Rossi Responds to IH’s Motion to Dismiss in Court Case

Quote from Keieueue

sifferkoll wrote: [It was not Sifferkol, I wrote::]

You are fascinated by weird things.

[quote]You might be on to something, can you reproduce this experiment???

The pattern is that I am working on a post, there is a lot of text added, and then I go to other sites in other windows, and come back and the post is gone, there is a blank edit window. I have not seen a pattern. At odd times, the site complains that I've been logged out, but my profile shows, it knows it's me with no login. It is possible that some auto-logout occurs while I'm off looking at another page. I've been pretty active here recently, and this has happened to me a few times. I also get site-access errors maybe once a day, which can persist for a while. I'm not willing to do experimentation to confirm conditions. What I'm doing is to save the text to a file if I go away, or I save it here as a draft.

Quote from Rends

Quote from Abd Ul-Rahman Lomax: “Once again, I lost a draft.”

Every forum software have to let sessions expire, if the user is inactive or is leaving the page, why don't you write in a text editor, or Word, where you can save your text and then make…

I am starting to do that. However, I write on many fora where the data is not lost. It is still in the browser, at least. Something about the site causes the browser to erase the data. I do not come back and find myself logged out. The system still displays my name. It knows it is me. I never have to actually log in again, because I have a Facebook login. A message will pop up. I have never been looking at a window and the edits disappear, it always involves being away from the screen as primary focus. The edit page is still loaded, just with the data missing.

On Quora.com, all edits are saved automatically as drafts, available even if one is away for a long time. Wikipedia, they are almost always available in browser history. What usually happens on Wikipedia with autologout is that the post becomes anonymous, by IP.

The issue is what happens when a session expires, I suspect. I also get data communication errors, a big annoying message from CloudFare or whatever the name is. Again, I've not seen this dump my data. I've not seen the logout dump my data either and I merely suspect that this happening when I don't have the browser window in front, watching it, and auto logout and then autologin occur.

Quote from frankwtu

Urban dictionary - Kibbitzing -
"To look on and offer unwanted, usually meddlesome advice to others".

Trollbook rule 28: always select the most annoying definition of words. http://www.urbandictionary.com/define.php?term=Kibitz The urban dictionary is crowd-sourced. It does give alternate definitions, exploring the range of meanings.

The meaning selected is not what I was saying.

http://www.merriam-webster.com/dictionary/kibitz

Yes. Kibbitzing can be unwelcome, but when everyone -- or almost everyone -- is not a "player" -- it means chatting, like sports talk in a bar. Imagine someone says, "The Sox are going to win, because blah blah." And someone else says, "Shut up and watch the game." Would that be considered, ah, friendly?

I participate here because the research I do to write makes me more and more familiar with the material. I write in general about cold fusion because it has huge implications for the energy future of humanity, and circumstances placed me to become familiar with the scientific evidence for it, and the history, including the fiasco of 1989-1990, where serious mistakes were made on all sides, and then to develop plans for creating breakthroughs in spite of conditions. I am working with others on that, and, no, not IH, at least not so far.

Quote from frankwtu

Abd Ul-Rahman Lomax

I'm not able to find that so I think you must be wrong.

I cited two dictionaries, the first being the one that Frank cherry-picked from, the crowd-sourced urban dictionary, and the second being Merriam-Webster. Then you cite an etymology which could be radically different from how the word is currently used and it was my usage, so I get to say. It is consistent with what's in the dictionaries as the most common usage. Essentially, sometimes kibbitzing is unwelcome, that's all. Sometimes not.

Frank, you are demonstrating your position, which appears to be Abd is Wrong. Then you will looks for evidence for that. And in this case if one does not find evidence Abd is right -- even though it was linked -- then Q.E.D., Abd is Wrong.

When I find myself thinking like that, I have literally gone and soaked my head.

Edit: I just realized that Frank might have searched for Trollbook Rule 28. That's perfect. Here. Let me help him out. https://millstones.quora.com/Trollbook

Quote from Rends

Every forum software have to let sessions expire, if the user is inactive or is leaving the page, why don't you write in a text editor, or Word, where you can save your text and then make copy and paste?

I just lost some work and the cause was apparent. This may or many not be the dame as the other cases. I was writing and some glitch, could be a wayward mouse click, some keyboard glitch or slip, and went to a new page. So I hit the back button and I was back to the edit window with the new text gone. Many sites do not function like that. If one goes back to an edit window, what was in it is preserved. This is likely a site software problem. I'm using Chrome, there is some possibility it is a Chrome problem. As I've mentioned, on Quora it makes no difference, drafts are maintained even if you log out and go away for a long time. They are automatically saved with high frequency.

https://animpossibleinvention.…sdce-16-21199__0018-0.pdf
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' ON TO DISMISS
II. Count II: Breach of Contract

From the complaint, Count II is BREACH OF CONTRACT (EXCEEDING SCOPE OF LICENSE) (rH & rPH)
https://animpossibleinvention.…sdce-16-21199__0001-0.pdf

From the Motion to Dismiss:
https://animpossibleinvention.…/ih-motion-to-dismiss.pdf

Quote

Count II Fails to State a Breach of Contract Claim.
7 A. Defendants’ statement about their “ownership” of the E-Cat IP is not a breach of the License Agreement.
7 B. “Attempting to obtain a European patent” is not a breach of the License Agreement.
7 C. Listing T. Barker Dameron as a co-inventor in a U.S. Patent Application is not a breach of the License Agreement.

Rossi has, indeed, failed to allege any breach of contract. Rossi may argue that this or that statement was incorrect, but that does not create a breach of contract. At best, the facts alleged support an idea that a patent applied for was defective. No damages are alleged or reasonable. No sales have occurred infringing on Rossi's rights, etc.

In the Memorandum, Rossi cites Shaw v. E. I. DuPont De Nemours & Co., 126 Vt.206,270, 226 A.2d903,906 (1966). Here is that case: http://law.justia.com/cases/ve…reme-court/1967/83-0.html

The cited case is one where there was actually infringing manufacture and sale, not merely some claim or statement.

Rossi ends the count section with

Quote

To accept Defendants' position, no licensor could limit its license to a specific geographic territory and every license would be worldwide, disrupting
commerce and established rights.

This is completely preposterous. The limitation of the license is not denied by IH. No infringements are claimed, and a patent application is not an infringement. It might create an invalid patent, that's all.

I predict that Count II is toast.

https://animpossibleinvention.…sdce-16-21199__0018-0.pdf
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' ON TO DISMISS
III. Count III: Unjust Enrichment

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

count III appears to be a repeat of Count I

Quote

91. IH and IPH have failed to pay ROSSI or LEONARDO the full value of the license
granted, and it would be inequitable for IH and/or IPH to retain the benefits of the aforementioned
license without paying fair value for it.
92. As a result of IH and IPH's failure to pay ROSSI or LEONARDO, IH and/or IPH
have been unjustly enriched and conversely, ROSSI and LEONARDO have been damaged.

From the Motion to Dismiss:
https://animpossibleinvention.…/ih-motion-to-dismiss.pdf

Quote

Plaintiffs cannot pursue a quasi-contract claim for unjust enrichment if an express contract exists concerning the same subject matter as their claim for unjust enrichment.

This is quite clear.

Rossi argues that the unjustment enrichment claim is an alternative claim to Claim 1, i.e., if it is found that the contract doesn't exist, then unjust enrichment could be claimed, and that is true. However, IH has not disputed the existence of the contract. And in these circumstances, the only "benefit" conferred on IH would be the IP rights, and if the contract is void, those would not exist. It is not alleged that the defendant has sold or profited from sales in or outside the territory.

I predict, this Count is toast.

animpossibleinvention.files.wo…sdce-16-21199__0018-0.pdf
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' ON TO DISMISS
IV. Count IV: Misappropriation of Trade Secrets

From the complaint
animpossibleinvention.files.wo…sdce-16-21199__0001-0.pdf

Quote

95. The E-Cat IP is comprised of proprietary business and scientific information which,
gives economic advantage to ROSSI and LEONARDO. Such information is maintained as a
closely held trade secret in order to prevent the unauthorized dissemination of such information.

However, Count IV in the Complaint is a disorganized mess. Most of it is irrelevant to the title of the count. However, core would be

Quote

98. DARDEN, VAUGHN, IH and IPH have, inter alia, intentionally attempted to
misappropriate ROSSI and LEONARDO's trade secrets for their own use by ... (c) conveying ROSSI &, LEONARDO's intellectual property to third party
competitors, ...

From the Motion to Dismiss:
animpossibleinvention.files.wo…/ih-motion-to-dismiss.pdf

Ih gives a series of arguments that are very clear. If Rossi wanted to prevent IH from disclosing "trade secrets," he totally failed to protect them.

From the Memorandum:

Quote

In their first and second arguments, Defendants attempt to mislead the Court by arguing that the License Agreement expressly permits Defendants IH and IPH to "pursue patents relating to the E-Cat IP", citing to paragraphT.l and 13.4 of the License Agreement. (DE:I7 at ll). Notably, paragraph 7.1 of the License Agreement provides that Defendant IH "may participate in patent prosecution and maintenance" undertaken by Leonardo Corporation". (DE:1, Ex. "8", '117.1).Nothing therein gives IH or any other Defendant the right to apply for patents for the Plaintifß' underlying trade secrets in their own name(s). Paragraph13.4 of the License Agreement provides that Defendant IH shall maintain its rights to "any and all inventions, discoveries, concepts, ideas, information and anything else the Company, its sublicensees, or any of their affiliates, makes or develops which relate to the E-Cat IP." (DE:I, Ex. "B", T13.4). Neither provision relied upon by Defendants grants any Defendant the right to claim the Plaintiffs' intellectual property and trade secrets as their own or obtain a patent for such trade secrets in their
name(s). Even assuming, arguendo, that the License Agreement permitted such use of the trade secrets (it does not), such acts would still constitute a misappropriation because the License
Agreement was procured by improper means as discussed above.

The "improper means" alleged was an allegation that Darden and Vaughn claimed that IH and Cherokee were the same company.

I would think that telling a judge that the other side was attempting to mislead the Court, when they make a patently sound claim, would be a serious mistake, creating an impression of exactly that, only reversed. I.e., the allegation would fall back on the accuser. There is no claim by IH that the provision granted IH the right to claim the IP as their own (i.e., legally, rather than informally as a matter of speech), or to obtain a patent for such trade secrets, nor is there any specific claim that IH did so. Rossi is creating a straw man argument. Rather, clearly, IH owns improvements to the IP that they develop.

I'm not seeing that Rossi alleged sufficient fact in the Complaint to cover this. IH had the right to sublicense, that is extremely clear. How could they sublicense without disclosing the IP?

It seems a total stretch to me that Rossi could establish a basis for this. However, with all the counts, it is possible that the judge could be persuaded that Rossi should have a chance to prove the allegations. It's a question how far the judge will go to allow this. I will, nevertheless, predict that this Count will be dismissed. Everything hinges on the $89 million payment, had it been paid, it's obvious the rest of the claims would not have been raised. Rossi might have filed a protest over the European patent, perhaps. That is trivial.

Basically, Rossi sold the IP for $10 million, a full license, limited only by the territory, that went into immediate effect, with a further payment of $89 million being due under a contingency. IH was clearly allowed to function as a licensee in the territory, which then allowed disclosure at IH"s discretion. Rossi claims that the contingency came to pass and the $89 million fell due and was not paid. However, that is simply a debt, and there is no provision in the contract for termination for failure to make that payment, plus this could not reach back and turn proper disclosure into improper.

Rather, the $89 million would become, under the contingency, a debt of IH to Rossi, and, of course, if they were making money from the IP, that debt would be collectible.

If a sublicensee starts making a product covered by the Rossi patents, those could only be marketed outside the territory by agreement with Rossi.

animpossibleinvention.files.wo…sdce-16-21199__0018-0.pdf
PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' ON TO DISMISS
V. Count V: Conspiracy Not Barred by Intra-Corporate Conspiracy Doctrine

From the complaint
animpossibleinvention.files.wo…sdce-16-21199__0001-0.pdf

Quote

COUNT V: CIVIL CONSPIRACY TO MISAPPROPRIATE TRADE SECRETS (IH,IPH, CHEROKEE, DARDEN & VAUGHN)

the same allegations are repeated, including the patent application.

From the Motion to Dismiss:
animpossibleinvention.files.wo…/ih-motion-to-dismiss.pdf

From the Memorandum:

Quote

Plaintiffs allege that Defendants JOHN VAUGHN, THOMAS DARDEN and CHEROKEE INVESTMENT PARTNERS, LLC have each created numerous foreign and
domestic shell companies as part of their scheme to misappropriate Plaintiffs' trade secrets which evidences each such Defendant's personal stake in the conspiracy

The Agreement was with IH alone, not with Cherokee. IH was created to fund LENR research, and possibly initially for investment and investigation of Rossi IP. Buying a licence for the IP is now called a "scheme to misappropriate ... trade secrets." All the relevant actions were taken by Industrial Heat

Rossi argues that because there are all these different companies, it's impossible to tell which one conspired. However, Rossi has vastly complicated what was simple. His Agreement was with IH, not Cherokee, and he would be considered to have noticed who signed the Agreement and what it said, back in 2012. The money did not come from Cherokee, and Cherokee has no interest in IH. Rossi, if he is being honest, was vastly confused, and seems to remain so in recent comments. IPH is a holding company, that could be a wholly-owned subsidiary, I'm not sure.

Rossi is teetering on the edge of unbelievability, and may have fallen off the edge, here. I'll predict this count is dismissed, but ... if not, this, and other counts, are going to be extremely difficult to prove to the satisfaction of the court. The fundamental issue in this case is alleged breach of contract from failure to pay $89 million as allegedly agreed. Everything else is an attempt to take the same set of facts and create other offenses out of them. If Rossi succeeds in keeping the counts alive, he complicates the case, which then harms him, because it will delay resolution. I have stated that Count I is the most likely to stand, because the objection to it is based on signature technicalities, which can be overcome by alleging estoppel, that the conduct of the parties showed agreement. That would make it a matter of fact, not merely of law and the evidence in the Complaint.

Against this, the plaintiff did not claim estoppel in the Complaint and has not asked for leave to amend.

The rest of the LENR world wants this to go to trial on Count I, because all the really juicy stuff may come out. The rest of this is fluff. For the sake of the parties, though, I hope they settle -- or that the entire suit is dismissed. For the sake of the future of LENR, it's best that the Rossi claims be confronted and exposed or validated. Rossi has forced this by filing, but IH might not have been far behind him.