Have IH let their E-Cat License lapse by inaction?

    Quote from Abd Ul-Rahman Lomax

    ...


    I've been meaning to say, Abd Ul-Rahman Lomax, that I agree with most of your legal analysis.


    On the "customer" guaranteed performance test I don't see a problem with the semi-unsigned contract, or even test equipment substitution if the ERV approved and it meets the spec (which supposedly included a list of approved equipment). By bringing visitors to (and raising money from) the test we have :


    https://en.wikipedia.org/wiki/Implied-in-fact_contract (aka constructive agreement)


    An implied-in-fact contract (A.K.A. "implied contract") is a contract agreed by non-verbal conduct, rather than by explicit words. As defined by the United States Supreme Court, it is "an agreement 'implied in fact'" as "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred,
    as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding."


    If Rossi (said) did in fact offer to return the $10M and cancel the contract, I'm surprised that he didn't include that as an alternative (pay up or cancel).


    ps The contract sucks ... I wouldn't have signed it for either party.


    Edit : didn't mean to include Jed quote -- no preview that I can see.

    Quote from Alan Fletcher

    I've been meaning to say, Abd Ul-Rahman Lomax, that I agree with most of your legal analysis.

    Thanks.


    Quote

    On the "customer" guaranteed performance test I don't see a problem with the semi-unsigned contract, or even test equipment substitution if the ERV approved and it meets the spec (which supposedly included a list of approved equipment).

    There is a problem. Then there is estoppel: https://en.wikipedia.org/wiki/Estoppel. Estoppel may resolve the problem, but requires consideration of fact. At this point, did the plaintiff assert the necessary facts to show estoppel? My sense is, no. Rossi did not. So IH might still prevail. Again, I have not completely studied the Memorandum in response to the Motion to Dismiss. My position may shift as I find and consider more.

    Quote

    By bringing visitors to (and raising money from) the test we have :


    https://en.wikipedia.org/wiki/Implied-in-fact_contract (aka constructive agreement)

    Estoppel. They have claimed estoppel in the Memorandum, but not in the Complaint, and that could be a serious defect. Estoppel in the Memorandum is a new pleading, whereas arguments on the Motion to Dismiss, both ways, must not involve new fact or basic argument. (There are exceptions, perhaps). I was told that they should have requested leave of the court to amend the Complaint. They might still be able to do that.


    I would guess that the visitors would be aware of the ongoing test, and would want to see it. So what would they think if they saw it, and especially if IH told them what they knew by this time? This is my speculation. They would see that Rossi is not a serious competitor, that his megawatt reactor was a fake, and that investments could be made in less extravagant claims without being totally stupid. These people would not want to see their money wasted on paying Rossi $89 million for what amounts to a fancy technicality, the approval of a single person already associated with Rossi. If this goes to trial, a lot will come out, including how it came to pass that Penon was named ERV, in spite of the obvious concerns. And much more.


    Quote

    An implied-in-fact contract (A.K.A. "implied contract") is a contract agreed by non-verbal conduct, rather than by explicit words. As defined by the United States Supreme Court, it is "an agreement 'implied in fact'" as "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred,
    as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding."

    Yes. It can show that. At this point the legal issue is slightly different. Is the defect so plain that Count I should be dismissed? Has the plaintiff alleged what, if proven, would create estoppel? Implied contract is slightly different, it normally will exist in the absence of a written contract.


    The weird thing is that if, there was, in fact, the meeting of the minds and coherent action as Rossi claims, it would have been easy to get the signatures and the writings. Rossi could easily, we think, have signed and gotten Ampenergo's signature on that 2nd Amendment. Unless Ampenergo actually objected, which they could. We have no idea of Ampenergo's position by that date. For all we know, Rossi's futzing around may have cost them a lot of money. They were his friends, sure, but ... how far does that go? Maybe he, by this time, did not want to talk with them.


    Quote

    If Rossi (said) did in fact offer to return the $10M and cancel the contract, I'm surprised that he didn't include that as an alternative (pay up or cancel).

    We don't know details. By this time, though, IH had much more than the original $11.5 million invested.


    Quote

    ps The contract sucks ... I wouldn't have signed it for either party.

    Unless you had strong reasons, I assume. I think IH knew what they were doing. If Rossi's complaint is honest, he was incredibly naive. Here is the bottom line:


    To pay him $89 million, they would have to raise it. To do so once they were seriously concerned about the IP they had paid for -- no matter what the outcome was of the 1 MW test, if Rossi would not or could not show them how to make devices, it was economically useless. It was a possibility, not a reality. To raise the $89 million, being responsible to their investors, they would have to disclose what they knew. Rossi focused on the test, assuming he could force specific performance under the terms of the contract. He seems to have completely abandoned actually satisfying his "partner." So ... he made it impossible for them to raise the money.


    Rossi includes Cherokee in the suit because that is where he thinks the money is. However, his Agreement was not with Cherokee and there is no sign that Cherokee, the corporation, had anything to do with the agreement. That Darden and Vaughn are officers of Cherokee was a reason to think that they were competent and would be able to raise the money if it was warranted, but Cherokee was not going to invest that money, no matter what. It's outside what investors invest in Cherokee for. There is no way that the Cherokee board would have approved that. No, IH was a new corporation, formed to invest in "Industrial Heat," i.e. LENR, a very speculative business, and it needs investors willing to take on that risk, knowingly. Rossi seems to think that corporate officers can do whatever they please. That might be true for Leonardo, but not for a substantial investment fund, for sure.


    It is highly likely that Cherokee will be removed as a defendant, that is utterly beyond the pale. To include Cherokee would require a showing that Cherokee was a party to the agreement. It is not enough that Darden and Vaughn were officers, they did not sign any agreement on behalf of Cherokee. Nor did Cherokee invest any money in IH, nor did Cherokee have any right to profits from IH. Suppose Darden and Vaughn lied to Rossi. This would not create any liability for Cherokee unless they acted in their official capacity, which would require a writing. Cherokee did nothing to involve itself (providing a meeting place would not be enough. Employees meet with all kinds of people, it's common. It doesn't even show approval.) If the officers defrauded Rossi, that would be on their dime.


    Now, Rossi apparently believes -- and alleges -- that IH raised money on the basis of the GPT, perhaps $50 million from Woodford and perhaps $100 million from the Chinese. However, that is speculation on his part, he does not actually know what IH told them.


    However, suppose the Cherokee listing as a defendant is not dropped. Expect a prompt appeal that will succeed. And judges hate that. Basically, including Cherokee is inequitable, period.

    [quote='JedRothwell','https://www.lenr-forum.com/forum/index.php/Thread/3362-Have-IH-let-their-E-Cat-License-lapse-by-inaction/?postID=25797#post25797']Abd Ul-Rahman Lomax wrote:
    There were major deficiencies in the Lugano report. They can be traced to Rossi's involvement,


    I don't know about that. Levi and the others denied that he was involved. Actually, to the contrary, everyone says he was somewhat involved in the first set of Levi tests of the small reactor. The tests were conducted in his lab. Those tests were much better done, with calibrations, a themocouple confirming the IR camera, and so on. Much more credible. Lugano was a big let-down.


    Paragraph deleted - contains unwarranted and incorrect speculation. Alan


    With calibration, using an IR camera to assess power dissipation makes sense. Without it, you know perfectly well, it is cloud-cuckoo land. How did Rossi manage to have so many inconclusive demonstrations? It's obvious. He creates them, he chooses the people and he manipulates the environment, even if he is not there all the time. What did those "independent professors" do while he was gone? Did they consider the appearance of the reactor, did they notice that the thing seemed nowhere near 1400 C?


    Rossi has made complete fools out of quite a few scientists. He's remarkably good at it.

    Quote from Abd Ul-Rahman Lomax

    Levi denied that he was involved. But he was involved, it's in the report! Jed, you have denied this before. Set aside the fuel/ash analysis, i.e., where Rossi took the samples. Set aside the fact that Rossi powered the reactor up and also powered it down,


    I don't know about that. Rossi says he played no role in either test, but the first one was in his lab and I get a sense he may of offered them some advice on calorimetry. If so, for once it was good advice. I do not think he played much of an active role in either test, except perhaps with the powder.

    I'm working on expanding my "equipment table" to include all known experiments.


    http://lenr.qumbu.com/rossi_ecat_eai_table_v5.php


    First, note that the hotcat was already visible at the Oct 28 2011 1MW acceptance test (Darden and Vaughn were there). Rossi didn't announce it until 2012 (after the Penon report, which was only released later).


    Between that test, and the patent there were possibly as many as 10 separate runs (Though some might be duplicates from Penon and Levi).


    MOST were with a steel outer cylinder, coated with refractory paint, tested by IR camera, so the emissivity is in a narrow band of steel-to-paint.
    ONE (Lugano) used a ceramic outer (so I judged the COP as inconclusive, though we did get the Lithium data.)
    ONE (Patent Device 600) had 18 modules, and was tested in a water-steam-water loop ... possibly at the same time as the two 1MW devices (when the $10M was paid).


    Secondly, the direct electric field (emf) was detected in a hotcat ... so it is almost surely part of the licensed IP.


    Thirdly .. were ALL the 1MW water-steam-water tests invalid?

    Walker - I've got to hand it to you - you guys are consistent. I also want to thank you for yet another demonstration of the intelligence of Team Rossi. Now let's work our way over to the first half of the thought process that you forgot to post and it goes something like this:


    Inaction by the licensor to request for support by the licensee for licensed technology that doesn't work leads to inaction on commercialization. Attempts to repudiate the contract that included an upfront paid in full $10M payment when requests for technical support on a non-working technology were rebuked by the licensor who was too busy playing with his easybake oven don't lead to repudiation rulings in any US court of law. Rossi is going to lose on that and needs to be thinking about his the risk of treble damages along the way. Pass that on if you don't mind.

    Consider this aggressive response to Gluck question no. 5 by Jed:


    Quote from "Jed"

    I and others told you several times that I.H. was not satisfied early on, in the first months. For some reason you don’t like that answer. You don’t want to hear it. You don’t believe us. Fair enough; no one says you have to believe us. But that is the only answer you are going to get. So the question arises: WHY DO YOU KEEP ASKING WHEN YOU ALREADY HAVE THE ANSWER?!???


    Then compare that to this statement by Dodging Weaver from the nckhawk era:


    Quote from "MadDogWeaver (before he became really mad)"

    I’m open to re-education if you have a good argument. If you look at my earlier posts on this blog – I was cautiously optimistic around Rossi and his technology, especially after IH bought in. That has changed with Rossi’s light speed pace of evolution over the past 4 months – it is not humanly possible for 1 engineer with 2 or 3 helpers to pull all of this off. All I see now is a circus act moving from one ring to three.


    Then add the facts that there was quarterly, close to identical, reports during the test and that IH raised at least $50M from Woodford and probably more...


    As you can see, there is s glitch in the IH matrix. The time frames does not compute. Jed "the librarian" is rewriting history as we speak ...


    All signs points to the quarkX IP being the main IH issue (and maybe the simple fact that they were not able to raise enough money due to lack of IP control). http://www.sifferkoll.se/siffe…y-librarian-jed-rothwell/

    Dewey, I prefer not to do personal contacts at this point and I try my best to give reason here.


    As we all must understand this is very delicate process and nobody should cause extra misunderstanding by innocent mistake. Here I try to explain few points that I see very important everyone to understand and trust me on. Thus please bear me on long reply :)


    - As I have said few times. I am not in any of the 'camps'. I am not in any way professional in physics, but have been interested many things including Cold Fusion since F&P-89 Especially because of endless possibilities it would enable for this planet and human kind. Yes 'internet' has been big shift and I have been among first ones there, but I can also imagine how extremely big LENR would be if real. Naturally takes longer to full paradigm shift with space travel and all, but definitely means beginning of new era.
    - I found Rossis first demo video next day it came to Youtube and he kind of was person who brought me back the hope that I almost had lost after -89 disaster so I'm maybe 'Rossi sympathizer' if you will. Pretty same way as Jed was in the beginning and whose earlier efforts I respect as well.
    - I am absolutely not more than that, meaning I do not have any connections or any kind direct nor indirect access to Mr Rossi (nor IH). He actually censored few of my questions in JONP some years ago and I have been out from his forum because of censorship policy which is 'no go' for me (my questions were not too meddlesome in my standards, and could be innocently 'censored' by his crappy spam script of that time) . Recently I wrote few questions in JONP which all he published and I copied them here also as you saw.
    - Yesterday I sent additionally similar plea also to JONP, which he now seem to have published, but did not comment which I understand in this situation. I quote it below.


    All this can be summarized that I am really simply just independent observer hoping 'right things happens' whatever they may be, and opportunities are not wasted because of misunderstanding, personal anxiety or emotions. Earlier in this thread was commented that Mr Rossi should reach IH first. Again wrong very very wrong. That could be absolutely right for pure 'business negotiation' where you want to believe that it would give you some upper hand or something, but I see this more as 'peace negotiation', because of size of the bets and clearly both parties must feel very hurt at the moment.


    So I think publicly observable reactions here and JONP on my plea did not rule out slight chance you could be able to re-open discussions.


    This is purely what I would do in such situation (not that you wouldn't know it already):
    Innocent query passed from attorney to attorney really does not harm anyone nor show upper or lower hand. In possible discussion 'respecting the other' -attitude in both sides and starting possible discussion by drafting good intentions and correcting possible earlier misinterpretations. Followed by expressing good intentions and common goal oriented attitude without 'personal hurts'. Then time to listen, ask and then again listen (2/3 'listen' ratio' is important here). if you get that far then neutrally list open issues or disagreements and do normal processing them. Actual processing in next meeting after at least 1 night sleep over old emotions and new information to balance.


    As I here declare absolutely not being party or messenger of any kind but all this discussion has been public and unquestionably both IH and Mr Rossi has seen it, genie is out from a bottle and that is me to blame if any, but using this slight opportunity could become turning point if used wisely - for good of the planet and all of us.


    You are the parties who must take over now and carry on from here. I think time is now and hard to see any new or better opportunity to do it.


    This is mentioned my similar plea in JONP after I had published the one in lenr-forum.

    Okay Argon - get Rossi to send a letter to Tom Darden offering to buy back his license and the 1MW unit. $11.5M plus reasonable contract separation terms, mutual indemnifications and confidentiality agreements. He'll need to move quickly as the bombers are fueled and ready.

    Quote from "Dodge Weaver"

    Alan - a precision strike plan has been finalized. It is extensive and there will be some collateral damage but that co-travels with legal warfare, especially when you didn't start war.


    Well, I suppose you are ok with all kinds of damage, since you have already been forgiven and pardoned by [fantasy entity] for all your despicable behaviour. Did I get that right?

    I think the chances of Rossi doing any collaboration with I.H is extremely small regardless of what will happen down the road.


    He could potentially let them have the hot-cat technology for a few hundred million but I.H knows how he would spend the money, so I doubt that's high on their priorities.
    Their ability to raise money must as well have been damaged by all of this, if they could get 100 millions before, they might not be able to now.


    I hope they have other technology far advanced - and a nice big happy fuzzy end to all of this for everyone :)

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