Rossi v. Darden developments - Part 1

  • Fanboy,You have a habit of attributing things to people that they have not said.

    I have said nothing about ash. I have given no guess at Rossi's motive of removing the fuel and altering the system when he left.

    Who said that IH "built in special protections "? Can you give a non-Rossi reference?
    If Rossi "refueled" as he claims, then evidently there were no protections in place or he would not be able to do so.

    It often sounds like you are making up things or attributing to IH what Rossi said without any proof or reference.

  • Plus, if Rossi was not lying, he took the fuel charges out when Murray started getting too nosy and asking too many engineering questions.

    I think Rossi said he did that at the end of the test, which was long after Murray asked the questions listed in Exhibit 5.

    I think Murray memorialized (wrote up) the questions long after he first asked them.

  • Abd- "The sale of the system did not specifically include the fuel. However, the License transfer included full disclosure of IP, with the fuel formula being, supposedly, disclosed."

    Without the fuel it would not be a functional device even if what Rossi claims is true. If he did not sell IH a functional system with the fuel then what was sold? What was to be tested? It seems like someone selling a car but then removing the engine when it is parked in your drive saying that that wasn't really included.

    I sure would be interested to know if IH or Rossi paid for the nickel, lithium and hydrogen.

    I guess I just don't understand the law.

  • @Paradigmnoia

    Thanks for digging up the quote. I actually do remember that, but there is no mention of photographs.

    Dewey said:
    "Or maybe that was just a something similar to a radiator that the govt inspectors saw on the customer side of the wall?"

    Based on Dewey's comment, he somehow has been informed that government inspectors saw something similar to a radiator on the customer side. Would be interesting to know how Dewey came into that information. Also, no mention of photographs.

    But who knows, maybe the government inspectors did take photographs. Given the importance of whether the e-Cat works or not to the world, maybe any such photographs should be made available to the public. And maybe they could be under Florida's Sunshine Laws.

  • You sometimes walk a fine line. This is a public forum and you are posting with your (apparently) legal name.

    Are you suggesting there is a law against saying a person is crazy? You are wrong about that.

    He filed the lawsuit because he knows what he has.

    Or, he filed it because he is crazy. Or because he is a nefarious crook who thought he could steal $89 million more.

    I know what he has: nothing. Bupkis. Zero. That is what his data shows. If he thinks he has something he is a lot stupider than I previously imagined.

  • Abd- "The sale of the system did not specifically include the fuel. However, the License transfer included full disclosure of IP, with the fuel formula being, supposedly, disclosed."

    I am still trying to 'wrap may head" around that.
    So if I was to make a "classic" F and P electrochemical cell and sell it to someone, show them how it works in a facility paid by them, I could then later just remove the palladium and walk away from it and wave goodbye??????????

    It just doesn't seem right.
    If the system did not include all working parts need for testing then what was sold? It seems like the assumption would be the entire system that was to be tested would included. Of course if it was just a sale of power and not a testing of a full system to be tested, then it might be a different story. But then Rossi would have to admit that it was not a test of the system he sold.

  • Are you suggesting there is a law against saying a person is crazy? You are wrong about that.

    The law on this is not so clear cut as you might think. Also, Abd is using a different term than what you suggest. Whether or not it is unlawful, Abd is putting himself out there as a potential target of a lawsuit. It be best he heeds my warning. But since he (ostensibly) blocks my comments, he unlikely will ever get my warning. But then again, he is always responding to my posts, so maybe he doesn't really block my comments. And I could care little whether he does or not.

  • The law on this is not so clear cut as you might think. Also, Abd is using a different term than what you suggest. Whether or not it is unlawful, Abd is putting himself out there as a potential target of a lawsuit.

    A lawsuit for what? Defamation of character? Libel or slander? People say "so and so is crazy" (or stupid, or a jerk) a million times a day, everywhere in the U.S. If that were in any grounds for a lawsuit, everyone would tied up in lawsuits their whole lives.

    Rossi has made a public spectacle of himself with his outrageous attempts to defraud I.H. and his ridiculous claims of 1 MW of heat in a room that would kill everyone if that were true. Before that, he nearly blew up the people from NASA and he did many other crazy, dangerous things. His lawsuit is only the latest outrage. Someone who does such things will be called bad names in public. He cannot possibly sue everyone who calls him crazy or criminal.

    It be best he heeds my warning.

    Your warning is inane. It sounds to me like you are trying to frighten people into science, and you know nothing about the law.

  • I don't think the the actual composition of the fuel is nearly as important as Rossi's long and exhaustive experience in the treatment and pre-processing of the fuel. Rossi has said on at least one occasion that the "production of powders" is one of the most demanding aspects of his technology. We know that he doesn't make his own nickel powder from scratch. He buys powder and then performs processes upon it. My thinking is that the various steps in the processing of the powder is more or less an "art" that can easily be screwed up. I think there are steps that are important before the powder is ever placed in the active reactor and important considerations after the powder has been placed in the active reactor. I think most of this know how is getting hydrogen to go into one of the fuels (the nickel) that really, really does not want to absorb hydrogen. Just mixing some ingredients together haphazardly may not work (at least not consistantly) even if you follow everything written in his patents.

    My thinking is that learning the above above "art" of nickel hydrogenation is not too difficult -- if you are willing to put in the time and effort. Basically, I agree that Rossi did not want his technology taking too seriously by the world, because of its simplicity. If you're willing to do the work to learn how to get hydrogen in, you can reproduce the Rossi Effect. This made him paranoid. However, there were real competitors out to figure out his technology so he had a right to be.

    I think it is like giving the typical housewife a set of tools and a set of cliffnotes on how to change out an engine. Or, you could replace a housewife with a non-mechanically inclined person like myself. The notes may give her the basic directions, but she won't have the experience and skills to do the job either without help, without doing additional research, or without taking a long period of time. I've learned the hard way that even replacing a single electronic circuit board buried deep in the dash of a car -- even with precise instructions given online -- can be an exhaustively stressful task.

  • This seems to have been neglected in the blizzard of filings. Rossi filed Document 0056.0_Rossi_Motion_to_Dismiss, September 29, 2016. This is an attempt to dismiss the counterclaims filed by Industrial Heat in Document 50, the "Second Amended Answer etc."

    0068.0_IH_Response_Opposing_Rossi_MTD.pdf was filed October 17, 2016, with a note "Replies due by October 27." So Rossi may reply to this. Otherwise the Judge will rule at some point, she can take her time. I don't think a hearing will be scheduled ... but maybe.

    From Document 50, page 51:


    ... after numerous attempts, both with and without Rossi’s involvement, Counter-Plaintiffs have been unable, using the transferred E-Cat IP, to replicate the results included in the Evaluation Report purportedly certifying that Validation was achieved from April 30 to May 1, 2013, or otherwise generate measureable excess energy.
    97. Only one of three conclusions can be drawn from the foregoing facts: 1) Leonardo and Rossi did not transfer and deliver all E-Cat IP to Counter-Plaintiffs; 2) Validation was never achieved and Penon’s reported COP calculations were false; or 3) both.
    98. Each of these scenarios leads to only one conclusion: Leonardo and Rossi breached the terms of the License Agreement, either by not achieving Validation, not transferring or delivering all of the E-Cat IP to Counter-Plaintiffs, or both.

    The Rossi claim:


    1. Count I: Breach of Contract
    a. IH Lacks the Requisite Standing:

    ... on or about April 29, 2013 IH assigned all of its “rights, title and interest” in the License Agreement to IPH.

    Hence, the argument goes, IH isn't owed jack. There are so many things crazy about this that I'm not going to bother with much detail. Rossi sued IH for performance on an agreement, worked with IH for years after that assignment, which was purely formal, a license being held by a wholly-owned subsidiary set up for that purpose, IH paid the bills, etc., and now Rossi claims they have no rights, and, here, specifically, his alleged failure to actually transfer the IP, essential to the core of the agreement, is to be without consequence, even though utterly necessary for IH to be able to raise the funds he is claiming they owed and didn't pay?

    Even if the argument were valid in some way -- it isn't -- there would then be estoppel. He took their money in exchange for specific consideration: the 1 MW plant ($1.5 million), full disclosure of the IP, and assistance in making working devices (($10 million), and continued to work with them into 2016.


    b. Count I Fails to State a Cause of Action for Breach of Contract

    ... the Defendants fail to allege
    that Plaintiffs did not comply with this provision. [to provide the IP] (DE:50, ¶¶93-99). In fact, rather than alleging that Plaintiffs have breached §3.2(b) of the License Agreement, because they cannot, Defendants merely suggest that one might conclude that Defendants’ failed attempts to replicate Plaintiffs work could be explained if Defendants were not provided all of the E-Cat IP.

    Hey, that's correct! The claim that Rossi did not provide the IP is an inference. It is based on a series of facts that are alleged, that create a suspicion that the IP transferred simply doesn't work, and that the appearances that it did work -- as in the Validation test -- may have been created fraudulently. Annesser goes on:


    Notwithstanding Defendants untenable and conclusory allegation that “only one of three conclusions can be drawn,” logic dictates that additional conclusions could just as easily be drawn from the same set of alleged facts which do not constitute a breach of the License Agreement by the Plaintiffs.

    "Just as easily" is conclusory, eh? The Rossi complaint here is that the statement is logically flawed. What if IH had said, instead, "We can reasonably conclude that one of three possibilities is true...."? IH is saying that looking at all the evidence, and they allege plenty, considering the effort that they put into attempting to make working devices per Rossi's instructions, no other conclusion is reasonable. And then this becomes a question of fact, which if it might be possible to establish by a best construction of what has been presented as evidence, cannot be dismissed.

    Annesser also brings in an irrelevant argument:


    Furthermore, despite Defendants’ allegation they have been unable to “generate measureable excess energy”, Defendants 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:50, ¶57, 58, 68).

    Whether or not other tests showed excess energy does not bear on the IH experience. It is possible that Rossi could establish at trial that others succeeded, as evidence that the IH failure was not his responsibility, but, again, that would be a factual issue. Rossi was obligated to transfer the IP to Industrial Heat. Perhaps he made those other tests work and the situation here was similar to what he claimed about Hydro Fusion: deliberate failure.

    ¶57 refers to the Validation Test, not a "third party" test in any way. That was positively deceptive. ¶58 is the "independent professors" test, the first report, done in Rossi's facility in Ferrara, Italy. ¶68 is the Lugano report. All these involved Rossi's participation. When IH refers to being unable to confirm heat, they mean independently, without Rossi participation in the actual testing.

    It is very clear that the essence of the Agreement was to enable Industrial Heat to make working devices, to be able to affirm to possible sublicensees and investors that the technology worked -- necessary to be able to raise the funds for an $89 million payment --, yet, remarkably, Rossi did not allege that he satisfied this essential condition in his Complaint. The Complaint is focused entirely on the "Guaranteed Performance Test," as if IP transfer were not relevant, and only the technical detail of an "ERV report" mattered.

    (And there was much opinion on Planet Rossi that this was open and shut: if the "ERV Report" was positive, IH had to pay, period.)

    I predict that this part of the Motion will fail completely.

  • Industrial Heat asserts that they haven't been able to produce any measurable excess heat utilizing the IP that was transferred.

    I would love to know about the true extent of their testing. My guess is that this will be be considered highly confidential. Here is a total hypothetical thought that may or may not have any validity -- just wild conjecture of one possibility.

    It seems to me that from a purely capitalistic business perspective, it would make sense for them to only perform "official" testing (the tests they would be willing to tell others about) specifically by the exact letter of the patents and papers Rossi supplied them. My gut feeling is that the experience required to replicate (do to all the factors involved) is not easily transferred via a patent document. Having such tests fail would be a good hedge in case they ever went to court. They could say that they never were able to replicate using the IP transferred. If Rossi had been totally open, honest, and convincing with the one year test (or whatever it was), these failed tests wouldn't have really mattered. But they suspected that they would not pay because of Rossi's erratic behavior or his lack of honesty, the failed test results would come in very handy.

    The smart thing to have done (although maybe not the most honest) would be to set up a research project in another lab that would be totally off the record. In the tests performed in this lab, they would actually go beyond the letter of the patents and any other documentation Rossi provided. By varying different parameters and running an extensive series of tests, they would be much more likely to figure out how to produce the effect. If these tests were successful, they could transfer the know how to the "official" project at a later date.

    Having an "official" set of test results and a non-official set of test results would be logical. This is similar to how some politicians operate.

    Again, I'm not saying they did the above. There is really no way of knowing. There are too many possibilities. They could have ran some quick tests and just gave up. That is equally or even more possible.

  • From the Second Amended Answer, etc., p. 52

    Rossi's motion:

    So as to (d), Rossi asserts:


    Notably, Defendant IPH has not alleged, nor can it, that Plaintiffs have undertaken any activity whatsoever in competition with Defendant IPH within the Defendants limited geographic territory.

    The IH Count is not asserted with specificity, but the Rossi statements could certainly raise concern that there has been a violation. As written, the non-compete agreement appears to be more restrictive than might have been the intention. However, there is also a right of first offer that may apply. The essence here is that Rossi is engaged in business, from his public statements, that might be in violation of the Agreement. My sense is that IH can assert this, based on the evidence they provided. They don't have to give more evidence than that at this point. "Within the ... limited geographic territory" is not the only issue.

    I was tempted to consider otherwise, but I predict that this will fail to be dismissed. It is possible that the Judge will require more specificity.

    As to (e), this was raised in detail in the Motion to Strike, and rejected there. The tax issue is raised as part of a general claim of Rossi inattentiveness to agreement provisions. That is, Count II alleges a series of violations of the agreement, showing a pattern of violations. If there was a failure to remain current with tax obligations, there was a violation; that it was later remedied, if it was, does not change that. While it might be minor, these violations required IH attention, creating a burden.

    There is an obvious irony here. IH is claiming damages for failure to handle patent applications properly, for technology that it is claiming does not work. This is common legal practice, claiming both sides. These are alternate claims, in fact. The patent issue asserts damage if the patents have value (which could license sale value). If they are worthless, IH may have been harmed in that way. Probably not both!

  • To be precise, it was said (second hand through Dewey, who apparently heard from the government inspectors) to be "something similar to a radiator."

    The Dewey Says quote was "IH has 3rd party proof that the "customer" side just contained a large radiator "

    There is also this classic Dewey quote " Dear lapdogs - the arguments are over. New data is in hand. Rossi warmed the place up with the equivalent heat output of twenty 1000 watt space heaters. He made a nice big year round Miami sauna bath. That sole device er.....radiator, on the JM Products side didn't even have to work that hard. A complete and absolute travesty. "

  • Abd,

    This is unrelated to LENR.

    I read about your health issues lately. I've been researching a very promising supplement called Nicotinamide Riboside. It increases levels of NAD+ which upregulates a number of different anti-aging genes, especially the Sirtulins. The substance NAD+ accumilates in muscle and the liver moreso than any other tissue type. Researchers think it could have a lot of potential for heart conditions. In addition, they think it could help with everything from PD, Alzheimers, osteoporosis, immune dysfunction, and a whole host of other disorders. I suggest you take a look.

  • @MrSelfSustain

    You are inching closer to my reasoning. I believe that they have. After spending well over $10 million, they aren't going to just throw in the towel. No, they would have their own engineers and facilities (as Dewey has admitted to). They would try to improve each test in an iterative manner. Then after achieving a positive result, they would file their own national and international patent applications naming one of their own as an inventor. They would deny that Rossi's IP ever worked, and do so loudly in PR statements and in answer to the lawsuit's complaint, and claim that they could never substantiate the technology using Rossi's IP, or were unable to do so using the information directly received from Rossi. They would do it in such a way as to lead others with an untrained eye to believe that there was absolutely nothing to Rossi's invention and that it is all bunk.

    This would rally not only those LENR supporters already skeptical of Rossi's claims to their side, but also the wrath of all cold fusion haters such as Mary Yugo. Then to shore up support of the community, they would start funding traditional non-commercially viable LENR projects and announce that they are hosting the next ICCF. I'll admit, it has been a masterful play.

  • @IH Fanboy,
    The radiator (looks like a condenser actually) can be seen in photos:

    1) outside the container, behind Fabiani, in the soldering photo from Rossi
    2) in the hall between the Customer area and the unit wall, LH side of the Customer wall photo, Exhibit 26

    I would like to a photo of it installed also.

  • IH Fan,

    That is plausible. However, I'm not sold that they would have never paid Rossi if he had been completely open and transparent with them from the start. Also, we don't really know how hard they tried to replicate. What you propose could be the case or they could have just quit. If they did not quit, then I totally agree they would have tested the technology in a methodical way. There are many variables involved, and they would want to document all of them. My thinking is that to just reproduce the effect would not have been too labor intensive (at most a month of testing non-stop with a handful of engineers/scientists) but the characterization of every single parameter would take years. If your theory is true -- I don't think we have the information to know one way or the other -- then they probably started this process as soon as Rossi transferred over his patents. There are too many replicators that have achieved very good results more or less just by chance on their first attempts (Parkhomov, Songsheng, N. Stepanov, Me356, and others) for IH to stand around with Rossi's IP (that they spent 20 plus million on) and not perform extensive testing that would only cost a couple hundred thousand dollars. Basically, they would have only needed one key scientist, a couple engineers, and a couple of recent college grads that could have been made to sign extensive NDAs. By now this "brain trust" (if it ever existed) could have figured everything out and be moving forward towards trying to use the knowledge to produce their first product. My guess is that if this hypothetical scenerio is true (again this is pure conjecture) they would be totally opposed to the rapid deployment of this technology in homes and small businesses. They would make up all kinds of safety arguments as to why it was only ready for select industries. By deploying it first only in China to reduce the emissions of the dirties coal burning electrical plants, they would be able to protect the overall renewable energy sector. They are highly connected to folks involved with solar power. The last thing they would want is LENR disrupting such a fast growing sector of the global economy!

    Rossi's philosophy, in my opinion, is all about rapidly deploying his technology on ALL scales. He wants industrial plants and products for homes and small businesses. This would totally obliterate the solar power industry and wind. Even before the technology started displacing energy produced by these other sources, nations and investors would start dropping all subsidies and funding of other renewable energy technologies. Their stocks would crash and the companies would go bankrupt.

    Again, I do not like conjecturing about Industrial Heat at this time since we have so little hard information. The reality of the situation could be much closer to what they claim than we think. However, what I'm certain of is that the E-Cat technology works and has been replicated multiple times. Even if Rossi was far less than honest about the test in Doral or it was mostly a scam (no customer, no connection with Johnson Matthey, no engineering director, no production of product, far less heat production than he claimed) it does not in no way negate the reality of the technology as a whole.

    I.H. shouldn't be made out to be a villain at this time. Although I don't think they are saintly, we don't know where on the bell curve of good vs. evil they reside. We also don't know where Rossi resides on that curve either. The truth about the test in Doral will tell us a LOT.

  • IH Fanboy wrote:

    Are you suggesting there is a law against saying a person is crazy? You are wrong about that.

    Rossi has claimed that I'm paid to attack him. That was libel. I'm not likely to do anything about it, but, hey, if he sues me, I would almost certainly counter-sue. I'd consider it an opportunity to have a boatload of fun and maybe to make some money. He has deeper pockets than I do, but I probably have better legal resources.

    In this case, by the way, "crazy" is more gentle than the rather obvious alternative, that he is a con artist and a fraud. Hey, is Krivit quaking in his boots over the possibility that Rossi would sue? I don't think so. What Krivit has written is far more ationable than anything I've written about Rossi.


    IH Fanboy wrote:

    It is obvious that IHFB doesn't understand the issue. What I wrote is not about what Rossi has, it is about the effect of his actions. filing the lawsuit basically tied him up for well over a year. He has practically no realistic hope of winning, again, even if the Rossi Effect is completely real. He is claiming other customers - and shot off his mouth about them after filing the suit, and IH did just use that against him. Rossi has no idea how to conduct himself sensibly; it got him put in jail before. I don't know whether or not he'll end up in prison this time, it's not impossible. And get this: even if his technology is real!!!

    This is called how to completely screw up your life while believing you are not only right, but the savior of the planet and children with cancer.


    Or, he filed it because he is crazy. Or because he is a nefarious crook who thought he could steal $89 million more.

    I know what he has: nothing. Bupkis. Zero. That is what his data shows. If he thinks he has something he is a lot stupider than I previously imagined.

    Crazy covers it. I've known people like this. Very smart, but something missing. We call it having a screw loose.

    (Consider the "crook" idea. To think he could get away with that scheme, the fake customer, all that, was crazy! Sane crook would have faded away with the millions he'd gotten.)

  • Shane D. wrote:
    Plus, if Rossi was not lying, he took the fuel charges out when Murray started getting too nosy and asking too many engineering questions.

    I think Rossi said he did that at the end of the test, which was long after Murray asked the questions listed in Exhibit 5.

    I think Murray memorialized (wrote up) the questions long after he first asked them.

    The questions in Exhibit 5 were provided to Penon March 25 or so. They were asked on the two-day visit at the end of the "test." I'm not clear on the exact timing; Rossi claimed to have removed the fuel on the last day of the test. and Murray was there maybe the next day and the day after that. From what I recall, it is not completely clear. (The IH countercomplaint has Penon leaving Florida in February, so how the Exhibit 5 writing was presented to him, I don't know.)

    (Memorialization is a standard legal term for taking a memory and writing it down. It is generally advised to do this as soon as possible after the events, or in this case, the conversation. Testimony is stronger if the subject has been memorlalized. Notes are a form of memorialization. Without the writing, memory can be quite plastic.)