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

Peter Gluck and TTH about Defkalion:

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That is true, and often not understood by those who call fraud too quickly. But, equally, severe measurement errors are a sign of some major inability to provide correct results, whether deliberate (and hence possibly fraud) or due to some combination of incompetence and bias.

In Defkalion's case, there is iron clad evidence that they were unscrupulous and chronic inveterate, consistent liars. They were also duplicitous and arrogant. In other words, Hadjichristos is an ayhole. Check, for example, on Peter's blog for the conversation in which Hadjichristos invited me to test their device, I made arrangements to send academics to see him at the Canada offices, and he never returned their calls or made appointments. All he was trying to do was entice me to reveal my identity so he could mock me. Then, check out Hadjichristos claims on the Defkalion blogs that seven of the world's largest companies had tested and approved the Hyperion. Total fabricated lies. Defkalion's principals were liars who tried to fool Dick Smith into wasting a million dollars. They had to know full well that their tests and claims were fictitious. There is no way that this could have been an honest error in measurements. None at all. Just check their entire history. The whole company was started simply to rip off Rossi, which is hilarious in itself since, obviously, there never was anything to rip off!

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Indeed Rossi's fuel samples appear to have unusual isotopic constitution. There was a time, several years ago, when he claimed exactly that on his blog. Rossi's ash samples also sometimes seem to have unusual isotopic constitution. We have however no good evidence that ash and fuel differ in isotopic constitution, nor have any of the "replications" indicated this. That is the thing that would establish beyond doubt that the device worked.

I have no idea why believers in Rossi get so worked up by the analysis of supposed reactor ash.

Rossi's so-called ash samples are simply mixtures Rossi fabricated and placed inside the reactor to bamboozle the sloppy Swedish scientists. The initial samples in 2011 showed that Rossi hadn't even bothered to buy copper isotopes but simply added ordinary copper scrapings to his supposed ash sample that he provided for Kullander. Later samples showed the addition of a single unusual nickel isotope in comparatively high concentration and in isolation, a result which could only be explained by Rossi buying the isotope and salting the sample with it. This is completely consistent with Rossi's behavior in the Petroldragon and thermoelectric scams-- false or nonexistent final results supported by very badly faked intermediate results.

One characteristic of scams like this (and those of Steorn, Tilley, Lee and many others) is that believers invariably give huge benefits of doubt to the scammers. That explains in part how they get away with what end up being highly transparent and obvious scams.

Not sure what you're saying there, Jed. IH in the persons of Vaughn and Darden were "stupid enough" to invest more than $11.5M and risk appx $90M more with Rossi's claims. Other people's money, of course. And they are risking yet more in such dubious ventures as Brillouin and who knows what else they are dabbling in these days. I know you disagree but I doubt that they learned their lesson. Yet. They will though, eventually. But look at Steorn. People gave them something like a million dollars as recently as a year ago or so. Wow.

Quote from randombit0

So you are back again Boys !

Hi, Andrea! Your friend who stands for his children here. I do that by working for the real future of LENR, among other things. I just wrote, yesterday, this: https://groups.yahoo.com/neo/g…/conversations/topics/852, about your incredibly cruddy understanding of basic physics, including the relationships of units. That you did not know the number for joules in a kilowatt-hour is diagnostic. (it is 60 x 60, do you know why?). You attempted to ridicule me for saying what any student of physics knows, while citing a well-known physicist as agreeing with you -- when he actually was explicit on one page I found, saying what I said, that you had claimed was totally ignorant, plus you waxed eloquent about idiots and paid critics, all of which is your paranoia, which created conditions for your being jailed in the past. This is simply a clear demonstration of the reality of Rossi.

Your magic isn't working any more. Fewer and fewer believe what you say. This claim of having already established something already is another version of "because I said so."

There is a difference between you and me. I don't pretend to be anything other than what I am. Nice photo you chose for your avatar. The photo here for me is actually of my family. The name here is actually how I'm known. Reality. I love it. Do you?

I have not gotten a dime from Industrial Heat. You got $11.5 million and more. So who is "paid"?

Quote from Peter Gluck

As regarding Rossi the problem now is simple:
- has he obtained multiplicative excess heat in the 1 MW plant or not? Is the clumsy and technologically iliterate Exhibit 5, now the central piece of the antiRossi battle able to demonstrate that it was zero excess heat? Will more samples of fuel show isotopic shifts- the certainty that the devices worked?

This is the problem, Peter. You have a fixed idea of what the issues are, when you became highly attached to certain alleged "facts." There is no way to clearly and firmly answer the issue of whether or not there was excess heat in the "1 MW Plant" or not, and the reason is that Rossi set up conditions to make it impossible to confirm, to make it depend on whether or not one trusts Rossi. The deception involved in doing that was blatant and obvious, if you study the documents in Rossi v. Darden.

This wasn't new behavior for him. It's what he's done since before 2011. He creates confusion.

Exhibit 5 is a set of questions asked of Penon, the alleged "ERV," by Murray, the IH Engineer. You may call it "technologically illiterate," but that's your own unsupported opinion and you have been discrediting yourself by the stridency of your arguments on this. The point of that document was not to be some sort of proof of a problem with the "test," but that Penon did not reply to questions from his supposed customer. This is part of the IH case against Penon, but the strong case is against Rossi. That whole "test" was set up fraudulently. The evidence is in the IH Amended Answer, Affirmative Defenses and Counter-complaint and Third Party Claims, and attachments. And reply was due on Friday; as a result of Rossi not meeting that deadline, IH filed a Motion to Dismiss which has a strong chance of being sustained. Planet Rossi has been proclaiming how strong the Rossi case is, and how good an attorney Annesser is. It looks like he made an enormous error, though it may be recoverable, if Rossi replies before the Judge rules.

But how is he going to reply? What is alleged in that Motion to Dismiss was just admitted by Rossi on his blog. The "Six Cylinder Unit" was not just another name for the "E-Cat Plant." If it was, was there a written consent to that substitution? Was there a written consent to the start of the Test, as required by the Second Amendment?

Annesser spent 2.5 pages responding to a tax allegation that was fluff and of no particular consequence. One sentence would have sufficed! Annesser appears to be like Rossi: reactive, hysterical, not detached. Rossi now has newer, more experienced counsel. We will see if it makes any difference.

I should add one point, though. The conditions of the Doral plant make it very likely that if there was XE, it was far less than a megawatt. Heat dissipation problem. IH would never have agreed to the Doral conditions as a "Guaranteed Performance Test," with the heat going into an inaccessible "secret customer area." Rossi did not ask them to approve it. He asked them to allow a sale of power, to a customer he claimed was independent, and then to hire Penon to measure the power. And then, later, he claimed this was a GPT. That's called "bait and switch."

I don't know what Jed means by suggesting that Cherokee and IH invest money belonging to Vaughn and Darden, if that is what his ambiguous comment meant. Sure, they may have some stock in their own company, most of it probably awarded to them as bonuses and perks. But most of the fund money is from investors. And that is "OPM" (Other People's Money from the classic and funny Danny De Vito film of the same name).

There may be some confusion about where else IH are investing in LENR and/or cold fusion. Maybe they could clarify it but they won't.

As for what I said which Jed and others continually twist and distort-- I said I am not a specialist in electrochemistry and in very low power claims for LENR, I have little interest in those and I have no special talent in investigating them. But I can read critiques of such claims as neutrons causing CR-39 tracks and the relevant errors in those claims. Jed claims I said I know NOTHING and READ NOTHING about claims for LENR but I do know SOME things and I have read some papers, including a few of those Jed pointed me to and which were uniformly disappointing. It's just not a major interest nor something I am specialist in or have that much interest in. And of course, I will continue to voice my opinion. And one of my opinions is that if you can be fooled as easily as Jed was by obvious crooks like Defkalion and Rossi, then your evaluation of any claim of a scientific nature will be highly questionable and quite possibly grossly incorrect.

Quote from THHuxley

Peter wrote:

That is true, and often not understood by those who call fraud too quickly. But, equally, severe measurement errors are a sign of some major inability to provide correct results, whether deliberate (and hence possibly fraud) or due to some combination of incompetence and bias.

Peter was a strong fan of Defkalion, holding on long after others gave up. On his blog, Peter assigns strong value to "never give up." It's a very dangerous position. That is, there is high value to patience but persistence without clear vision is extremely dangerous, it can take us right over a cliff.

The Gamberale report was devastating. Defkalion vanished. Hadjichristos went to work somewhere else, apparently. I have a report that Defkalion did continue to research and develop privately, but there is practically no way to verify this.

While it is possible that what Gamberale found was not fraud but, as Peter says, measurement error, but the nature of the error and the apparent Defkalion response to it being pointed out leads to fraud as quite likely. Bottom line, after that, nothing they said could be trusted. Peter may think it important to defend them, as above, but ... this is all talk without purpose. They are not on trial; it is just that, I'll say it again, their results cannot be trusted. We need to let that go. What is real will come back.

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And the above, using setups that they have previously been told were defective, shows a lack of care that is at best very worrying.

Indeed. If Hadjichristos would open up, some value might be recovered. At some point, we hope that people will come to see that concealing major error or worse, here, damages the future of LENR, which damages the future of humanity. Gamberale appears to have decided that the need for truth outweighed a non-disclosure agreement, so he blew the whistle. That takes courage. He risked a lawsuit.

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I think you misunderstand the position. No-one can ever demonstrate there was zero excess heat. IH look to have done a good job of showing that the extravagant amounts of excess heat the ERV claims don't exist. That then casts doubts on the whole enterprise. IH further look to have a good chance (independently of this) of casting further doubts on Rossi's probity. In fact we have indisputable evidence that Rossi lies about tests unless you believe the IH letters given as exhibits are fabricated.

If they lied about those exhibits, I'd expect that by now Rossi would have replied to that effect. He hasn't. While it is a rebuttable assumption, I do think we can assume that Rossi did send those emails.

Comparing the email to the Mats Lewan account of the 2012 Hydro Fusion test reveals much. Rossi either lied to Hydro Fusion, or he lied to Darden, or he was massively confused and deluded. Lewan shows him as being ignorant about measuring input power, and making essentially stupid arguments to the engineers present. He tells Darden that he faked a negative result to get out of his agreement with Hydro Fusion. He was admitting a form of fraud, while considering it a "magnificence." However, if that is what he had actually done, his dramatic stupidity was not a necessary part of that. Indeed, his story to Darden was that he had preserved his reputation by letting them know in advance that the device might not work. He did not behave that way, according to Lewan. So much more likely, he lied to Darden about the test being a deliberate failure. And there was no need for him to "get out" of that agreement. It was not in conflict with what was negotiated with Darden.

No. He lies. He often maintains a plausible deniability, and excuses are made for him. He says he has a sale. There is no sale. Well, it appeared to him at the time that there was a sale. So it fell through. Big deal, eh? But his lies are not limited to that kind of -- call it exaggeration. He claimed in March 2016 that there was "no divorce" with IH, while, at the same time, very likely, he was preparing to sue them, they were already communicating by February through attorneys -- the same ones as for the lawsuit.

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This is perhaps a slip of the fingers - but revealing nevertheless. Indeed Rossi's fuel samples appear to have unusual isotopic constitution. There was a time, several years ago, when he claimed exactly that on his blog. Rossi's ash samples also sometimes seem to have unusual isotopic constitution. We have however no good evidence that ash and fuel differ in isotopic constitution, nor have any of the "replications" indicated this. That is the thing that would establish beyond doubt that the device worked.

The existing evidence leads to a strong inference that the samples were salted.

As a more general principle, isotopic shifts are not proof of excess heat, i.e., that the devices worked. To accomplish that requires quantitative correlation of heat and isotopic shifts. Otherwise there may be other causes. That can't be done with a single sample.

Now, there was the Lugano result, call that a baseline. This sample was mysterious in some ways, seeming to indicate that the reactor was ready to run out of transmutable isotope. The sample provided by Rossi in May (apparently according to Bo Hoistad), where was that from? Rossi denied having anything to do with the release of that information. Again, plausible deniability. "I didn't say that I didn't provide the sample, I said I wasn't involved in the release of information!"

But that sample showed the same isotopic shifts as the Lugano sample. So where did it come from?

If it came from the Doral test, isn't it suspicious that the shifts are the same even though the Doral plant operated for a year, whereas the Lugano reactor only operated for a month? Rossi has claimed that the Doral devices were starting to fail. Is there any sign of that in the Penon report? (My guess is not.)

If it did not come from the Doral plant, then this would show that Rossi has access to a source of shifted material. And the obvious inference is that he supplied both, with his known supplier of isotopic nickel.

Once again, putting the best construction on this, Rossi showed terminal naivete in always being the one to confirm, in effect, his own work. He set up the Doral plant so that he could have complete control, and, violating the Terms sheet, signed by him and IH and Johnson for JMP, he asserted that control not only to exclude IH personnel from the "secret customer area" -- contrary to what he told Mats Lewan, there was nothing about that in the Terms sheet -- but also to exclude the IH engineer from visiting IH's own plant.

This is preposterous beyond preposterous. Rossi has, we must assume, deliberately created untrustworthiness, and his reasons are actually irrelevant. Peter has claimed that we are trying to "kill the Rossi technology." No. We aren't. Certainly I am not. Rossi might have completely trashed his position and financial health by filing that lawsuit, it may bite him in the ass, seriously, but if not for that, and maybe even through a possible settlement, he may be able to continue his work. If he has a real technology, all he has to do is, say, show someone -- Hydro Fusion, say, or Industrial Heat -- how to make it work, and let them do that. He would make billions. He could even to that while in jail. But he would have to trust someone.

It is just that IH is not going to give him more money until he does that, which was required by the Agreement. So far, he has not asserted that he actually gave them the full technology. He avoided saying that in his Complaint. Now, in a Motion to Dismiss the Counter-Complaint, his lawyer hints that the problem was perhaps IH incompetence, use of poor materials, etc. But that is not actually a legal claim, it was fluff, a mere hypothetical possibility raised in a clumsy effort to shoot down the IH counterclaim.

I just checked PACER. Still no reply from Rossi to the Amended Answer. At this point the IH claims in the Amended Answer stand without contradiction. He's in trouble, and it is not trouble that we created. He created it.

Quote from JedRothwell

Wyttenbach wrote:
They let one year pass away and did not document what happened on the customer site!

How do you know they did not document it? Have you been to their offices? Have you hacked their computers?

I just added Wyttenbach to my Hide list. Too much useless and often malevolent speculation or misinformation, so less temptation, now, to waste time replying. If he writes something worth spending time with, someone will point it out.

IH had sources of information. There was Fabiani, Rossi often points that out. Fabiani, though, was probably really working for Rossi. There was Barry West. My recent idea is that Barry West was actually an ex-intelligence agent, expert at getting people to reveal secrets. Just a speculation, mind you. He might have just been a technician good with a soldering iron.

As we have heard alleged, IH may have done IR surveys of the roof. Not difficult, particularly considering the money involved. They were supposedly getting almost $30,000 per month from JMP. Fabiani's contract was for $10,500, and there may have been expenses, like his apartment, on top of that. We don't know what Barry West was making, nor Penon.

However, as to any open and direct information, Rossi did much more than exclude IH from the "customer area," which is what he acknowledged to Mats. He blamed it on Penon saying it was not "necessary." One more piece of evidence that Penon was conspiring with Rossi! In fact, that was not part of the agreement with JMP. Rossi lied. So new?

Jed you wrote about that exclusion that it was proof of fraud in itself. However, the reality was actually worse, the IH Engineer was prohibited by Rossi from visiting the IH Plant. that's worth quoting from 29.19 (same as 30.19). this was to Vaughn.

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About the meeting of Tuesday, you obviously can come when you want, while Joe Murray cannot enter in the factory of JM because, as I have explained to Tom during the visit with Brian Mc Laughlin, I do not allow anybody, except for the personnel already reciprocally authorized, to approach the plant before the tests on course will have been completed.

This was in July 2015. This was already, by then, a major breakdown.

Blatant violation of the agreement. Totally invented. The reason? "I do not allow." Rossi says. So, how could IH verify what was going on in that Plant? I suppose Vaughn could have visited and taken lots of photos and videos. But the Terms sheet was clear. IH could visit at any time with guests or their personnel.