certainly premature. I'd expect a demand letter, etc., but to the contrary, the Complaint was filed the day before the $89 million was allegedly due. (A confusion of "5 working days" with "5 calendar days," I suspect.)
(continued)

(continued)
There are many other issues raised in the Motion that are of major importance. A fascinating one is that the defendants claim that they owed Rossi no duty to maintain the secrecy of Rossi IP. Not from the Agreement, anyway, and it is a reasonable construction of that Agreement that they could disclose the information they received to anyone that suited them.

Who wrote that agreement?

Suppose you have an agreement with someone and your expectation and understanding is that they will protect your secrets, but you don't actually have a binding agreement with them. If those secrets are important to you, about the dumbest thing you could do is to sue them claiming fraud and the kitchen sink, looking for very heavy damages that could bankrupt them, personally. Would you then expect that they perform on an informal understanding, just to please you?

This is what I suspect: Rossi was so focused on this 1 MW test, his chance to redeem himself before the world that had treated him so badly in the Petroldragon affair, that he focused almost entirely on that, and making that happen, instead of all these other details. He wanted that test done his way, not the way that others and fully independent experts wanted. He pushed and demanded that IH do it his way, and IH humored him. To a point. Not to an $89 million point. Rossi, believing he had a fixed and clear agreement, forgot about a basic principle of business law, if he ever knew it: keep those who work with you happy.

Was the GPT positive? We are seeing lots of opinion, some based on people who may have seen it, that it was inconclusive like many other tests of Rossi technology. Why would all those tests be inconclusive? Well, they were done the way Rossi insisted on, which he, to give this the most positive construction, was clear and fully adequate. But they weren't. There were loopholes one could drive a truck through. This is all about Rossi being thoroughly convinced that he's right, and what others say does not matter.

The Agreement attempted to handle possible issues by declaring an Engineer Responsible for Validation. So this one person could say Yes or No to an $89 million payment. The Agreement actually provides that he be a "nuclear engineer." Why? This is an HVAC issue, as Jed Rothwell often points out. A nuclear engineer might have some of the necessary skills, but it's not what I'd think of. In any case, it simply isn't as simple as many think, i.e., strict performance. ERV signs, therefore $89 million. The law and courts will look at equity. Rossi does have a prima facie case, but there are hosts of details that could take him down, such as the possible invalidity of the time extension, or Rossi's exclusion of experts from the "customer area," when all appearances are that the customer was a dummy company set up to run the test. As to many details, we only have rumors and Rossi Says.

As Dewey Weaver points out, Rossi is running headlong into reality. I hope he has a safety hat on.

Could IH be a bunch of greedy bastards? I don't expect it, but how would I know? I know that they are supporting other LENR research and that those researchers are still happy with them. But that proves nothing.

On the other side, again and again Planet Rossi claims such and so and this and that, based on Rossi Says. None of this is worthwhile. Once again, I urge people to actually read Mats Lewan, An Impossible Invention, to get a picture of the Rossi personality. Mats is not necessarily a neutral observer. From what we know, if one confronts what is questionable about Rossi and his technology, no more access, you become a snake or clown. (Krivit didn't help matters by being a snake and clown.) To keep access to Rossi, kid gloves were required. I don't blame him for this, because access to Rossi is important, but ... for the rest of us to understand what is going on, we need to step back and consider what we actually know. What has been independently confirmed?

Quote from Rends

Pace had identified three central issues, that should motion the court to dismiss the complaint filled by Leonardo/Rossi :

"move" or "convince." Carry on.

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- No performance in a specific period of time
- Impermissible fraud accusations
- Impermissible lumping together of Defendants

Rends is referring to the Motion Introduction.

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But instead of exactly pointing out where the accusations in the complaint are wrong, he himself raises suspicions by presenting a very simple answer, to all the questions, the fault is ...

- a missing signature

This is a ridiculous summary. First of all, to repeat, the Motion will not address "all the questions." It will only address defects in the complaint.

The Complaint has eight "Counts." These are covered in the Motion by eight "Arguments" with corresponding numbers. Each one of these Arguments is, then detailed on the point. In only the first of the eight Arguments is the signature issue mentioned. From out point of view as the public, this is a minor technical issue. However, for the lawsuit, it's part of the core claim by Rossi.

Count I ("Breach of Contract [Non-payment]") This has a major focus on the signature issue. I'll return to this below.

Count II ("Breach of Contract [Exceeding scope of license]" My brief summary. The claim was bullshit, based on misunderstanding of patent law, which comes up later. For example, Rossi essentially whines about Darden saying he had an "ownership interest" in the IP. so, suppose he made a mistake. Take him to federal court? What damage ensued? Not alleged. And more like this. The signature issue is not mentioned.

Count III ("Unjust enrichment") ... They dismantle the unjust enrichment claim based on legal authority. For a common understanding here, the core claim is that IH did not pay Rossi $89 million. What is the "unjust enrichment" other than that? Rossi claims all kinds of things as unjust enrichment that aren't. A failure to pay on a contract is not unjust enrichment, it is failure to pay. A collection action, as French pointed out. The signature issue is not mentioned.

Count IV ("Misappropriation of trade secrets.") They dismantle this. The signature issue is not mentioned. (I'd say that Rossi is basically screwed over this one. The only trade secrets he has left would be what he did not disclose to IH, i.e., violating the agreement.

Count V ("Civil Conspiracy") They dismantle this. If curious, read the motion. "Civil conspiracy" does not have the popular meaning here, it has a meaning at law. No mention of the signature problem.

Count VI ("Fraud and Deceit") Such a claim must state facts, not merely conclusory declarations. I.e., it is not enough to claim that someone committed fraud and deceit (which must be intentional), facts showing this must be asserted. Again, read the Motion. This is the section with the comment, "Parties may not recast breach-of-contract claims as tort claims." A breach of contract is a kind of tort, but fraud and deceit must be separate, additional actions. Otherwise, consider this. You buy a car, using a signature loan. You fail to make the payments. The lender has a claim against you for what you owe under the loan contract. Can the lender also sue you for "fraud and deceit" on the basis that you didn't intend to pay? Generally, no. I could go on. The Complaint claims were massively defective. No mention of signature.

Count VII ("Constructive and Equitable Fraud"). This is a different kind of fraud. Basically, the IH attorneys take this apart as requiring a "a duty under a confidential or fiduciary relationship [that] has been abused." Again, this has specific meaning at law. No signature problem is mentioned.

Count VIII ('Patent Infringement") This Count seems to be based on the idea that applying for a patent could be patent infringement. No. Never. A patent application can be invalid. Read the motion. If you do and still believe that Rossi's claims of patent infringement in the complaint are valid, well, I have no idea what you could do to begin thinking clearly. They provide evidence which they even quote. I's completely explicit. No, no and no, and what part of no is not unclear? No signature issue is raised.

Then there is Argument IX, where the improper lumping together of defendants in several counts is covered. No mention of the signature issue.

Basically, the reduction of this Motion to just the signature issue is not matched by what is actually in the Motion.
(continued)