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

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.. that's all. The rest of the motion to dismiss paper is pure delusion, consisting of accusations and insinuation, no facts and even if this could also be said about the accusations in the lawsuit, then I ask myself, if Pace was really interested to convince the court to dismiss the case?

Now, perhaps Rends is familiar with a very different system of law. In the American system, it is the responsibility of the plaintiff to present a complete case. It is not the responsibility of the defendant, nor of the Judge -- nor the Jury, later, should this come to that point. Rather, the American system is adversarial. The Judge is not charged with the discovery of fact, as in some other systems of law. The judge is a neutral arbiter who insures that the parties follow rules of law and evidence. In a Motion to Dismiss, the facts alleged in the Complaint are assumed. However, there is a distinction between alleged fact and "conclusory statements." As an example, the claim that defendants intended to defraud Rossi is conclusory, not a fact established by the statements in the complaint. Rather, facts alleged in the complaint will be accepted. Did Darden say "quote", that was known to be false to him when he said it? That could be a kind of fact. What the Motion is saying is that if all the facts in the Complaint are as claimed -- or as shown in the Exhibits, and IH attorneys were careful to point out that what is in the exhibits is evidence that can contradict and thus negate what is in the Complaint -- the Complaint should be dismissed.

They are not going to say things like "but you could dismiss part and keep part." That would be doing the judge's job for her. She knows that. However, as it stands, if Rossi's attorney does not remedy the defects -- or provide cogent legal arguments for why the IH arguments are incorrect, that the judge accepts, the Complaint is toast. They are, here, arguing before an expert. She is not some bozo or bimbo.

You can learn a lot about law and about American law by reading that Motion. Or, you can sit and imagine that a document written by some of the best American attorneys is "pure delusion." The "facts" in it are entirely those shown by the Complaint and Exhibits. So there are no "new facts" there. There can't be. There can only be reference to the Complaint and Exhibits and then discussion of the legal points involved. This discussion is designed for the judge. Not for anyone else. The judge will know what they are talking about, and will not take offense at the obvious being belabored. It is their job, in fact, to belabor what is well-known, including citing authorities, so that the judge's job is made easier. The judge may cite those arguments in her decision. If they err in this, you can be sure that a competent attorney on the other side will point it out! -- and provide corrected authorities.

It's like a contest, and because attorneys are usually quite smart, it can be highly entertaining for those who like seeing clear thinking expressed with power and all the evidence needed. But if you are stuck on one side of a case, YMMV.

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We will see, I think Pace had failed in his attempt and the court will allow the trial.

The question is not yet the trial. It is more procedure. That the judge will allow the Complaint to survive unscathed is extremely unlikely. This is not just my opinion, it's the opinion of experts. The Complaint was a mess, and if you consider yourself a friend of Rossi, you'd better understand that, and hope that Rossi understands it, because, if he doesn't, he's completely screwed, blued, and tattooed.

This is what Dewey has been saying, with so many ridiculing him. Rossi is not well served by having followers who approve every move. If you are very smart, one of the worst things that can happen to you is to become surrounded by such. It makes you as stupid as the crowd. What one can hope for is at least a few followers with independent thinking, who want to see you successful, and who will warn you if they see you driving toward a cliff. And, of course, you will need to trust them, at least enough to listen carefully!

Now, on the signature issue. Beyond what was raised, the Second Agreement was also not dated. It was obviously drafted to be signed in October, 2013, but the date was not filled in, nor was any signature dated. I can't imagine an attorney overlooking this. Dating of documents is often crucial, as to putting, say, a document together with other evidence, such as the locations of parties. From the document itself, we don't know when it was signed, because it might have been delayed beyond October. Now, is that important? This is raised in the Motion because it's an obvious technical defect in the case. Without this signed agreement, the GPT was not performed as described, and the $89 million is not due (and might never be due).

However, what was the conduct of the parties? At trial, this may come out. Consider this a free gift to Rossi: if he amends the complaint to allege, explicitly, that the new test date was approved by all the parties, in writing, this defect could disappear. But that's not the limit of it. It is possible that the conduct of the parties made the acceptance of the new date obvious, and the lack of signature could be considered a mere formality (in spite of all the explicit language in the Agreement.)

There is another possibility, though, and this could be an IH defense. Suppose there was no written agreement to a new date for the GPT beginning. It was never agreed to accept this. So what then? If the second amendment is found to be valid, but there was no written agreement as to the actual starting date, this is an unperformed aspect of the Agreement, and it could still be performed.

(Notice that Rossi does not allege in the Complaint that the required written agreement on the date was ever executed.)

At this point, however, relying on technical details, ongoing, and neglecting the purpose and intentions of the GPT, and attempting to use it as a bludgeon to get IH to pay ... Bad Idea. And this is where negotiation would come in. It could be difficult, given that this suit was filed, but ... "Sorry, I was upset" can work miracles. Could Rossi ever say that?

Of course, if it's all been a fraud from the beginning ... this will come out and Rossi gets to wear blues again.

Quote from axil

(1)the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or

This is about a claim that the patent filed is invalid because it copied the Lugano report as part. But the Lugano report was not a description of the invention, as this word has meaning in patent law. This would be a description that could be used to make the invention or apply it.

Lugano was a test of the invention, and essential details were missing.

The invention is not as described, but Axil thinks it is, showing fuzzy thinking, trying to be right by citing a long chunk of law that doesn't apply, wasting all our time.

The patent may be worthless for other reasons.

Once one has a patent attorney working, they might file stuff just to establish priority, and then amend it later. In other words, what looks bad now, might not be by the time the smoke clear.

The first filing might just be a pile of stuff put together. Definitely, I was far less than impressed by that patent. A mess. So what? People are trying to draw all kinds of conclusions from these things, while being ignorant about patent law and process and procedure.

Quote from axil

Abd Ul-Rahman Lomax wrote:
axil wrote:

The invention is not as described, but Axil thinks it is, showing fuzzy thinking, trying to be right by citing a long chunk of law that doesn't apply, wasting all our time.

Any prior art cannot be patented.

That is correct, except for one thing. A patent application can include prior art. If that's all it is, the patent will be rejected, we assume. However it may add something to prior art. I have not studied this patent and the context and why a patent attorney might have filed it (I've only done two cursory scan-throughs). Basically, there can be reasons. I would not conclude incompetence from this filing without knowing the accessory conditions. This is common in this field, people are jumping to conclusions without nearly enough information. What is it, "Be the first on your block to guess the truth!"? If uit's stated as a guess, no problem. Stated as fact, when there isn't sufficient evidence, it's a problem, even if the fact turns out to be true. It's an aspect of false witness.

What I would say about the filing was that I was not impressed at all.

Quote from Rends

@Abd Ul-Rahman Lomax

I understand what you want to tell me,

Well, I don't think so, but let's see.

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but as I understand the 'legal tool' Motion to Dismiss (en.wikipedia.org/wiki/Motion_in_United_States_law#To_dismiss ) than it should be used to convince the court, that the claims against the defendant cannot cause an action under the applicable substantive law.

That is correct. This motion claims that if all is as alleged in the complaint, setting aside conclusory declarations, and allowing the exhibits presented by the plaintiff to contradict the claims of the plaintiff, introducing new new facts not found in the complaint, but only points of law, the case should be dismissed. We may sit here an imagine what the plaintiff might change to save the Complaint, but if it's needed and is not in the Complaint, the Complaint can fall. However, the plaintiff may be allowed to amend.

If the attorneys did not file this, they would be negligent as to their duty to their clients. What is truly laughable here is the claims that they should disbarred for pointing out the defects in the complaint. I think that there is some idea that defendant lawyers are supposed to push for some fuzzy idea of "justice," and the belief is they owe Rossi all this money -- because they believe what Rossi says -- and so this is all unfair. It is just legal process, and quite straightforward. If I filed an action, it would not surprise me in the least that the defendant's attorney moves for dismissal, even on completely spurious grounds, though it if were completely spurious I'd wonder if the defendant's attorney was just aiming to jack up their fees. Not my problem. Here, it is not completely spurious, at all. all the points seem reasonable on the face. That does not mean that they will necessarily be sustained, but none of this would cause a judge to laugh and think the defendant's attorney is crazy. One who thinks so is simply ignorant of law and legal process.

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And if I have a look into the lawsuit, then it is not about paying money, the core of the accusations is systematically fraud, theft of IP property and misappropriation.

What is again being shown is an inability to read and understand what is core. The core is the first claim, which is the most solid -- and maybe only -- claim in the suit, on the face of it. (This was an attorney's opinion before he saw his Motion.) The allegations then are of fraud, but the kind of evidence needed to establish that is missing, and is not alleged to exist. This is what "conclusory statements" is about. Rossi says "they attempted to defraud me," or "they defrauded me," but the specific actions which would have amounted to that, which could show that, are not alleged. "Fraud" is a conclusion. What's the basis? Again, the Motion covers this as a matter of law.

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https://animpossibleinvention.…sdce-16-21199__0001-0.pdf

CIVIL COMPLAINT & DEMAND FOR JURY TRIAL

- Rossi is the sole inventor of a revolutionary low energy nuclear reactor
- Defendants have meticulously and systematically defrauded ROSSI and LEONARDO
- no intention of paying
- misappropriated the E-Cat IP;
- illegally copied ROSSI's innovative technology and products, features, designs
- has infringed upon ROSSI and LEONARDO's intellectual property rights by actively pursuing patents in foreign jurisdiction

ROSSI and LEONARDO are filling this suit to enforce the terms of the License Agreement and to put an end to IH and IPH's continued wrongful infringement upon ROSSI and LEONARDO's valuable intellectual property.

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The foundation of the suit is that $89 million was not paid as allegedly agreed. If the $89 million had been paid, Rossi would have no basis for claiming that they had "no intention of paying," and, in fact, at that point, their intention is irrelevant. This isn't a tax case, where intention to avoid payment can be criminal. This is an action under contract law. What IH "had in mind" is irrelevant, unless some things can be established that Rossi doesn't allege. I have already addressed this. A payment default cannot then be converted to a fraud claim. The damage, if there is damage, is the default, not what IH intened. Yes, if he can establish fraud, then triple damages come into play. This is deploying a nuclear weapon, so to speak. Who is greedy here?

Every point raised above is addressed in the motion, except "low energy nuclear reactor." That's actually irrelevant. Whether the reactor is nuclear or not is not likely to be an issue in the trial. "Meticulously and systematically defrauded" is bizarre, because the first alleged action that led to the complaint was not paying the $89 million as expected. So then Rossi goes back to "they never intended to pay" and attempts to make this into a fraud and conspiracy case. This is not going to fly, on that I'm reasonably confident. This is exactly the conversion that is prohibited by law, and for very good reason, and I gave a common example. Chaos would result if this were allowed.

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And these serious accusations were more or less answered with: "we have the right to fill patent applications without permission of the inventor", "we have the right to establish a co-inventor","We can use the IP as if it is our own property","We can copy what we want" because "we have payed ~$10 Million and that's enough"

I'm not sure about complete specifics, but, more or less, and properly qualified, yes. They can file patent applications without permission of the inventor. Do you contest that? On what basis? What you are writing is directly contradicted by the points of law and arguments they raise, so I'm concluding you are not actually studying the motion; you are, rather, doing the common thing: reacting to what you don't like.

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But they have signed a licence agreement where is written in Chapter 1:

"WHEREAS Leonardo and/or Rossi are the solo owners of the patents, designs, trade secrets, technology, know-how (including atl the knowledge necessary to produce thermal energy by means of apparatuses derived from the technology), product and business plans and all other intellectual property related directly or indirectly to energy production and conversion technologies and to the development, manufacture and sale of products using such technologies, including the Energy Catalyzer ("E-Cat") the catalyzer formula used to fuel the E-Cat the "Hot Cat" and related energy production and conversion technologies (collectively, the "E-Cat IP"), and Leonardo is the producer of certain components of such systems (the "E-Cat Products"), as to which all such E-Cat IP and E-Cat Products, including, without limitation, the 1 MW E-Cat Product and the Hot Cat."

Yes. That is a recital at the beginning of that Agreement. Then, from that declared position, Rossi et al go on with they "desire to grant ...." And then the Agreement goes into great detail as to what is granted.
(continued)

(continued)

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...and then they write in the Motion to Dismiss paper:
animpossibleinvention.files.wo…/ih-motion-to-dismiss.pdf

A. Defendants’ statement about their “ownership” of the E-Cat IP is not a breach of the License Agreement.

That is correct, and they are completely correct on this. It's not even close. they did not claim complete or exclusive ownership (what they claimed was an expression of what the Agreement granted them) but suppose they had. It would have been wrong. So? A contract with me has not been breached because I make some incorrect statement about it! But Rossi is reactive. He thinks that things like this are Terribly Important.

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B. “Attempting to obtain a European patent” is not a breach of the License Agreement.

There seems to be common opinion on Planet Rossi that this is a terrible offense. You really should read the arguments in the motion, not just the summary that means so much to you. All that "meaning" fogs your mind

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C. Listing T. Barker Dameron as a co-inventor in a U.S. Patent Application is not a breach of the License Agreement.

That is correct. It's not. It could be completely incorrect, but it doesn't breach the agreement. Legal process does not follow the logic of Planet Rossi. It's clear thinking, it demands rigor.

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A. By the License Agreement, Plaintiffs permitted IH and IPH to disclose the E-Cat IP and did not protect its secrecy against IH or IPH’s use or disclosure.

This appears to be the case. They establish this from the Agreement. It seems clear to me. Read the Agreement, section 16.4. Rossi agreed not to disclose the IP to others, but there is nothing in the agreement preventing IH from disclosing it as they see fit.

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B. Defendants did not use improper means to obtain the E-Cat IP.
C. The specific acts alleged by Plaintiffs do not constitute misappropriation.

That is correct. They followed the Agreement, including paying $10 million explicitly for full disclosure of the IP, and the Agreement contained no Non-Disclosure provision,

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If I were a judge, I would even laugh vigorously and then drag the gentlemen from IH to their ears in my courtroom and ask them if they can read?

So now we know why you are not a judge.

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- Sole owner does not mean I can register a second owner/inventor anyway.
- Sole owner of IP does not mean that I can fill several patent applications base on this IP in my company name, in the US or somewhere in oversea
- Sole owner of designs, trade secrets, technology, know-how does not mean that I have the right to develop the E-Cat IP according to my own taste
- Sole owner does not mean that I can take the IP and technology make the business with another company

"A sole owner" could do all those things. Rends is quite confused here. He also has some very odd ideas about patent law. And what I think he's talking about, in such a confused way, is directly contradictory to the Agreement. IH was granted quite broad powers.

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...and then garnished all these breaches of the license agreement with a scornful derision and rip-off the sole owner by an amount of at least $90 Million and justify all this with a missing signature on a second amendment paper.

So now you repeat that error, that was shown to be utterly false, and what do you expect me to think about you if you repeat error after it was clearly shown to be false, by actually going over the Arguments looking for that? The defect in the 2nd amendment is such a fundamental problem with the Complaint that they don't go further. If the Motion is denied, they may then add additional argument for Dismissal, but if the amendment was invalid, as it was on the face, that additional argument is not necessary. It would start with the problem that the beginning of the 400 day test was not evidenced by a signed agreement of all parties, as required by the 2nd amendment. There are more layers of possible motion for dismissal, but, in the end, these are attorneys.

They DGAF. They just do their job. One of the reasons they can do their job well is that they are not attached. That then supports clarity of thought. Hey, folks, you ought to try it? Try not GAF. It can work wonders.