Since IH signed away their motion to dismiss grounds, what now for IH?

Frank politely requested that I review this response to Dewey.

Quote from frankwtu

The ERV report is not yet in the court docket. Are you suggesting IH will be putting it there soon? And when they do, are you suggesting also they will be claiming it to be 'illusory'?

Not knowing what is in the report, I cannot assess IH stragegy. Rossi may need to put the report into evidence. (I am not sure about procedure at this point. Will all documents become public?) Penon may be called as a witness, by either party. I think that tactically, it is better for IH if Rossi calls him, but I'm skating on the edge of what I know.

Quote

Well if they do it will be IH that will need to prove it is 'baseless' and do so convincingly.

The current IH position, as expressed so far, is that the report is moot. I expect that they will not attempt to argue otherwise unless it becomes necessary.

Quote

Otherwise the judge will rule the ERV report stands (as it is key to the contract) and the jury will be instructed to accept it as 'fact'.

Well, again, I'm on the edge, but my understanding is that juries determine fact and judges determine law. Litigants, however, may present alternate allegations and defenses, including contradictory ones, such as "my client didn't kill him, and it was self-defense." Addressing the ERV Report is going to be expensive. If they need to, and based on many hints we have from Dewey, IH will deconstruct the entire Rossi narrative of events. There may be a question of fact in whether or not the time for the GPT was extended by agreement. Again, what Rossi has alleged must stand for purposes of the Motion, but that's as far as that goes. It will not stand if challenged, it will require evidence, and IH may have a lot of evidence to present.

Quote

However, if IH provide evidence sufficient to cause the judge to instruct the jury to 'dismiss' the ERV report as 'illusory' then a number of claims will become 'null and void'

Again, the judge is not likely to do that. It is a question of fact, not law.

Quote

All the related IP, the related patents and of course the contract which will of course be 'illusory' as it is based on 'nothing'.

I will point out that should it be true that a particular test was totally flawed, this would have no impact on the patents and licenses. I'm warning against this kind of black-and-white, linked thinking: "If IH shows the test was utter nonsense, therefore the patents are worthless." Not so.

Quote

At that point the case will be dismissed, the patents withdrawn and the IP deemed 'worthless' as will the licences.

the patents were not filed on the basis of the GPT. Indeed, patents can usually be just ideas, not tested. That got a bit crazy around cold fusion in the U.S. but we hope that was a temporary abberation, a bit of a political nightmare.

Quote

At that stage, Rossi may appeal, only then he will need to spend his money to refute IH claims but not until. So the ball is in IH's court re the disclosure of the ERV report.

Rossi needs to establish that the report met the qualifications in the Agreements. That' sin his count. IH may then counter this.

Quote

Now if IH do not place the ERV report in the court docket with a reference/claim that is 'illusory' (does not work as claimed) then we can assume IH are not confident in the view that you Dewey, are professing on this forum.

non sequitur.

Quote

The best thing that IH could hope for is to have Rossi throw a 'wobble' and either publish the ERV report himself or place it in the court docket for public view. Then of course to 'blogosphere' would set about destroying it on IH's behalf for free whether it is 'illusory' or 'substantial' as we have seen.

Well, I don't expect Rossi to do that unless he must. It is possible, I think, to have evidence that is not for public view. It's done where revealing it can cause harm. However, I don't think the ERV Report will have necessary IP in it. I don't think it will go into the crucial internal details of the devices. So ... I don't expect it to remain private. IH can reveal it at any time, outside of court. To be used in court, someone has to attest to it, there is no such thing as evidence that stands on its own, if I'm correct.

Quote

What do I think will happen? IH will cast enough doubt on the ERV report (if it ever gets to court) to suggest Rossi has 'something' but not COP>6. If they can achieve that they keep the licences, the IP, the patents and of course do not have to pay Rossi $89 million. It will be a bonus if they can also prove he did not pass on the IP and assistance required under the contract.

The analysis is defective in that the ERV, re-analyzed as I'm now suspecting may be necessary, could show COP 1.0 and yet they can keep the IP. Linking those is an obvious error. IP is IP and does not depend on a specific test result.

Quote

But maybe Rossi will win, who knows!

Lawyers tell me not to predict who will win. First of all, common is that both lose. Setting that aside, look for the court to seek equity. What would that be? Let me describe what might not be equity.

1. IH has no useful IP, has been unable to make devices that work, but because of the technical details of the contract, they must pay $89 million. Even worse: they lose the IP that this was paying for. Even worse: triple damages as claimed by Rossi for fraud. Even worse, personal liability for Vaughn and Darden, and liability for Cherokee. Just recognize this: what Rossi requested was far, far outside of equity. That he requested that is going to make any major investor leery of working with him in the future.
2. IH makes money hand over fist with Rossi IP, but Rossi gets nothing because he failed to get formal written approval for whatever.

An attorney told me that the judge might knock their heads together and say, settle this, you dolts! Sane attorneys on both sides will be happy.

The wild card: IH concludes that Rossi actually defrauded them, the IP is worthless, and they want their money back. In that case, they would be willing to give up the IP, but ... they also spent a lot of money. Some of that they can chalk up to experience. Rossi also has to worry, I think, about a fraud prosecution. Rossi does not understand that being stupid might look like fraud. I.e., using inadequate test methods, insisting on them, could look like deliberate deception.