Industrial Heat Files Motion to Dismiss Rossi Lawsuit

1st Official Post
    • Official Post

    [feedquote='E-Cat World','http://www.e-catworld.com/2016/06/03/industrial-heat-files-motion-to-dismiss-rossi-lawsuit/']Thanks to Mats Lewan for posting a newly filed motion to dismiss the case that Andrea Rossi has brought against them. Here’s the introduction: The various claims pled in the Complaint all revolve around two central contentions – that IH and IPH were required to pay Leonardo $89 million under a License Agreement and that […][/feedquote]

    This portion of the motion to dismiss should be interesting to those who have been claiming Dewey is making up fantasy information:


    "1. Because Defendants are not permitted to introduce facts outside the Complaint and its Exhibits, this motion does not address, for example, the numerous errors in Plaintiffs’ purported “Guaranteed Performance Test” that the Complaint purposely ignores (such as departing from the purported test plan, ignoring inoperable reactors, relying on flawed measurements, and using unsuitable measuring devices)."

    • Official Post

    Early on when the suit was filed by Rossi, and the contract was revealed for the first time, many noted how one-sided the licence was in IH's favor. This response by IH makes that point to the court many times, as they legally shred Rossi's accusations. The contract gives them such wide latitude to do just about anything with the Ecat and the IP, it almost makes Rossi look foolish to claim, as he has, that they had no right to do this or that. They had EVERY right though to do what they did...it's written plain as day into the contract!


    As others have said, IH's motion is all about the legalities, and nuances pertaining to contract law that they contend justifies their request to dismiss outright...not on the merits of the Ecat. Although they carefully slip in there that -while this is not the venue, the test was not done properly. Very possible, if IH's request is rejected, they will bring out their big guns (evidence of fraud, incompetence) in subsequent phases.


    In reading IH's case, which they make very understandable...even to a layperson like me, does make Rossi look legally naive. As did David French conclude when he analyzed Rossi's suit last month. With Rossi's suit, and latest move to unilaterally fire IH as a licensee, he appears to be letting his temper, and ignorance of contract law, dictate his moves.


    Maybe Dewey is right...Rossi soon may be taught a painful legal lesson? Never know though, Rossi may have something up his sleeve. Stay tuned.

    • Official Post

    I found this part interesting:


    "Furthermore, even if the Proposed Second Amendment was effective, it required that the Guaranteed Performance Test be conducted using a “Six Cylinder Unit.” Id. § 1. Plaintiffs have not pled, and cannot plead, that they performed their “test” from February 2015 to February 2016 using such a Six Cylinder Unit."


    Never heard of the "Six Cylinder Unit". Strange too that Rossi did not run the Guaranteed Performance Test immediately when the "Six Cylinder" unit, or whatever arrived in North Carolina as he was supposed to do. Choosing instead to persuade IH into agreeing to the "amendment", allowing for the 1 year test using the 1MW. That would have raised a few red flags.

    Trying to dismiss the lawsuit based on the test starting too late is a bit weak sauce IMO. Who was responsible for finding a client in the first place?


    I'm looking forward to the the time this becomes about whether the plant works or not, and not about contract technicalities.

    Shane,
    I agree that the contract between Rossi and IH is very one-sided, and this indicates (to me) a desire on the part of IH to "steal" Rossi's IP "for a song". Sifferkoll was completely right about this (see also his latest blog post at www.sifferkoll.se). In fact, I think that's where the focus of at least part of the discussion should be. On the other hand, I don't agree that the contract gave them "every right to do what they did" without being held in breach of contract. THAT is for a court to decide. Furthermore, the contract is somewhat murky about the $89M payment, and in my opinion contradicts itself at times.


    I might add that I'm not a lawyer, but just because something is in a contract, if it's illegal or unethical in some way, then I would expect that it would be unenforceable. For example (and this is relevant to the current case) if I sign a contract to be your slave (or in Rossi's case provide IH all of the IP that he develops in perpetuity for the rest of my life) then I would suggest that this is an illegal or unenforceable contract.


    As a final thought I would add the following. If Rossi is a fraud (e.g. his technology doesn't work) then this is a case of greedy "vulture-capitalists" being fooled by a fraudster. On the other hand, if Rossi's claims are correct, then it is a case of "vulture-capitalists" taking advantage of an inventor. In either case, there is no doubt that IH has been acting (unless it can be shown - as Dewey has in part claimed - that the contract was written by Rossi) with the goal of appropriating as much as IP as possible, while still paying a minimal (and unfair in this case) amount. Besides control of the IP (one motivation), possible greed (another motivation), another possible very strong motivation (as again Sifferkoll has pointed out) is the possible desire on the part of many groups to delay as much as possible the widespread use of LENR technology. This could explain some of IH's actions (this includes filing for patents outside their allowed territories etc. and low-key approach) and even the wording of the contract as well!


    If Rossi and IH "divorce", I think that would be for the best, since either IH does not believe in his technology (as indicated by Dewey Weaver's comments regarding the Lugano test and the 1 MW test), or they secretly believe in it (this is why they are filing patents outside the allowed territories) but want to defraud him and/or suppress/control the introduction until such time as they feel is appropriate for their and/or other entities' best interests. Of course, I could be wrong. The other possibility is that Rossi has been a liar and fraudster from the beginning, while IH have been both "vulture-capitalists" and "technically naive and incompetent" in terms of the preliminary tests which they carried out. I hope that they haven't "treated" (double-entendre) their other LENR inventors in the same way in terms of control of the IP, NDAs, restrictive agreements etc. The full truth is yet to be seen.

    For those who don't read "www.ecatnews.net", here's a salient comment from one of the posters:


    Billy Jackson • "All i am reading here is them going after technical details of the contract. This is starting to seem like the intention was to steal this technology from the beginning through legal manipulation. This is detestable. If this was the intent they should have their business license stripped from them, and if they are lawyers disbarred from where they are registered. This right here is 100% of the reason people dont trust lawyers."

    Quote from Tom Paulsen

    There is a huge difference between "stealing" and payment of 11.5m$.


    Tom,
    OK. I should have put "stealing" in quotes. What is the right word for "deceitfully attempting to pay an inventor much less than the value of his/her invention"? The idea is the same. The point here is that even if IH had believed the 1 MW test to be successful, according to their legal filing and Dewey's comments they could still refuse to pay and retain control ("license") to all of the IP. In my opinion, if that were the case, e.g. if the 1 MW test were successful, then this would be "stealing".


    I might add that this makes it likely to me that their motion to dismiss will be denied since the issues regarding the 1 MW test need to be decided on their own merits.

    • Official Post

    Quizzical,


    I agree that the courts, if they don't allow this MTD, will decide. Let me say too that I am not necessarily siding against Rossi. He actually acts as if he does have something, as his actions seem in line with someone who has been burned, and taken advantage of by someone they once trusted. Striking out publicly, and through the legal system. It may not be the smartest move on his part, but he seems to be truly hurt.


    Of course, that could be a ruse, and he is just trying to gain sympathy to squeeze a little more money out of his latest mark/sucker.


    One point that I think believers should consider, is that according to IH's motion, Rossi initially was supposed to "immediately" do the 400 Guaranteed Performance Test when IH received the "unit"...which they took delivery of in Augut 2013. Rossi was supposed to do that test using the "Six Cylinder Unit". But Rossi did not do the test for reasons unknown.


    Seems IH could have walked away then, but for some reason decided to enter a new agreement with Rossi to allow the test be carried out later, but still using the Six Cylinder. However, Rossi used the 1 MW plant instead.


    Why did he not do the test "immediately"? If he had done so, this would have been resolved long ago. Yet another missed opportunity on his part to eliminate all doubt. And why did he use the 1MW instead of the Six Cylinder for the test allowed by the amended agreement? Maybe Rossi will answer to these questions on his JONP. He may have a good reason. Maybe not.

    Quote from Shane D.

    Quizzical,


    I agree that the courts, if they don't allow this MTD, will decide. Let me say too that I am not necessarily siding against Rossi. He actually acts as if he does have something, as his actions seem in line with someone who has been burned,…


    Shane D.,
    As far as I can tell, there is no "Six Cylinder" unit in the contract. I agree that there are timing issues etc. related to the "enforcement" of the contract, but if so, then why did IH allow Rossi to carry out the one-year test? This is obviously a purely legal manipulation which sheds no light on whether or not the 1 MW test was successful.


    I might add that I couldn't care less whether or not IH lost money on this contract. They are venture-capitalists and they are willing to take risks. I am also less sympathetic to them (even if Rossi is a fraudster) because of the one-sided nature of the contract.

    It looks to me as if Rossi either didn't engage a good lawyer to help write the contract, or did, but then ignored advice.


    Ignoring advice seems to be his stock in trade. If he had listened to competent lawyers, scientists and engineers he would be a long way ahead of where he is now.

    3 (3.1) The total price for the grant of the License and purchase of the Plant is One Hundred Million Five Hundred Thousand Dollars ($100,500,000).


    5 (Paraphrased) If the Plant does not produce excess heat to the required level, then the payment of 3c ($89,000,000) will be reduced commensurate to the reduced multiple of excess power created. If the Guaranteed Performance is not achieved, then the $89,000,000 does not have to be paid, and the purchase price reduced accordingly from the value specified in 3.1

    @quizzical


    The contract is completely correct and fair for both sides.


    Nobody forced Rossi entering this agreement and I can not see that IH has done anything to breach the agreement.


    But on the contrary. They have fulfilled their previous obligations. They paid $ 11.5m for something that they had not received, if we believe IH, and for claims that are generally questionable.


    That you afterwards will not raise 89m$ corresponds to the normal human mind. Especially, if an obligation does contractually not exists, because the preconditions are not fulfilled.


    Only when it comes to Rossi, then it appears as if this normal human mind lacks in some people.


    "The contract is completely correct and fair for both sides." That is your opinion but it is not mine.


    In terms of payment of the $89M that is an issue to be decided by the Court. In terms of IP, I still think that the contract is one-sided and unfair.


    Perhaps you "can not see that IH has done anything to breach the agreement." but unless you represent IH or Rossi, you do not have all of the facts. Whether or not IH has breached the agreement will be decided by the court.


    Tom,
    Let me respond to your post in a slightly different way. It's obvious that Rossi and IH signed the contract. But that does not make it fair from an IP point of view. Also, a number of provisions of the contract may be interpreted differently. Similarly, for Rossi's and IH's actions related to the contract and to IP. Getting to the bottom of this requires both knowing all of the facts (which we don't know) as well as legal interpretation (to be done by a Court).

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