Plaintiffs/Counter-Defendants’ Motion to Dismiss Defendants Amended Counterclaims against Plaintiffs and Memorandum of Law

  • Thanks Eric! Went through briefly. Rossi's defense is very weak, almost gobbly gook legalese, regarding the GPT, the "fake" customer...did not even address it head on, and some other areas I forget due a few, or so, adult beverages :) , but he was strong in defense of the patents.


    Overall, I was not impressed.


    Note: I used the word gobblygook 1 minute before Jed! :)

  • Not the strongest argument.


    "Even if Plaintiffs had not paid all appropriate taxes, they have, there is absolutely no legal basis for Defendants baseless and conclusory allegation that there is a “likelihood” that the E-Cat IP will be the subject of a tax lien."

  • I reviewed Rossi's request to dismiss IH's counterclaims again. Thanks again Eric for providing the link. My first impression from last night was pretty much correct. It sucked then, and still does now after further study. But I have gotten a little biased against Rossi, and maybe one of his remaining supporters might want to weigh in?


    Basically, in defense of his continuing product development (QuarkX I assume), and patent activity without IH's approval, Rossi makes the point that IH is only one of many licensees, and he has an obligation to all.Not just IH. Along those lines, he also addresses the tax issue. IH thinks he has not paid his taxes, which weakens their patent investment, due possible liens by the IRS. Rossi though seems to indicate he has paid by saying "they have" in this sentence: "Even if plaintiffs had not paid all appropriate taxes, they have," and goes on to say patents are not subject to liens anyways. In addition, it would be premature to claim harm, as no harm (lien) has been placed yet.Sounds pretty solid.


    In response to IH's claim that they could not duplicate the Ecat's promised performance, Rossi says that may be due to IH's: sabotaging so as not having to pay the $89 million, incompetence, substandard equipment, improper input/output measurement. As reason for his blaming IH for their lack of success, Rossi shows how IH admitted other third parties (Lugano) attained measurable heat. About what we here figured he would say.


    With the "fraudulent inducement/Deceptive and Unfair Trade Practices (fake customer)" Rossi presents a very, very weak argument. I thought it was gobblygook last night and still do now. Even a moron could see through their argument...which are technicalities, and not good ones at that. This was his opportunity to lay this to rest by saying there is a real customer, but instead made it clear he lied by inventing a fake customer. It is almost definite now that IH is right.


    My overall impression, is that Rossi's lawyer is trying heroically to get a weak case to a jury, where it might have a decent chance. If it goes that far, I can not see how a jury...as fickle as they can be, could swallow this. It is that bad. But you never know.

  • Leonardo's Motion to Dismiss IH's amended Answer, which was just added to the docket:


    drive.google.com/drive/folders/0BzKtdce19-wyb1RxOTF6c2NtZkk


    The file is "41 - Motion to dismiss - Leonardo.pdf".


    Thanks. Again I missed this because I was looking for 40 which I already knew could not be displayed, but I forgot to check 41. The URL given above does not show document 41 or the Motion, so I went ahead and downloaded it. $2.50. for a good cause, not having to wait for someone else! I'm tight on money, but not that tight.

  • The factual issues, such as the propriety of the customer, will not be dealt with in a motion to dismiss, as noted in the first footnote:


    Footnote:
    1 Defendants’ factual inaccuracies are not properly considered in a Motion to Dismiss therefore will not be discussed
    herein.


    As for the GPT:


    Main argument is that IH complained that the test of the plant did not "perform up to the standards set forth in the License Agreement" but at the same time pretends like the test is not the GPT as set forth in the License Agreement. So it is as if IH implicitly admits that the test was the GPT, but explicitly denies it (my interpretation of Leonardo/Rossi's argument).


    Count I:
    Standing: Rossi's argument is that IH transferred its rights to IPH, and therefore, lacks standing to assert a breach claim.
    Unable to replicate claim: ... "notwithstanding Defendants’ allegation they have been unable to 'generate measureable excess energy', they freely acknowledge that numerous third parties have been successful in generating an energy multiplier (COP) ranging from COP 2.6 to COP 10.85. (DE:30, ¶57, 58, 68)." So, basically, Rossi is saying that the claim that they were unable to replicate the tech is "self-serving conjecture" in light of the other acknowledgements. And I suppose that if it gets you out of having to pay $89 for something, then yes, might be self-serving.


    Count II:
    Standing: no standing for reason mentioned in Count I.
    Alleged "non-compete": Rossi's argument that the express language of the agreement is not a "non-compete" (and true enough, it isn't). Section 13.3 of the license agreement prohibits Leonardo from owning another competitor-company, not licensing technology to it. Rossi points to Exhibit D "List of Exclusive Commercial Licensees" as evidence that IH understood this well (the list covers licenses to other entities covering Norther Europe, Australasia, Africa, India, France, Benelux, Slovenia, Italia, Austria, Germany, Switzerland, Liechtenstein, Malta, Greece, the Balkans and Cyprus). Rossi refutes IH's position that they are entitled to prevent Rossi/Leonardo from continuing their work globally. IH's license was limited geographically.
    Failure to pay taxes: Rossi states that the taxes have been paid, and then pretty much smacks down the allegation that tax liens might attach (they wouldn't regardless).


    Count III:
    Fraud claim: main argument is that IH failed to meet the heightened pleading requirements for a fraud claim. Although the facts are disputed, these are not to be addressed in a motion to dismiss (see footnote above).
    Standing: no standing for previously stated reasons.


    Count IV:
    Unconscionable/unfair/deceptive acts and practices: Rossi is arguing that IH recast a breach of contract claim as a tort, which is not permitted under Florida law. Maybe not the strongest argument, but neither was the allegation.
    Backup argument: IH failed to meet heightened pleading requirement for a tort claim.


    There is my concise analysis. You will get the book version from Abd. ;)


    All in all, the arguments seem sound, but I'm sure there will be plenty of twists and turns. The fun really begins once we get into factual inquiries and analysis.

  • Some of us don't believe that IH wasn't capable of replicating.


    There was nothing to replicate. Rossi's own 1 year test was a failure. It produced no excess heat.


    Anyway "some of us" is not a useful argument. Some of us believe that NASA never landed on the moon. So what? Some of us have no evidence whatever for the notion that I.H. replicated. If I.H. had replicated they would have paid the $89 million and there would be no lawsuit.

  • Some of us believe man did land on the moon, and that IH likely replicated, or at least improved it slightly so that it would work (and then subsequently filed a patent application naming a co-inventor and took further actions to maintain acceptable claims in the application recently).

  • Mr.SS,


    I had hoped Rossi would defend himself in this MTD by stating IH had, in fact, replicated his tech. He did not though, and instead referred to the supposed third party results. Why, if he knew of, participated in, or seen IH replicate would he not mention it by now?


    Considering that he announced 8 July 2013 on his JONP that IH had built an Ecat from scratch, bought then mixed the fuel, started it, ran it and it performed as advertised, I kind of expected to see that, or something along those lines, reflected somewhere in his filings by now. But nope, he has not. Very odd if you ask me. That tells me IH was not successful, and Rossi is fully aware they were not...but could be wrong. Maybe as IHFB says, this is not the time for facts...although I find it strange that basic facts like this, and whether or not there is a real customer, at the heart of the allegations would not be known.

  • Some of us believe man did land on the moon, and that IH likely replicated, or at least improved it slightly so that it would work


    Uh, huh. Well, you may believe that, but you have zero evidence for it, and there is tons of evidence against it. Rossi's data makes it clear that he got no excess heat. The facts listed in I.H.'s Answer shows that Rossi and his company are frauds. Plus, as I said, if I.H. had replicated they would have paid $89 million and they would be rapidly improving the gadget now.


    People believe all kinds of nonsense without evidence, contrary to common sense. Just because you believe something that does not make it true.


    If you think the Answer is a lie, then apparently you think that billionaires would deliberately take steps to lose a lawsuit and $267 million, and that one of the best law firms in the country would go along with that for no apparent reason.

  • Technically IH didn't lie. And they most certainly don't think they lied in the answer. But my point stands. And there is evidence, as I included in my (admittedly terse) post. The primary evidence is the patent application where IH named their own co-inventor and their actions to maintain/improve the claims in the application recently. And it is good evidence, open and available to anyone.

  • And there is evidence, as I included in my (admittedly terse) post. The primary evidence is the patent application where IH named their own co-inventor and their actions to maintain/improve the claims in the application recently. And it is good evidence, open and available to anyone.


    No, a patent is not evidence for anything, nowadays. Many patents are filed based on speculation alone, and they often turn out to be wrong. Nowadays there is a rush to file for patent because the rules were changed to "first to file" so people file all kinds of nonsense.


    Those people at I.H. would not get themselves embroiled in a lawsuit for $267 million if they had evidence for excess heat. They are not fools. It is costing them lots of money, effort and time to defend against the lawsuit. If Rossi's device worked it would be worth billions and they would pay $89 million without hesitation. If they were willing to pay $11 million before, why would they not be willing to pay $89 million now? That makes no sense. It would cost them billions to develop the thing into a practical source of energy, so the $89 million would be only a minor expense. If they do not pay now, and they go ahead and develop the thing into a practical source of energy, they will surely be forced to pay eventually, with a large penalty attached. Once they start licensing or selling a practical device that would make it an open and shut case. At that point, Rossi could sue them for $300 million or $3 billion for that matter, and easily win.

  • If Rossi's device worked it would be worth billions and they would pay $89 million without hesitation.


    No they wouldn't. No inducement = IH didn't pay the $89 million. The didn't have to.



    If they were willing to pay $11 million before, why would they not be willing to pay $89 million now?


    Because they were induced to pay the $11 million.



    It would cost them billions to develop the thing into a practical source of energy, so the $89 million would be only a minor expense.


    $89 million: a minor expense for a risky startup with all kinds of regulatory uncertainty. Ah uh.



    If they do not pay now, and they go ahead and develop the thing into a practical source of energy, they will surely be forced to pay eventually, with a large penalty attached.


    Not necessarily. And this is the calculus. They improved it (presumably designing-around Rossi's claims). They own the improvement.



    Once they start licensing or selling a practical device that would make it an open and shut case.


    No, because see above.



    At that point, Rossi could sue them for $300 million or $3 billion for that matter, and easily win.


    I suggest you bone up on these matters a bit more.

  • Not necessarily. And this is the calculus. They improved it (presumably designing-around Rossi's claims). They own the improvement.


    Patents do not work that way. They -- along with everyone else -- would have to pay royalties to Rossi even if they sold the improved version. More to the point, Rossi could show that they reneged on their promise to pay him the 89 million, and the reason they gave for that was false. He could show that it actually worked after all, and I.H. was lying. The whole world would see that. Anyone could win at trial with that kind of evidence. Rossi could easily win $267 million (a 3 X penalty).

  • Patents do not work that way. They -- along with everyone else -- would have to pay royalties to Rossi even if they sold the improved version.


    Deja vu!!! Blocking patents--YES! Patented claims for which the claims have been designed-around--NO! I am suggesting the latter, not the former.



    More to the point, Rossi could show that they reneged on their promise to pay him the 89 million, and the reason they gave for that was false. He could show that it actually worked after all, and I.H. was lying. The whole world would see that. Anyone could win at trial with that kind of evidence. Rossi could easily win $267 million (a 3 X penalty).


    There is nothing easy about litigation, even if the facts are on your side. But, I generally agree that if it actually works, it will come out during the litigation/trial.

  • Deja vu!!! Blocking patents--YES! Patented claims for which the claims have been designed-around--NO! I am suggesting the latter, not the former.


    The I.H. patent was an improvement, not a blocking patent. If that patent succeeded, I.H. and all companies that use it would have to pay Rossi, as I said.


    There is nothing easy about litigation, even if the facts are on your side. But, I generally agree that if it actually works, it will come out during the litigation/trial.


    If these events transpired, Rossi would be world-famous. He could easily hire the best lawyers on earth, without even paying them upfront. He could win billions of dollars from I.H. and others who used the patents, not just hundreds of millions. It would be like taking candy from a baby.

  • Am looking it over now and will let you know my thoughts. BTW, first impression: while parts are certainly heavy in legalese, it isn't gobbledygook, although I can understand why some might think that.


    It is not gobbledygook. It is comprehensible as legal language. Much of it is nonsense compared to known fact, but that is a different matter. "Known fact" is, of course, a matter to be determined in court process.


    This process resets the Answer clock, otherwise running for Rossi to Answer the countercomplaint, on the claims covered.


    The motion makes factual arguments in order to set up a legal argument. The facts alleged contradict what is already in the record as claims by IH, some supported with evidence. In a Motion to Dismiss, factual argument is a no-no. IH made a factual argument in the Motion to Dismiss, and it was a footnote, clearly dicta. Only if fact is uncontroverted and established can it be used to negate a claim and complaint.


    The Motion begins with an Introduction giving an alleged factual background. It is heavily conclusory and argumentative. There is no doubt that the counter-defendant may claim those conclusions in defense, as they were claimed in the original complaint. However, they may not be used as evidence to create a cause for dismissal. I'm going to first look at the IH Motion for Dismissal, their Introduction, for comparison.


    Quote

    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 Defendants were limited in their use of certain information they received from Plaintiffs. Attached to, and incorporated into, the Complaint, however, is the License Agreement. The plain language of that Agreement, coupled with the admissions in the Complaint, demonstrates that Plaintiffs’ central contentions are incurably flawed: The License Agreement required performance by Plaintiffs within a specific time period, which Plaintiffs acknowledge did not occur within that time period, and the License Agreement permitted IH and IPH – after having paid Plaintiffs over $10 million (which Plaintiffs admit was paid) – virtually unlimited usage of information they received from Plaintiffs.


    Plaintiffs’ non-contract claims, brought in an effort to bring parties into this litigation beyond IH and IPH, suffer from additional fatal flaws. Plaintiffs’ misconceived fraud claims are simply efforts to recast breach of contract claims as fraud claims, but this is clearly impermissible. They are not predicated on the breach of any duty independent of contract-created obligations. The Complaint also fails adequately to allege facts in support of Plaintiffs’ non-contract claims, and further suffers from an impermissible lumping together of Defendants without identifying how each Defendant allegedly committed each claimed infraction. For all of these reasons and the additional reasons set forth below, Defendants respectfully request that the Court dismiss the Complaint in its entirety.1 [the footnote was the first hint at actual IH defense, moot for the Motion to Dismiss]


    Then IH went over each Count in the Complaint. This was brief and to the point. Some of the IH objections were sustained, some not, and the theme for non-dismissal was that the Judge found, in the Complaint, sufficient cause to think there was some possibility, even if remote, that the Plaintiff might be able to establish what was claimed. For example, it was implied in a Rossi statement that IH was a wholly-owned subsidiary of Cherokee, leading to a conclusion that including Cherokee as a defendant was allowable, until more fact could be on record. that was a false claim or understanding. But the Judge is not sitting in judgment on the truth or falsity of claims. What I saw in the Judge's ruling was that she was willing to go far to interpret the complaint and evidence favorably to the plaintiff, and that was proper, and, we might note, IH did not appeal. Were it improper and with serious consequence, I'd have expected an appeal.


    That introduction includes conclusory argument, but it is well-grounded and simple. I expected that the Judge would require the Plaintiff to alleged fact beyond what was alleged, to remedy the problem; for example, estoppel on the time period as being de-facto waived. That IH did not point to the 2nd amendment requirement for a written consent was, I considered, a flaw. I'm not sure that the Answer adequately addresses this, because estoppel here won't fly, or, more to the point, would need to be much more clear.


    So, the Rossi Introduction. It is longer and my starting impression is that it includes much argumentative dicta, generally about imputing motive or reprehensibility. I will go over it piece by piece.


    Quote

    On April 5, 2016, Plaintiffs ROSSI and LEONARDO were forced to commence the above
    styled lawsuit as a result of, inter alia, Defendants IH and IPH’s breach of a provision of the
    parties’ License Agreement which required IH (and assignee IPH) to pay to Plaintiffs Eighty-Nine
    Million Dollars ($89,000,000.00). See (DE:1).


    The nonpayment of $89 million is an acknowledged fact. Whether or not this was a breach of the Agreement is what the case is about. DE:1 is Docket Exhibit 1, the Complaint. "Forced" is argumentative and irrelevant. The date of the filing is moot. When the suit was filed, the alleged payment was not yet past due, however. IH has not elected to point this out because it's really moot. They were not going to pay and Rossi probably knew that long before then.


    Quote

    The aforementioned payment came due after a
    nearly yearlong operational test performed by a, mutually agreed upon, independent third party
    expert. (DE:1) (DE:30, ¶67).


    That the "third party expert" was independent is challenged in the Answer. That this expert was "agreed upon" for the purpose of that test is challenged. Rossi is here repeating the claim of the Complaint. I have included the cited Answer paragraph in the quotation. There are two paragraph 67s in the Answer. Neither establishes the point, that the test was "performed by a mutually agreed upon, independent third party expert. This is an error. It could also be deliberate diversion, but let's not go there.


    Annesser does not reference the relevant paragraph in the Complaint (DE:1). The first mention in the Complaint of "the ERV" for the "GPT" is paragraph 65:


    Quote

    65. Accordingly, on January 28,2015, the ERV prepared and submitted to the parties
    a proposed test protocol for the Guaranteed Performance Test. After suggesting minor changes to
    the test protocol, and clarifying other points, DARDEN on behalf of IH andlor IPH agreed to the
    test protocol prior to the commencement of the Guaranteed Performance Test.


    IH's Answer to that is:


    Quote

    65. Defendants deny the allegations in Paragraph 65.


    And they went on with something much more specific:


    Quote

    66. Defendants deny that the test referenced in Paragraph 66 was the Guaranteed
    Performance to be performed under the License Agreement. Defendants lack sufficient
    knowledge or information to admit or deny that Penon performed a thorough inspection of or
    installed his monitoring equipment on the Plant on February 19, 2015. Defendants deny the
    remaining allegations in Paragraph 66.


    "ERV" is a role defined by some agreement. For there to be an "ERV" there must be a GPT first, and the parties must agree on the ERV. The way the Agreement is worded, there may be an assumption that the same ERV will continue for the GPT as in the Validation Test, (where Penon is, without argument, the ERV), but given that the start of the test must be agreed upon in writing, if that is not satisfactory to IH, they have some power in negotiation. However, it does not appear that Rossi invited them to approve the start of the GPT, nor to approve Penon as ERV, but only set up Penon as an expert to measure results. IH, by this time, would have been suspicious, and that is exactly why Rossi would not ask, but would attempt an end run around the requirement. But that is not important here, exactly, the point here is that Rossi is emphasizing fact which he knows as contested as a basis for the arguments to come.


    (continued)

  • (continued)


    Quote

    During such test, Defendants had two full time representatives
    present at all times relevant thereto. (DE:1) (DE:30, ¶67).


    Paragraph 67 is quoted above. It is not evidence that these were "representatives" to "such test." It is also irrelevant. Rossi has made this argument many times, that IH objections are preposterous because they had two representatives. However, only one of them was charged, as far as we known, with a reporting requirement, and both were there primarily to "help Rossi." Fabiani, with a contractual reporting requirement, apparently developed the control systems for the reactor. (And failed to report, at least partially.) He would not be considered independent because of strong prior connection with Rossi. Barry West might be independent, but was clearly under the authority of Rossi. If Rossi had told him not to tell IH something, a problem might have arisen, but so far, there is no allegation of that and IH has no problem with West. Essentially, his job could have been to use a soldering gun, and other tasks for a technician.


    Quote

    In and [sic] unfounded attempt to justify their
    non-payment, Defendants IH and IPH filed their Amended Counterclaim and Third Party claims
    alleging that Plaintiffs breached the License Agreement and committed other non-contract related
    offenses. See (DE:30).


    Whether or not the claims are unfounded is, of course, to be determined in discovery and trial. There are breaches alleged. Such breaches may or may not justify non-payment. All the offenses I have seen were Agreement-related. Maybe I missed some. I will study the specific claims separately. The ascription of motive, ("in an unfounded attempt") is argumentative and conclusory, for sure. Not factual. Referring to the entire and lengthy document is useless. What paragraphs? But this is an Introduction. Annesser may be more specific later.


    Quote

    Moreover, as a red-herring, Defendants IH and IPH assert claims against
    most of the persons and/or entities who were involved in the testing of the underlying licensed
    technology including, but not limited to, IH’s own consultant and the independent third party
    expert selected by IH to evaluate the licensed technology. (DE:30).


    Were I the judge, I might be mildly offended at the idea that I could be successfully distracted from the real issues by a frivolous claim ("a red herring.")


    Fabiani and Penon are "IH's own consultant" and the "independent third party expert," who rather obviously were not independent. They were both chosen by Rossi, though IH does not emphasize that for Fabiani, they do for Penon, as to being the ERV for the Valdiation Test. They may have paid Penon for monitoring the Plant, but he was at least partially dysfunctional for that. IH then suspects that Penon's certification of the Validation test was also fraudulent.


    This is, however, not "most of the persons who were involved in testing the underlying licensed technology. There were many tests, peformed by various entities, including, and highly significantly, IH"s own tests of the devices ("the underlying technology"). IH has not asserted claims against most of those invoved. Only Rossi, Penon, and Fabiani. Only by limiting the examination to the alleged GPT, which was not a test, per se, of the underlying technology, could this claim be made.


    Once again, this is moot. The motivation for a lawsuit is not an issue in the suit. If it is frivolous, without foundation, as expressed, it can be dismissed, but why it was frivolous makes no difference legally. It could be a mistake, it could be stupid, or it could be vicious and an attempt to injure. None of that is relevant to a motion to dismiss. A motion to dismiss must be based on a showing that the claims in the complaint, even if all true, are legally insufficient to establish the basis for a lawsuit.


    Quote

    A plain reading of the Defendant’s Counterclaim demonstrates that the Defendants themselves are unable to distinguish between the rights, obligations and actions of IH as opposed to its apparent alter ego IPH. Notwithstanding Defendants’ numerous factual misrepresentations,1 as discussed more fully below, Defendants claims are both factually and legally deficient and cannot stand as a matter of law.


    This is completely weird. IPH is a wholly-owned subsidiary of IH, and, as such, is largely indistinguishable.


    Footnote 1 is this:


    Quote

    1 Defendants’ factual inaccuracies are not properly considered in a Motion to Dismiss therefore will not be discussed herein.


    That footnote more or less mirrors the IH footnote, though IH gave much more information in it, including what might be called the "fundamental problem," that they were unable to verify the IP independently. The Rossi version provides no clue.
    Now, this IPH thing. IPH is a holding company, wholly-owned by IH. The First Amendment clearly specifies that IH may sublicense, and no party may assign the license without the consent of all the parties, but adds that consent is given for subsidiaries which are "wholly-owned," and that such assignment does not relieve the parties of any responsibilities under the Agreement.


    If one of IH or IPH has a right or responsibility, I read that they both do, it is joint. Rossi sued them both, and IH has not complained about that.


    Quote

    For the reasons set forth below, Plaintiffs respectfully move this Court to dismiss the Amended Counterclaims.


    I may examine, in future posts, the specific counts.

  • The I.H. patent was an improvement, not a blocking patent. If that
    patent succeeded, I.H. and all companies that use it would have to pay Rossi, as I said.


    Of course the IH patent was not a blocking patent! It was filed after Rossi's. The question is whether Rossi's patent is a blocking patent. I'm suggesting that IH took a look at the claims in Rossi's patent, designed-around them, and filed their own patent with improvements. It literally happens all of the time. That is, in fact, one of the primary strategies in patenting.



    If these events transpired, Rossi would be world-famous.


    Well, he already is pretty famous. I have acquaintances whom I generally consider to be pretty clueless who have even heard of him.



    He could easily hire the best lawyers on earth, without even paying them upfront.


    Baloney. Try to hire a lawyer on contingency. Much harder than you might think. Do you have a slam-dunk personal injury case? Then, okay, you can probably find one.




    He could win billions of dollars from I.H. and others who used the patents, not just hundreds of millions.


    Well, he would have to prove infringement first. Given the amount of money at stake in a hypothetical e-Cat patent infringement case, you can expect around $10-$20 million in lawyer fees. Add in multiple patents into the mix, and that number multiplies.



    It would be like taking candy from a baby.


    What a horrible thing to contemplate. Babies should have a little sweet now and then.

  • Jed:

    Quote

    Those people at I.H. would not get themselves embroiled in a lawsuit for $267 million if they had evidence for excess heat. They are not fools. It is costing them lots of money, effort and time to defend against the lawsuit. If Rossi's device worked it would be worth billions and they would pay $89 million without hesitation. If they were willing to pay $11 million before, why would they not be willing to pay $89 million now? That makes no sense...


    I agree with most of that. But they did act as fools when they apparently accepted the word of the Swedish professors and Levi and Rossi's own data as proof that the ecat worked. One can only hope that they have wised up. It seems they have with respect to Rossi but I think they are still being duped by Brillouin and who knows who else. Will they learn the lesson FIRST test PROPERLY and only then invest? I doubt it. Not until several other of their projects crashes and burns. Which may not be long, especially if they insist on proper testing now.


    But yeah, of course anyone with the cash would be willing to pay $100M +/- for the exclusive rights to develop and sell working very high power LENR reactors or boilers. Not doing do would be sheer folly... if, of course, the reactors and boilers really worked.

  • It just got very hot in Florida. Document 42 reveals the result of the hearing two days ago. Document 43 is a Motion for Judgment on the pleadings by Darden, as to Count I. This would be Summary Judgment on the core of the Rossi case.


    Remarkably, they do not yet assert a failure to obtain written consent to the GPT, they simply rely on the language of the Second Amendment and the issue that what was tested in Doral was not the plant as described there ("Six Cylinder Unit."). Obviously, had they consented to a substitute test, that would estop this claim. But it's looking like they never consented.


    It occurs to me to describe this as the Chinese water torture, they are taking apart the Rossi claim one drip at a time. They have not yet made the strongest argument. It is quite interesting tactically.


    As long as the Motion is not frivolous -- and this is not frivolous -- they can file as many of these as they like. This is different from the MTD version because there is now more evidence in the Record.


    Rossi had until today, I think, to file a response to the IH Answer. He hasn't, and he did not object to the Answer itself, only to the Affirmative Defenses.


    If I were of a conspiratorial mind, I'd think that Jones Day set up those vague defenses to distract the hell out of Annesser. But I'm not.


    I should have the two new documents up in a few minutes.

  • There is nothing easy about litigation, even if the facts are on your side. But, I generally agree that if it actually works, it will come out during the litigation/trial.


    This trope is repeated on Planet Rossi, and some others think so. No, the trial is not about whether or not the technlogy works. It is about whether or not Rossi disclosed it fully, and then whether or not the GPT was properly performed and assessed. If so, then, unless there were other failures to perform that were critical and not readily ameliorated, IH owes Rossi $89 million. The fraud claim will fail unless there is evidence for actionable deceit (so far, there is none.)


  • I didn't say this is what the trial is about. But that is what will come out.

  • IH Fanboy wrote:
    Deja vu!!! Blocking patents--YES! Patented claims for which the claims have been designed-around--NO! I am suggesting the latter, not the former.


    The I.H. patent was an improvement, not a blocking patent. If that patent succeeded, I.H. and all companies that use it would have to pay Rossi, as I said.


    Jed is quite correct here. I've discussed that IH patent at length with a patent attorney. First of all, it named Rossi as inventor. The alleged problem is that it named a co-inventor. However, this was the Lugano device or based on it. IH made that device, and there may have been ideas from the IH engineer, so it was legally necessary to include his name.


    That patent was quickly filed before the Lugano report. That report would have invalidated the patent. Some Rossi patents around the world were apparently rejected precisely because of this. The patent was amended to fix problems. All of this was to protect the Rossi IP. This was not in any way illegal or improper, and they were explicitly allowed to do this by the agreement. Rossi was not harmed by that patent and possibly protected. But Rossi is insane. The evidence for that is overwhelming. It seems to be getting worse.


    The words "ungrateful wretch" come to mind. I wonder why.