Posts by MikeDunford

Quote from [email protected]

 

I think Rossi's bloviating blog entries could be admissible as evidence. It just takes one witness to say that that's what Rossi said on his blog. Then all of his blog stuff would be admissible. I'm surprised IH's lawyers haven't already angled in that direction.

 

Generally speaking, statements made by the opposing lawsuit are not considered hearsay. So IH can probably get Rossi's blog statements in fairly easily when Rossi is on the stand, by asking him about the statements.

However, the statements in question must be relevant - which means that they have to have a tendency to show that a fact that is of consequence to the case is more (or less) likely to be true. So not all of the bloviating is likely to be relevant.

Quote from Eric Walker

woodworker and MikeDunford : consider the possibility that Rossi lied to JD about the existence of a very large metal heat exchanger that was supposedly on the mezzanine floor of the Doral warehouse while being questioned during the pre-trial deposition. (1) What are the chances of this becoming apparent under cross examination during the trial? (2) What are the possible consequences of Rossi having lied in the deposition, in the event that this is somehow shown to be the case?

1: The chances of it becoming apparent at all depend on how big an issue defence counsel want to make of it. From what I've seen, they have a real chance. Whether it becomes apparent on cross or at some other time (like closing arguments, when the attorneys explain what the evidence means) depends on many factors so it's hard to say.

2: As a practical matter, there will be no consequences other than the immediate effect on the jury.

In theory, all lies under oath are perjury, so criminal charges could be brought. In practice, they usually won't be brought. It's a very difficult crime to prove, and prosecutors generally don't find it to be a worthwhile use of time and other resources.

Quote from Rends

NO, https://en.wikipedia.org/wiki/Intellectual_property is a crime all around the globe!

It may be that language is at issue here. I had not realised that before posting my previous attempt, so I will try one more time, using simpler language.

Not all things that violate the law are crimes. Crimes are specifically offenses for which the state can punish you. There are other things that violate the law, but are not crimes. These are matters which are settled through the courts, when the injured person sues the person who caused the harm. They are private wrongs, not public wrongs.

Almost all violations of intellectual property rights are handled as private wrongs, not as crimes.

It is technically correct that there are some situations when an intellectual property violation could be a crime. However, these laws only cover some situtations. Even then, they are very rarely used. Almost always, an intellectual property violation is handled as a private wrong.

Quote from Rends

I am from Europe like all the professors named in the Lugano Report and this is our law:

https://en.wikipedia.org/wiki/…hts_of_the_European_Union

You can be from anywhere you want. You're still wrong.

And, frankly, all you accomplished by posting a Wikipedia link to the Charter at me was to further convince me that you don't know what you are talking about.

First, and let's just clear this out of the way at the start, the Charter of Fundamental Rights doesn't help you very much here. Article 17(2) is the only provision that deals with intellectual property, and if I recall correctly (I might be off by a couple of words, and honestly can't be bothered to look it up at the moment) 17(2) consists of a single sentence that says something to the effect of "intellectual property rights shall be protected." It doesn't specify what form that protection need to take, and there are lots of rights that are routinely protected through civil litigation rather than criminal prosecution.

Second, while there have been some attempts to harmonize IP law, the vast bulk of substantive IP law remains within the competence of the member states. That is likely to change to an extent for patent law when the European Patent Court becomes fully operational, but that is yet to occur.

Third, although there was an attempt at a Directive on criminal penalties for IP offences about ten years ago, that attempt ultimately failed. No attempt has been made since, and none is on the horizon.

Fourth, that directive was targeted only at wilfull counterfeiting on a commercial scale.

Fifth, that directive was targeted only at copyright and trademark infringement; patents would not have been affected.

Sixth, let me say again, that directive failed utterly.

Seventh, there genuinely is a broad international consensus that criminal penalties should be reserved for only large scale, wilfull counterfeiting. Or at least that's more or less what the European Intellectual Property Law text (authored by Annette Kur and Thomas Dreiser; ISBN 978-1-84844-880-3) says on one of the 6 pages in the entire 548-page book that are devoted to the topic of criminal sanctions in IP law in Europe.

Eighth, my textbook on English IP law (Cornish, Llewelyn, & Alpin) says similar things in the 4 numbered paragraphs that this 948-page book devotes to criminal penalties in IP law.

Ninth, criminal prosecutions for IP violations are so rare in the US that they're not taught in either criminal law or IP law.

Tenth - and I could go on, but I think more should be unnecessary - I have formal legal training both in the US and England.

Quote from oldguy

Do you think that Rossi did transfer the technology when he spent year or so in NC "teaching" the IP to IH? I don't think that IH would say that he fully transferred the tech and that they spent money trying many ways. If it was transferred, don't you think that they would be using it and commercializing now?

I think that the agreement was so poorly conceived that if Rossi's thing worked during the tests only because of some complete fluke and Rossi handed over the instructions on how to build them, he performed fully and gets the whole amount even if nobody on the planet ever figures out how to replicate the original result.

As to whether or not Rossi's device actually worked (and, by extension, whether there was any genuine IP to transfer) - at the moment, that doesn't strike me as very likely.

Quote from Rends

NO!

https://en.wikipedia.org/wiki/Intellectual_property

I stand by what I said. There are criminal statutes on the books in quite a few places, but:

(1) Even where there are criminal statutes in place, they generally only criminalize infringement in limited circumstances. (Generally, it has to be intentional infringement for commercial gain.)

(2) Even where there is a criminal statute in place and circumstances that could lead to criminal prosecution, actual prosecution is the exception, not the norm. The norm is for the matter to be handled through civil infringement proceedings.

Basically, if you're running a major operation that involves deliberately making counterfeit goods (not just knock-offs, but true counterfeits), the chances of criminal penalties are low.

And from everything I've seen in the facts of this case so far (which is admittedly incomplete), and based on my knowledge of US law, I'm not seeing any evidence of anything that even looks like a criminal intellectual property offence.

Quote from oldguy

If the patents are to be valid they must teach someone skilled in the art how to make them work. If the patents are to be valid or if the IP was to be truly transferred as required by the agreement, there should be no need to contact the inventor.

The license specified the IP to be transferred. Most of the list involved know-how or trade secrets rather than patents. My initial read was that the provision was drafted to basically require Rossi to hand over instructions, but not background research, not information on past failures, not anything on why the device worked, etc. (But there was a provision about hiring Rossi as chief scientist.)

That's relevant, I think, because it does lend a very limited amount of weight to the argument that IH's failures may have been due to failing to exactly follow the directions.

Quote from Rends

Using someones intellectual property without permission is illegal and a crime everywhere in the civilized world!

It's quite rare, in the civilized world, for IP infringement to be treated as a crime unless there are exceptional circumstances. It's more typically treated as a matter for private litigation.

Quote from THHuxleynew

 

Mike

Performance. The license agreement states that Rossi must transfer IP to Rossi after the $10M payment and (chronologically, given the timeframe) well before the GPT. There is a dispute over whether he has done this - IH claim that his devices never worked when tested by him (though initial results were encouraging using test setups mandated by Rossi). I think perhaps whether the IH devices provided by Rossi ever actually worked might be relevant to this since if they in fact do not either Rossi did not transfer the IP, or his devices do not work. You might perhaps argue that the GPT device is the single one that does, miraculously, work, and that IH have the IP, it is just that they have not yet hit upon another such occasional working device. That seems a difficult argument to sustain.

 

Yeah, I forgot about the counterclaim. IH are arguing that their inability to get the thing to work suggests that Rossi didn't turn over all the IP. There are enough alternate explanations (incompetence, failure to exactly match, the entire Rossi device is a rainbow-fart powered fantasy, etc) that it's a stretch to say that it proves that Rossi didn't turn over everything, but it's relevant to that.

Quote from [email protected]

There are 2 things that I do not understand about this inquiry.

2) If the Penon report is so irrefutable proof of fraud and it has been entered as evidence in the case, why wasn't the case summarily dismissed in the motion for summary judgement?

Because assessing the weight, meaning, or truthfulness of contested evidence isn't done at summary judgment.

Basically, Rossi submitted the Penon report as evidence that certain contractual conditions were met. IH has produced other evidence which (they argue) suggests that the Penon report was either extremely flawed or entirely fabricated, and that the contractual conditions were therefore not met. All the judge can do at summary judgment is decide if: (a) the results stated in the Penon report are material facts in this case (they are, because they determine if contractual conditions at issue in the case were met); (b) the Penon report is evidence supporting those facts (it is, because the evidence has to be taken at face value at the summary judgment stage); and (c) if the IH evidence, taken at face value, suggests that the Penon report is erroneous or fraudulent (it does).

At that point, it's clear that the results stated in the Penon report are disputed material facts. Disputed material facts don't (normally) get dealt with at summary judgment because it's not the role of the judge to decide what the facts actually are. That's the job of the jury; that issue must go to trial.

Quote from IH Fanboy

 

@Jed,

Any argument about the violation of conservation of energy is an ignorant one among the those in the LENR community. Once IH chose to go down that path, they lost credibility among those who follow LENR (except apparently with you). There is no violation of conservation of energy with LENR.

 

(Apologies in advance if I'm missing sarcasm/joking because of unfamiliarity with forum and participants.)

I read the Smith report. It strikes me (a lawyer w/ an undergrad degree in Zoology) as well-written and compelling.

Smith did not argue that conservation of energy makes LENR impossible because energy cannot be created. His argument was the reverse; that the amount of energy claimed to have been created by this device could not have been destroyed (because thermodynamics) but there is no record or evidence of it being dissipated in any way.

What he argued was that if Rossi's device produced heat, conservation of energy mandates that the heat had to go somewhere. There is no evidence that the warehouse was equipped to send the heat produced anywhere or put it to any use - no huge vent fan, no rooftop cooling tower, no evidence of claimed heat exchanger, water records not showing sufficient city water inflow to account for cooling, no record of building reaching near-boiling-point temperatures incompatible with human life, no use by customer, nothing.

Therefore, either heat energy was being destroyed - which would violate thermodynamics - or the heat energy claimed wasn't created in the first place.

Quote from IH Fanboy

 

@Jed,

You might be right that IH has irrefutable tests showing that the e-Cat doesn't work. But as you acknowledge, they're not on the record. And I happen to suspect that if they really had them, they would have put them on the record in this case. Instead, we get lots of confirmation from IH on the record that the e-Cat in fact does work, upwards of COP of 9.

 

I'm not sure how relevant tests showing that the e-Cat doesn't work would be to this case, so I'm not sure I would expect to find such tests in the record in this case, or necessarily see them produced during the trial. ¹

There are a few bells and whistles (like the fraudulent inducement claims) thrown in, but the core of this dispute is a contract dispute.² If you want to win a contract dispute, there are four things you have to prove:

1: Formation. You and the other guy had a contract. ³

2: Performance. You did what you were supposed to do under the contract.

3: Breach. The other guy didn't do what he was supposed to. ⁴

4: Damage. You were hurt because of the breach.

If you prove all four of those things, you win. If you fail to prove any of them, you lose. ⁵ I'm not sure that any independent test IH did (or did not do) would be relevant to prove any of those four elements. The license made no provisions for testing outside the two specified tests. If the e-Cat worked in those two tests, IH probably has to pay Rossi - no matter how many other times it failed. Independent tests might be relevant as additional proof that Rossi faked results, but that's about the only reason I can think of that they'd come in. There are possible reasons (like preserving trade secrets, not opening people up to cross-examination, etc) that IH might want to leave them out. And there's a substantial amount of other evidence that there was something hinky going on with the testing.

So I don't think it's reasonable to assume that such test results would definitely be part of the record if they existed.

1: I'm taking no position on whether or not I think there were tests.

2: The contract in this case is the IP license; all licenses are contracts.

3: This is the element where the dueling fraud claims come in. If you can prove that you only agreed to the deal because of the other guy's fraudulent inducements, you might have the option to void the contract.

4: The failure has to be substantial, not merely technical. So I don't think IH necessarily wins just because the 24-hour test was actually run for only 23.5 hours.

5: Technically, you could be awarded "nominal damages" if you show that you were harmed but can't prove an actual amount of harm, but you still have to show harm.

Quote from Eric Walker

 

Your point about the ROI on attempts at influencing a jury by posting stuff on the Internet is very well taken. But just to quibble with the premise, that the parties in this case can be expected to behave rationally. In matter of fact, I have come to expect Rossi not to behave rationally. That said, I myself have no reason to suspect that this was a planted suggestion.

 

Fair point. If we could power the world with human stupidity, there'd be no need for LENR.

Quote from Eric Walker

There has been a complaint that the E-Cat World hacking accusation was planted here in the hopes that it would influence members of the jury who might ignore the instruction not go research this story on the Internet. LENR Forum have no way of verifying whether the accusation is true or not, but knowing a little about Rionrlty, I have no reason to doubt his sincerity in passing it along. If the ECW hacking suggestion feels like something planted to you, you'll need to be content to address the obvious weakness of it: namely that it's a Sifferkoll-like connecting of the dots that has little in the way of fact to support it at this point.

Hacking a forum in the hopes of influencing jurors strikes me as something that is a lot of work for very little likely gain. In order to be influenced, a juror would (1) have to care enough about cold fusion and LNER to be tempted to disregard the court's instructions; (2) actually disregard the court's instructions and conduct research; (3) find the relevant sites; (4) learn about the (alleged) hacking while reading the sites; and (5) be influenced in some direction as a result of that reading.

The odds that kind of strategy working strike me as, to put it mildly, low.

Quote from sigmoidal

 

From my look of the evidence on the docket, Rossi is basing his claims on his own testimony (from deposition) and he didn't support the strong initial claims in the suit. Which I think is is because they don't have much evidence to back that up (regarding IH being essentially Cherokee) , and so they've shifted more to another weak argument that IH didn't have the money to pay and never intended to. But given the counter-evidence submitted by IH showing that they could have easily raised the money if Rossi actually had anything that worked, I think this is also weak (and of course they paid the $11.5M for the E-Cat device and license for IP, which isn't exactly chump change).

But it won't be too long before we get an actual verdict, so I'm content to wait for that.

 

It's a jury trial, and juries don't (or at least aren't supposed to) just look at who has quantitatively more evidence. They also decide who to believe when stories conflict, and how much weight to give different pieces of evidence when they decide what really happened. And they come into the case (or at least are supposed to) as a blank slate, with no knowledge of the events or people involved.

And while I'm still getting up to speed on the case and don't have a great deal of knowledge about the people involved, I'm going to go out on a limb and say that I'd expect Rossi to be a pretty believable-sounding guy. He managed to persuade IH to invest, managed to persuade them to allow the change to the initial test, apparently managed to persuade them to allow the longer test to take place at a very different location from the original plan, and so on. And IH had a hundred million reasons to be skeptical about Rossi's claims.

I don't know. Maybe he'll be a terrible witness. Maybe the defendants will be able to impeach him. (Lord knows there's enough material to do it with.) But it may turn out that the jury believes him more than they believe the IH crowd.

Quote from woodworker

 

Mike: FYI, for many of the rossi supporters, I am not a real lawyer.

"Thanks for your comment on this, and in response to other comments, it's great having a real lawyer weighing in."

 

Which mildly amuses me -

I didn't do an intro, and don't have time now. But it should be taken as a given that woodworker is more experienced as a lawyer than I ever will be. Literally - I went to law school recently, and mid-life. I'm licensed, but I'm not in active practice and have no current plans of entering practice. I'm a researcher, and (hopefully) an early-career legal academic. In other words, pretty good with the book learning, not so much with the real-world experience.

Quote from JedRothwell

 

This trial is scheduled to last two weeks.

 

According to the voir dire questions submitted by plaintiffs, it's going to last 5 weeks; according to the questions submitted by the defendants, it's going to last 3-4 weeks. The only place where I've seen 2 weeks listed was in some scheduling documents that stated that the trial is scheduled to commence during a 2-week trial calendar - but that's a scheduling unit that courts use, not a time estimate for a specific case.

But let's assume 2 weeks. That might reduce the chance of baby-splitting versus a 3 to 4-week case, but not by much.

Seriously, don't underestimate the possibility of something like that happening. From my inexpert perspective, it basically looks like everyone in the case is claiming that everyone else in the case was lying to them. Add in testimony about cold fusion (the plaintiffs use that term in their proposed voir dire questionnaire, so it will probably come up somewhere). Add to that the demands that a long jury trial makes on the lives of the jurors, and the disruption that it can cause to their lives.

Picture this: you're sitting at your living room table at home, surrounded by paperwork, trying to prep for an IRS audit. And your pre-pubescent children come in with a squabble that involves - you're not totally sure, really, even after the explanations, but there's a lot of who is the bigger poopy-head and who called who a poopy-head first involved. If all the lawyers aren't careful, that's easily how the jury could wind up feeling by the end of the trial.

Quote from sigmoidal

We DO know: It could not possibly be 'bait and switch', because the signed agreement (you know, the one on the Docket that Rossi has his signature on), was with IH (not Cherokee).

Or are you arguing that Rossi (and his lawyer(s)) didn't read the $100.5M contract when he signed it and that's how IH 'tricked' him into signing it, because they imagined that it was actually Cherokee?

Rossi's allegation is essentially that the defendants fraudulently induced him to enter the contract by representing that IH was for all purposes Cherokee. There is apparently some evidence to support that count, since IH did not receive summary judgment on this claim. I currently have no view on the strength of that evidence or the likelihood that Rossi will win on the count at trial.

Quote from woodworker

IHFB: if you read my posts about Rossi, you would have noted that I focus on his business practices that relate to the current venture, e.g., the fake company, the fake invoices, the heat exchanger, etc., and those are clearly relevant to whether or not he satisfied the conditions precedent to IH's obligation to pay the additional $89 million. I have not focused on his alleged bad prior acts. However, I do think that there is a difference between his alleged bad prior acts / non-IH related acts and IH/Cherokee alleged prior bad acts, which I will discuss below, and why I think the court may, I stress may, allow some evidence of Rossi's alleged prior/non-IH bad acts to be admissible.

...

If you carefully read my posts, you would have noticed that I didn't make any predictions on IH's counter-claims, primarily because I haven't focused on it as much and haven't read the related documents. But that doesn't mean that I think that Cherokee's/IH's alleged prior bad acts would be admissible against IH on the counter-claim. Cherokee is/may be an investor, but I doubt that the court would find that any alleged bad acts by Cherokee on completely unrelated business transactions, especially where there has not been a judicial finding of wrongdoing, would be admissible against IH here. Secondly, IH's counter-claim is essentially that Rossi fraudulently induced / defrauded them re: the initial $10.5 million. Here the burden of proof is on IH, not Rossi. But I don't see how IH's other business activities are relevant to whether or not Rossi defrauded them, other than to possibly show IH knew of Rossi's fraud and went ahead anyway.

However, I can see the court admitting as evidence Rossi's alleged prior bad acts, especially how and why he caused the termination of a prior agreement in order to get a better deal. I still don't have a good sense of how the counter-claim plays out. I can easily see a jury saying split the baby, i.e., Rossi loses on the principal claim and IH loses on the counter-claim.

Would love to hear Mike Dunford's thoughts. Full disclosure, I have personally met and broken bread with Mike.

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You're almost certainly far more familiar with the facts and the docket than I am. I just got roped into this recently, after getting into a mild spat with abd regarding the importance of understanding the underlying substantive law if one wants to credibly comment on rulings in the case, and I'm still getting slowly up to speed on the facts of the case in my very limited free time.

That said -

1: If an average jury has to sit through a monthlong trial where the court case involves non-mainstream science combined with what look to be somewhat strange business practices on all sides, I don't think it's unreasonable to suspect that there might be some baby splitting.

2: As far as Rossi's prior bad acts goes, they're probably not relevant to the contract claims, but the fraudulent inducement might be another matter. But they're also potentially a double-edged sword (IMO). If IH was aware of Rossi's reputation, a jury can be induced to wonder why IH first went ahead with the deal and then was so lax in allowing the modifications to the 23.5 hour test. And if IH was not aware, why weren't they.

But that's based on speculation without having carefully reviewed the counterclaim. I'll try to find time to do that in more detail tomorrow.

Quote from woodworker

Mike, good to see you here. One thing, IIRC the transcripts will only be on PACER if someone else ordered them first, e.g., a party seeking an appeal. I would also quibble that you can't always get two out of three for daily reports. You can get good and fast, but I don't see cheap and fast or cheap and good as an option for daily's.

It's a jury trial in a case where there have apparently already been multi-million billings, so I was guessing that there's a decent chance that Jones Day will be getting at least daily, if not realtime. But, yeah, cheap and fast isn't on the agenda for a daily, and cheap and good will get you a transcript but not a daily.