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

Quote from sifferkoll

What are you trying spin here Adb ? Is there ANY F***ING DOUBT that IH and Leonardo agreed on Penon as ERV for the validation test and the GP test? I don't think so, so why are you trying to diffuse obvious facts with you manic rantings?

Ah, Sifferkoll. If you only knew how transparent you are. If anyone wants to read manic rantings, literally perhaps for fun, try reading Sifferkoll's blog. I don't think it's fun because I imagine a human being suffering like that.

The Contract establishes clearly that Rossi chooses the ERV, there is no provision for disagreement or negotiation or approval from IH. So, yes, IH agreed on Penon, but only, effectively, by signing the Agreement.

Rossi has presented the ERV as neutral, but the ERV was not selected by a process that would tend to create neutrality. The ERV was selected by Rossi, which then creates possible implications that Sifferkoll hates.

Now, it could be that, later, IH consented to Penon continuing as ERV for the GPT. The Agreement allows that the ERV for the GPT might be different "by agreement between the parties," but, as I read it, assumes that the same ERV would continue absent that agreement (which is bizarre, by the way). So if this case is tried, the negotiations may become relevant.

In general, however, until well into 2016, it appears that IH strategy was to allow Rossi to do whatever he pleased, hoping that he would actually transfer the IP. Rossi was known as mercurial and reactive to others who might have wanted to verify his claims.

What I found interesting, though, is that what had seemed to many people as weird, that IH would consent to Penon, was actually written, effectively, into the Agreement. This part of the Agreement was all designed to protect Rossi, not IH, to allow him to control and set up conditions to receive $89 million, without reference to the IP transfer. All he needs is a positive report from a man he selected in the first place.

He believed.

Did he realize that if he didn't succeed in training IH to create devices that worked when independently tested, IH would refuse to pay regardless of those provisions? That without that success, they could be unable to raise the funding for it? That he was not fulfilling the core of the agreement, as to the other side?

Quote from "FUDing Abd"

IH agreed on Penon, but only, effectively, by signing the Agreement.

"only" f**king what Abd? Did they agree or not? It is a yes/no question you know, without any place for FUD, "only" for a signature...

Quote from "FUDing Abd"

Rossi has presented the ERV as neutral, but the ERV was not selected by a process that would tend to create neutrality. The ERV was selected by Rossi, which then creates possible implications that Sifferkoll hates.

BS Adb. When IH agreed he was neutral. That is why it is a ERV. Everything else is FUD coming out of your [insert suitable part of body] ...

Quote from "FUDing Abd"

Ah, Sifferkoll. If you only knew how transparent you are.

Thank you Adb!!! It is my aim to be very easy to understand and readable ... Call it transparant if you like Obviously you have a different agenda though ...

Quote from "Maaary"

agreements are void if they were obtained by fraud. Uhho... there is that word again.

Oh, so now there is NO agreement... Maybe you should tell Dewey that. It would save him lots of time and reduce anger management incl lithium ...

Quote from Jack Cole

To me, Abd is not overly wordy. Yes, he writes a lot of words, but I don't find myself thinking "get to the point already." He puts a lot of thought into what he writes and it is a process to explain those thoughts. Even though he's not a lawyer, I think his line-by-line analysis is still interesting. To each his or her own I guess.

wew lad

For anyone who still doubted, this shows your true colors

@Shane:

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And whether or not "any reasonable court will ask for independent testing"...I do not know? Neither do you (bet Abd does ). Is there some precedent for this?

Some years ago, Sniffex, a clearcut fraud case, sued James Randi for calling them what they were in public. The judge asked for an independent test, done for the court, of the device Sniffex was selling. At this point, Sniffex dropped the suit. I am sure there are many cases where this happened. The judge can do this sort of request and most are smart enough to ask for it. I don't think it is even required for both parties to agree on the test person or agency as long as the court has confidence in them.

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Oh, so now there is NO agreement...

Clearly there is an agreement. But if it was obtained by claiming something false, like that the ecat works and that Rossi would show IH exactly how to make one that works, then it isn't valid. No part of it is valid if it was obtained by using deception (fraud). If Rossi rigged the previous tests, or lied about his military customer(s), as many suspect, that would qualify as deception! An example of Rossi's method is the thermoelectric deception. Rossi claimed that a high efficiency prototype of the device was tested by the University of New Hampshire. He never named who did the tests. Nobody at U of NH would cop to doing them. The prototype was never delivered to the contracting agency. Instead, they received 27 pieces of non working junk. Many believe this was simply deception. Like all the ecat and hot cat tests.

http://newenergytimes.com/v2/s…ThermoelectricDevices.pdf
http://freeenergyscams.com/

Quote from "Maaary"

Clearly there is an agreement

Or was, until IH did not pay according to the mutually agreed ERV report. But anyway; we seem to agree enough.

Quote from quizzical

Abd Ul-Rahman Lomax wrote:

Abd,
This is a point of legal contention, especially since the agreement is confusing on this issue.

Actually, the Agreement is generally clear. It simply does not cover the contingency of non-payment, and many agreements don't. If an Agreement doesn't consider a contingency that arises then it may fall under equity and common law. It only is unclear to those who do not deal with issues like this and who try to read their expectations into the agreement. (And an attorney reading this Agreement, back when it was signed, would likely have pointed out what was missing. Did Rossi consult counsel?)

Quote

Here's a quote from the license agreement:
"3. Price and Payments

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

This indicates that, assuming the one-year test was successful, if IH does not pay Leonardo $100,500,000 then they lose the license.

It does not "indicate that." That is a fantasy. The Agreement does consider various contingencies, but the license was granted upon the following events, spelled out in the Agreement. See especially the Schedule, pdf page 24. This is what was supposed to happen:

1. Payment of $1.5 million for the 1 MW plant. There was no Agreement until that was paid. Then there was:
2. IH placed $10 million into escrow. Rossi placed full E-cat IP, missing only the secret "catalyzer formula", in the hands of an Engineer and one or more patent attorneys, all under NDA, these being selected by Rossi.
3. There was a Validation test, certified by an Engineer Responsible for Validation, that being, presumably, the engineer chosen by Rossi for step 2.
4.The Engineer certified the test.
5. The $10 million in escrow was delivered to Rossi.
5. The license commenced, in full force.
6. The full E-Cat IP disclosure was turned over to IH.
7. Rossi delivered the catalyzer formula, all that was necessary to make the catalyzer.

Now, it appears that all this actually happened, though it is debated whether or not Rossi did, in fact, turn over useful IP.

There is a later event that is to trigger a payment of $89 million under one contingency, and $44.5 million, under another, i.e., that competition appears. In the event that competition appears, IH could elect to make that half-payment, but then there is a royalty of 5% on all sales until the total amount paid to Rossi is $1 billion.

What happens if IH has difficulties and cannot make one of those royalty payments? Would the license be cancelled? Absolutely, this would not be automatic, unless it were in the Agreement. If I buy a house from you and borrow money from you at the same time, let's consider two contingencies: one is that the house secures the property, it may be repossessed by the creditor if terms are not met. However, is this automatic? Not with real estate. There is a process for reposession, and the equities are not as simple as "didn't pay everything, house goes back immediately." Suppose IH went bankrupt and their principal assert was this license, and they couldn't pay the $89 million. Are the creditors of IH screwed? (I.e, Rossi cancels the license for nonpayment, so IH has nothing of value.) No. The license is an assert, and in a case like this, it might be sold at auction, presumably for value and, yes, Rossi could bid on it.

Then, with the house purchase, consider the other contingency: the loan is unsecured. However, it's my only asset, say. Can the creditor take the house? Again, not directly. The creditor could win a judgment for the debt and might be able to attach it to various properties of mine. In this case, Rossi could gain a judgment for $89 million, assuming all the precedent conditions were fulfilled, and that might go with the license. The license would not be cancelled, but there might be a debt associated with it. (I don't know details here, there can be procedures for intellectual property I don't know.)

If you look at the whole situation, not just from the Rossi Point of View, all this will make sense. Here. read http://www.infinite-energy.com…ustrial-heat-lawsuit.html ... David French on the subject. It's long and detailed. Some excerpts:

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Macy: What is confusing is that Rossi is saying, “They are in trouble for using my IP. They have to stop. And they also have to pay.” I find that very contradictory. Does my confusion make sense?

French: Yes, your confusion is understandable. He still wants his $89 million dollars but he’s also asking for an Order that Industrial Heat not make use of the information that he has provided to them. This is inconsistent. If they pay, then they are entitled to have the full benefit of all his Know-how. In fact Industrial Heat may have acquired the right to use all this know-how when they paid the $10,000,000.

Macy: How could that be?

French: Paragraph 3.2 of the License Agreement provides as follows:

(b) … On the date the Escrow Agent pays $10,000,000 to Leonardo, the License will commence and Leonardo and Rossi will immediately transfer … to the Company all E-Cat IP…

The Complaint acknowledges that the $10,000,000 has been paid. Therefore, it is unclear how the Complaint can object that the defendants are improperly using the “intellectual property” that they have paid for previously. Their failure to pay the further $89 million simply looks like a collection issue.

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Quizzical continued:

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Since the contract is somewhat confusingly written (and so yes, you Abd can pick the portion you want to make the case that you want) I am sure that the lawyers will
have a field-day discussing this. That is the whole point of the lawsuit (assuming that Rossi believes that the one-year test was successful).

It is common on Planet Rossi to believe that anyone who seems to be criticizing Rossi is doing so because they "want to make a case." People tend to see in others what is true for themselves. It''s not an absolue rule, but ... if we want to learn about ourselves, consider how we treat others.

One more quote from French, because it's fun:

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These allegations are so ill-conceived that it’s almost an embarrassment to criticize them.

If these are intended to be paragraphs alleging patent infringement, none of them meet the standards recently adopted by the Courts requiring allegations of patent infringement to be particularized. As stated earlier, it is not an infringement of a U.S. patent to file another U.S. patent application (paras 131, 133). Much less is it an infringement of a U.S. patent to file patents in other countries (para 132). The fact that the defendants have been raising funds from third parties is totally irrelevant (134) as a patent issue.

Quote from Shane D.

And whether or not "any reasonable court will ask for independent testing"...I do not know? Neither do you (bet Abd does ). Is there some precedent for this?

Thanks. I don't "know" what the court will do, but consider it very unlikely that the Court will seek that.

It is very possible that some settlement would arrange such, and a Court might approve such a process, but would not originate it. This is the American system, which is adversarial, not inquisitorial. I found a quick piece on the difference: http://www.justice.govt.nz/pub…l-and-adversarial-systems

The judge does not arrange the case nor decide what is to be considered. The parties do that, subject to rulings by the judge according to what is lawfully permissible. The judge rules on points of law, and does not -- if there is a jury trial, as Rossi has requested -- determine fact, as such. So ... the judge could not care less about whether the device works or not. That would be a matter of fact, and if it is needed for a resolution of the case, the jury will be asked to determine the matter based on the evidence provided in the trial, which would include expert testimony, and, as well, that of witnesses with personal experience.

Many people seem to think that the primary issue here is whether the 1 MW plant "worked." That is not actually the main issue, but it is a Rossi legal tactic to focus on that. I realized in writing yesterday that nowhere in the Complaint -- that I've noticed -- does Rossi claim that he delivered workable IP. He focuses entirely on the 1 MW test and the $89 million he believes he should have gotten, and then how IH never planned to give him anything more, and they deceived him about Cherokee and generally were nasty people who should be severely punished. Or something like that. Nothing about delivering the IP, which was the whole purpose of the contract, not setting up a 1 MW test with a Prize for the Winner. Except that seems to have been Rossi's idea.

Quote from Timar

axil: I guess such negative feedback on the plant performance would have been kind of hard to reconcile with IH simultanously raising >100 million dollars in investment money using the said 1MW plant...

Other than as unsubstantiated statements by Rossi, there is no evidence I have seen that IH raised this money in the manner described. What appears to be true is that IH showed the 1 MW plant under test to two major investors, but we do not know what was said to them. To point out a very reasonable possibility, IH might have said this:

"In this field, of course, most news has been about Andrea Rossi's work, and if Rossi's claims are true, he is generating kilowatts from a reactor where other may be generating much less. However, in spite of our agreement with Rossi that he fully transfer all necessary knowledge to make his devices, we have been unable to show excess heat from any device made according to his specifications. However, if you would like to see the alleged 1 megawatt plant under test, that could be arranged. We are working on other approaches, and if you invest with us, this is likely where it will go, unless Rossi changes and shows us how to make his devices work." And they may have said many other things.

Bottom line here, and this is very common on Planet Rossi, what Rossi has said is assumed true, and is then used as the basis for more argument, without ever noticing or acknowledging that it all hinges on Rossi. There is no, "according to Rossi."

It is not really relevant to the trial (unlike what Rossi has claimed), but if it were necessary, those investors could testify. And if they were led to invest based on a plant that IH now may claim didn't work (they have not exactly claimed that yet, but it is very possible and consistent with what they have said in the few comments they have made), then, I assume, they would already be very unhappy! And they could do something about that. However, if they invested on, say, the opposite, that IH told them the plant was bogus, as part of showing them that Rossi was not a real threat to investment in the field, then Rossi filing the lawsuit would simply confirm all that.

With that lawsuit sitting there, and even if it were settled (without clear, independent validation), I find it difficult to imagine that any serious investor would so easily again come up with significant funding for Rossi, absent absolutely independent strong evidence and a contract that, if Rossi lost his mind, would still stand.

Alan wrote:

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Mary, Just to be clear, I don't mind you calling Rossi a fraud, since you do it so often it must make you moist. The truth of your allegations may or may not be revealed in a court of law. And Rossi is a principal actor in this drama and resident in the same country you are. In the event of him winning his case he can, if he wishes, reach out and sue you for damages. However, I do object to you imputing complicity in an unproven allegation of fraud on the part of the various Professors and Mats Lewan and others who have crossed Rossi's path in the past. They are not currently involved in legal proceedings and live in other jurisdictions, making legal action on their part difficult and costly. They might consider it more fruitful to sue the owners of this forum (who are closer to home) for allowing such comments to remain published. Therefore such allegations will always be removed -when I see them- whatever the result of the case in Miami.

Maybe you're thinking of someone else? I have *never* called Lewan a fraud. I bent over backwards to note several times and several places that, in my considered opinion Lewan and the Swedish Professors are honest-- just not very good at ferreting out fraud and things that make no sense based on the claims. I still think that. And they are dreadful at experimental design and execution to the point they should embarrassed. They also don't understand scientific discourse-- they publish a paper and then refuse to answer polite questions about it by qualified individuals. That's all pretty awful and certainly fails to inspire confidence but it does not indicate fraud.

That leaves Levi. I have never called Levi a fraud either. As I have said, I don't know if he's a fraud in cahoots with Rossi or so inexplicably dumb that he has never asked Rossi any appropriate questions and never repeated the experiment he did in 2011 that yielded the spectacular results he claimed (135kW peak power from a device the size of a tennis ball). I just don't know how someone can be that stupid and incompetent so I tend to fall back on crooked but I never said it as a fact.

Finally, about Rossi. I never said I can *prove* fraud. What I said was that everything about Rossi-- his background, his activities, his experimental design (if you can call it that), the ever decreasing performance of his ecats and hot cats (until just recently) and his response to questions and critiques, all points to not only fraud but classical free energy type fraud. I have also said it *appears* that he lied to the DOD and defrauded them of millions in the case of the thermoelectric devices. I am essentially certain of it but I can not prove it as fact.

I would love to be able to prove any of those allegations but it's not possible given the incomplete and sometimes incompetently obtained data I can read and see.

Believers are often fond of warping skeptical opinions and attacking straw men so if you like, have at it. But if you can find somewhere I called Lewan or the Swedish professors conspirators in a Rossi fraud, please show me the link and cite. Otherwise, don't claim that I did it. I didn't. I wouldn't unless I was drunker than I recall being. And when I called Rossi a fraud, I carefully elaborated the reasons why I thought he was for every instance and act, at least once.