Lenr Forum on Lomax v. WMF


Zeus46, a LENR Forum troll we have seen quoted by the Smith brothers, wrote this mess on the Forum, Jul 30th 2019


The easily-bored polymath, alleged *********-enabler (removed at request of lawyer), and budding vexatious litigant, Abd Ul-Rahman Lomax has been a little bit too quiet recently. Clearly a storm of some description had to be brewing…

The lawsuit was filed in February. I have never filed a lawsuit before. and Lomax v. does not qualify as vexatious litigation, though some defendants might not like it. Does anyone like being sued?

Capitalising on time spent indulging in the legal minutae/demented brinksmanship of the ‘Damp-squib Lawsuit of the Year’ (Darden v Rossi)…. And completely failing to acknolwedge the maxim “A man who is his own lawyer, has a fool for client”

Of course, this is being repeated by trolls in many places. The maxim is often attributed to Lincoln, possibly incorrectly. It’s very old, and was apparently originally about all kinds of counsel, referring to the importance (even for lawyers) of obtaining independent advice.

… Adb has fired off a $6,000,000 S.L.A.P.P. suit at his two greatest nemeses – The Wikimedia Foundation – And some 16-year-old kid from the UK. (…And his…”twin brother”…:rolleyes:)

$2 million is the nominal figure. Should I amend that to $6 million? The WMF is not my “greatest nemesis” but the Smith brothers became consistent and persistent harassers, and to understand that would require understanding a complex history.

The twins are 29 years old this year, not 16. One is already being sued in the U.K., actually for accusing an academic of being, variously, a “child rape apologist” and a “pedophile,” and so what Zeus would have in mind is “pedophile enabler,” which even they did not allege, they only claimed I defended this fellow. But what I did was to point out that the evidence asserted was quoted out of context and there is no credible evidence for the claims. This all happened later than the events the lawsuit is about.

Notwithstanding the valid question as to whether the jurisdiction of Massachusetts Court extends to whatever grubby part of the English ‘midlands’ the petulant oik hails from, the young pork pie muncher has already engaged an equally high-powered team of lawyers as Abd has. – Apparent to all, when they dismissed the complaint as merely “a Lolsuit”.

There are possible issues of jurisdiction, but I was filing against the WMF and it was strange to not make claims against those whose conspiracy to defame (civil conspiracy, it’s a thing) was the cause of the WMF action. They have not yet been served, there are some hoops to jump through.

The heinous tort committed by the Wikifiddlers appears to be their public list of shame, doxxing and pillorying those less fortunate individuals, who can’t help but get themselves globally banned from all WikiMedia sites for perpetuity. (Or untill they register a sock account, at least).

“Heinous tort” has not been alleged. Just defamation.

See, as a service provider, the WMF has immunity from Section 230 of the Communications Decency Act for content provided by others, and they may also, the courts have generally interpreted, ban users for any or no reason. However, their policies make it clear that they do not ban except for serious risk to the community represented by repeated harmful behaviors, so the list has indeed been called the “wall of shame.” That is content that they provided, which removes their immunity.

Not thrilled at being on the recieving end of a $6,000,000 (plus damages and fines to be determined) doxxing lawsuit from the Doxxer-in-chief himself, the Wikimedia Foundation has employed the eye-wateringly expensive services of non other than Jones Day.

Originally $200,000 when I first spoke with Jones Day. Before that, the WMF refused all communication. Clue: want to get sued? Refuse to communicate with someone who has a complaint.

(Presumably Abd is gambling on a risky “last minute settlement” gambit, as seen employed by Jones Day up-close and in-person, thanks to his previous junket to the “Sunshine State”).

Sane people settle ASAP, ordinarily. Jones Day did not “employ” that “gambit,” they had been seeking settlement all along, always refused by Rossi. So the “last minute” shift, I have speculated, was the work of Rossi’s most recently retained attorney, Lukacs, settlement was his specialty, and I suspect he clued Rossi in as to just how much he could lose.

I’m not gambling. I’m simply standing up for what I think possible, and trusting the outcome.

Hopefully the overpaid Harvard Law graduate dealing with this doesn’t spend a few billable hours discovering that Abd maintains an uncannily similar ‘Hall of Shame’ on his own website. 8|:D (Listing the persona-non-grata of this very forum, no less)

Where is that list, and who is “persona non grata,” that is, who is exiled or rejected? There is a page where I listed some banned users on LF, which included me. This does not remotely resemble what the WMF has. The WMF first started banning users as a child protection policy, so the earliest office-banned users were alleged pedophiles, or, more accurately, were being disruptively accused of such, true or not. (And Wikipedia was being accused of enabling them.)

As is becoming de-rigeur these days, a go-fund.me account has been set up to fund this venture. Zero $ has been raised so far, so donations are not just encouraged – but advised… as it would probably be good for him to talk to a lawyer at some point.

Well, thanks. In fact, zero is the figure for the GoFundMe account. I have already been covered for my filing costs and a little more. To talk to defamation specialists will cost a minimum of $250 for probably a half-hour consult. The fellow suing that Smith brother in the U.K. had to come up with about 5,000 Euros to get that started. With no hope of recovery of that, as the only pot the fellow has to piss in belongs to his parents, where he lives.

And its probably best that the lawyer isn’t one from Jones Day, presenting him with an outsized costs claim.

Oh, they have certainly advised me that my suit has no chance, forget about it, I’m wasting my time, but . . . that is not as my lawyer! Jones Day would not take a conflicting case, I’m sure. The GoFundMe is seeking $200,000, which could be what it would take to prosecute this case professionally. Maybe. Maybe the WMF will smell that coffee and seriously negotiate a settlement.

WMF strategy at this point, I suspect, is to see if the case survives a motion to dismiss. If it does, it goes into discovery and their costs begin to skyrocket.

Zeus46 added a comment:

WikiMedia’s latest motion to dismiss argues: “The truth cannot defame, and it’s true you’re banned” – and – “you mention your banning so often on your own website, that you can’t be all that bothered about it”.

That is two separate issues. The first is a legal argument, commonly asserted as a defense against a defamation claim, that the published statement was true. A statement can include what the statement reasonably implies, and a WMF implies very bad behavior. Secondly, a true statement can be defamation in Massachusetts, and this has been tested in the First Circuit, with Noonan v. Staples, the first case and the second case.

The second statement was dicta, legally irrelevant. Defamation is not excused by the target writing about it at a later date. There are a number of comments like that in the Motion to Dismiss. That I increased the claim from $200,000 to $2 million is moot.

I have until August 9 to file a Memorandum in Oppostion to the Motion to Dismiss. I expect to meet that deadline. It has already been drafted, I’m just reviewing it.

Now, about “fool for a client.” It was utterly impractical for me to obtain a lawyer to file this. Lawyers do not take defamation suits on contingency, I’m told. If a lawyer is willing to consult, I’m open to it. Given that, it was either file pro se or not file, and I was concerned about a possible statute of limitations issue. So I filed a simple pro se form the court provides.

That can be amended as things get serious. I was planning on asking, in fact, for permission to file a Second Amended Complaint, but realized that it could be better to see how the Motion to Dismiss flies, to see what the court considers necessary. That could be months away.

I have had two phone calls with the WMF, a total of two hours, with two lawyers, plus they wrote two Motions to Dismiss. Jones Day apparently bills at about $500 per hour.

I proposed a settlement concept that would be far less expensive for them than what they are doing. I assume that the WMF is calling the shots, and is concerned about precedent. I.e., if some user can sue them in federal court in another state, bypassing the Terms of Use, as appears possible here, they could have quite a bit of difficulty. My sense is that they are likely to change policies out of this.

Meanwhile the complaints that led to the ban were clearly a conspiracy to harm and defame, and the ban that ensued has frequently been used as “proof” against my reputation, including in a mail to one of my children. The Smith brothers are vicious and well-known for it. The motive was revenge for documenting impersonation socking-to-defame on Wikipedia (of someone else, not me). They threatened what they then did, through “private complaints to administrators.” They sucked others into the plan, who may not realize what they assisted. Or they do. I trust that the truth will come out in discovery.

I have very little to lose here except time, and I’m learning, and I consider learning to be of high value. Yes, as a non-lawyer, I will make mistakes, but I’ve also read a lot of case law, including observing the mistakes made by pro se litigants. Most are avoidable, though not all. My task at this point is, again, to survive dismissal. At that point it all gets much more serious. At that point I might be in a better position to raise funds, and as well, the WMF may be more motivated to actually investigate what happened, instead of assuming that they could not possibly have made a mistake.

We are getting around

Some posts on Gender Desk, a blog “Tracking Wikipedia … so the barbarians don’t win”

(woman in hijab with partial face veil, middle finger raised in defiance.
Objectify this. Allahu akbar. Source: VERVE:She said, license unknown

Abd files a lawsuit
APRIL 21, 2019

Nice, friendly, more knowledgeable — by far — than most, but the situation is complex.

Two commenters were probably defendants.

“Robert” could be Darryl L. Smith, the one whose impersonation socking caused the entire mess with the WikiMedia Foundation. His comment is highly deceptive, as usual, it is certainly the Smith party line. The current Amended Complaint explains some of this, but Darryl’s real issue with me is that I exposed what he had done, which is called “picking fights.” I typically create one account when I participate, and if I am banned (which does happen sometimes), I consider that site owners have the right, and don’t keep creating accounts. Exceptions have been quite rare and for very limited purpose. Darryl and his brother Oliver have created thousands of accounts, pursuing their attack plans.

And then his brother shows up, using his real name, Oliver D. Smith.

It’s a lolsuit. At least one of the defendants he lists doesn’t even exist and another is wrongly listed. I’m also listed for no reason.

There is clear evidence for “existence” of every defendant. Yet there have been so many lies and deceptions around the activities of the Smith brothers that it’s difficult to be sure about anything.

How would Smith know what he claims? This is the apparent fact: he and his brother know who complained, and there is a defendant named where evidence of participation in the conspiracy is thin, so he might be referring to that as “wrongful.” But one may name a defendant in a lawsuit, or even in a “lolsuit,” based on suspicion if there is any evidence at all, and there is.

As to not existing at all, there is a defendant called “Max,” who wrote about being a complainant to the WMF, over a year ago. Recently an anonymous user on the CFC wiki claimed to be this person and confessed his role (and then commented more as Max). Max was then threatened with harm. Does “Max” exist? Or is this yet another impersonation in the smoke screens laid down by the Smiths? Again, I don’t care. Max is on the list unless he decides to help clean up the mess he helped make. And if he doesn’t exist, I will have some difficulty serving him, right?

As to Oliver being listed for “no reason,” he is either brain-dead or lying. He was one of the complainants leading to the WMF ban. He bragged about it. 

And then, on Gender Desk:

Oliver D. Smith JULY 17, 2019 AT 12:39 AM

lol. The deletion of what you call the “parapsychology resource” had nothing with attacking academic freedom but the fact they’re pseudoscience. The person who wrote that junk who doesn’t want to be named isn’t even an academic (as you know). And Wikiversity deleted it for being pseudoscience.

They had no idea what they were doing.  Wikiversity hosts “educational resources,” which can study anything, excepting only certain illegal material. “Pseudoscience” was never before a deletion reason on Wikiversity, and there is, of course, a Wikipedia article on parapsychology. Parapsychology is explicitly a science, quite the same science as was involved with the founding of CSICOP, “The Committee for Scientific Investigation of Claims of the Paranormal.”

Many “scientists” — in what fields? — imagine that parapsychology involves a “belief” in some interpretation of claims.

The Wikiversity resource was rigorously neutral, it had been challenged and was confirmed by an administrator there. But there was an occasional attack on it, by those who it or part of it deleted. That was an attack on academic freedom, a fascist prohibition of the study of “forbidden topics.”

Compared to “normal disruption” on Wikipedia, this was practically trivial.

“The person” referred to was the collector of one subpage, an annotated list of sources, not the whole resource. And he may have realized that study of parapsychology (and “psychic phenomena”) is not necessary good for him. This is completely irrelevant, and that work still exists (I rescued the deleted material) and he has not asked for it to be deleted.

Wikiversity is not only for academics. It’s a public wiki, where people may study any topic they choose. That is, it was that until the Smiths attacked, having recruited some Wikipedians to kill the one place in the WMF family where there was genuine academic freedom (though Wikibooks could be close, and, in fact, Wikiversity was an offshoot of Wikibooks)..

Oliver D. Smith JULY 17, 2019 AT 12:32 AM

The defendants (all of them) he lists have said Lomax is lying and that’s not at all what happened. Obviously though he disagrees and has his own view of events. All I can say is take what Lomax says with a pinch of salt.

Again, how does Oliver know this? It’s obvious and there is plenty of evidence (quite enough to take this into discovery and trial), these people communicated and coordinated off-wiki.

“Lomax is lying” is not a statement with any specificity. Oliver has been saying this for more than a year, almost never pointing to any actual statements. It’s just a big blob of mud thrown. I have made a series of statements in the Amended Complaint (and it should get even clearer in the Second Amended Complaint, which is planned), and each of those is factually based, plus there are interpretations based on “reasonable suspicion.” To survive a motion to dismiss, the suspicion must be plausible. I affirm, in filing such a complaint, that everything in it is true “on information and belief.” What are Oliver’s statements?

He has lied over and over, and this has been covered many times and there may even be a reference to one of them here. For quite some time he claimed that all the disruption on Wikipedia, Wikiversity, and Meta was not him, it was his brother. He confirmed other aspects of the story as it was developing. And then he wrote that it had all been a lie, it was all him. And then he wrote something like maybe it was and maybe it wasn’t.

So sometimes he claims that his brother doesn’t exist, or if he does exist, he has nothing to do with the wikis. It is radically implausible, given the very obvious personality differences, but we will find out. What I care about most is that the truth emerges. And I trust the truth more than I trust myself.

(He was realizing that the heat was being turned up on his brother, who was far less well-known, and it is possible that his brother was being paid, that was one of the stories based on statements made by socks apparently Darryl. Since Oliver is on the dole in the U.K, living with parents, he would be taking the heat on himself as “judgment proof.” So that’s a motive to lie. Reality will come out, it has a way of doing that. There is a brother, it’s called “public records.” And this is no longer a wiki game, where “outing” is BAD. It is real life, where it can be necessary to name names.

Meanwhile, Oliver is being sued for defamation in the United Kingdom, and the case appears to be pretty much open and shut. He called someone who is not a pedophile a “pedophile.” He toned it down in some presentations to “pedophile defender” or “child rape apologist,” when his target was neither. And because I pointed this out, I was also called a “pedophile defender” or the like.

“No reason”? Besides being blocked as many accounts on Wikipedia, Oliver is now also formally banned (as many accounts) on RationalWiki, has many, many blocked accounts on Encyclopedia Dramatica, and many thowaway accounts on Reddit that appear to be him, from arguments, they either simply disappear or show up as [deleted], which could mean “blocked.” (I am no longer blocked on ED, that was transient). I’m not socking anywhere, though there are impersonations, one of their favorite tactics.

To my knowledge, the only defendant who has openly denied the charges in the lawsuit is Oliver. None of the others have commented publicly. So unless he is completely lying (not impossible!), he is in private communication with them. [Since this was written, JzG has made statements.]

And finally, a comment from Gender Desk herself (assuming a pronoun, if I may):

genderdesk JULY 18, 2019 AT 12:16 AM

As far as I can tell, this is about Rational Wiki and the Skeptics, and started out as a content dispute over whether pseudoscience and “original research” should be included in certain areas of Wikimedia projects.

What this was originally about and what it became are not the same.

Originally, this was not about RationalWiki at all. Nor was it really about “the skeptics,” though Darryl Smith presents himself as a skeptic. It was about a very personal attack on a student of parapsychology, who had been invited by me to work on the topic on Wikiversity, because I knew he was interested (This was partly to distract him from socking on Wikipedia, where he had been blocked long before for old behaviors.) It worked, he almost entirely refrained from editing Wikipedia, but there were a few exceptions, actually harmless. What happens when you compile sources and annotate them is that you learn. This is why students do this in real universities. That page was attributed as his work. And that is how Wikiversity allows original research. It is not presented as neutral. It’s “study.”

The Parapsychology project on Wikiversity was, over the years, occasionally attacked by single-purpose accounts, later recognizable as Darryl. (Darryl was also known as Goblin Face on Wikipedia). This time, as an SPA, Darryl filed a sock puppet investigation, but nobody was paying attention (there was really very little disruption, if any, and Darryl relied on Facebook postings, etc.)

So, as he later explained as a sock, I think it was on Meta, he had to do something. So he created sock puppets to impersonate this user, daring Wikipedians to do something to stop him, he could do whatever he wanted on Wikiversity, LOL!

So they did something, and the particular page he had been working on was deleted and he was blocked for “cross-wiki disruption.” I had not been paying attention to Wikiversity, having basically abandoned it as unsafe (even though it was much safer than Wikipedia). When I found out, I filed steward checkuser requests and the impersonation socking was confirmed. And I started looking at how obvious single-purpose accounts could create such disruption, while administrators were clueless dupes.

Starting up that study, I was intensely attacked, and many socks were globally locked. And then the RatWiki article appeared. And then the coordinated attack on the Wikiversity resource on cold fusion appeared, started by an IP. This was then repeated for the entire Parapsychology resource. The arguments can be seen in the archive.

There had been no disruption at all over cold fusion on Wikiversity, since the resource was started in 2006, until this Request for Deletion arrived in 2017, full of irrelevant arguments, a complete mess. (The resource history can be seen here. No revert warring, no conflict. Actual educational discussion.)

There had been minor disruption over Parapsychology, all easily handled. Until this.

The attack was actually personal, on me and my work (I created the Parapsychology resource in response to requests from scientists, and to show how a resource on a controversial topic could be neutral, and still academically free. If interested, I suggest reading the discussions.)

“Original research” was always explicitly allowed on Wikiversity, as long as it was disclosed as such. There is a huge difference between activity in a university and activity in creating an encyclopedia. The force for deletion was entirely from non-Wikiversitans.

Michael Umbricht, who acknowledged receiving complaints by email, invented an entirely new reason for deletion, never seen before or since. From his behavior, he intervened precisely to support the revenge effort from Darryl, who had recruited Guy Chapman (JzG) and Joshua P. Schroeder (ජපස), who were long-term Wikipedia enemies of everything fringe or “pseudoscientific.”

Umbricht then extended deletion to a large number of pages in my user space, deleting them without warning — totally violating deletion policy. These pages had been used for many purposes and some were historically important. But they were easily identifiable as “Abd’s work,” which he had likely promised to delete. Deletions without notice, for legal content, was unheard of on Wikiversity.

To recover these pages required downloading very large Wikiversity XML dumps and writing a program to extract pages with a prefix from it. (I’ve been unable to find such a utility that I could use).

The actual motivation here was not really a content dispute. It was about revenge. The RatWiki article was about revenge, and there are many examples where the Smiths did that, going back long before I was involved.

They learned how to manipulate administrators, and the WMF fell for it.

Gender Desk has posted another page about the lawsuit:

Lomax v. WMF: Abd names names

Lomax v. WMF: Abd names names
JUNE 28, 2019

Thanks, Gender Desk, it all works together. One point that can be missed. I did have a “Count 4” in the Amended Complaint, asking to be unbanned. But I am abandoning that, for a number of reasons, not the least of which is that this would be of very little value to me personally, and by the TOU, very limited recovery ($1000 max) for damages. It is not worth the effort for a single person. It could be a class action, but I’m not holding my breath. It would be difficult, because of how the CDA Section 230 has been interpreted, but not impossible. Not my call. I’m going for what is easy. After all, Not a Lawyer.

The rest of the suit is about defamation and conspiracy to harass and defame, not their right to ban.

Wikipediocracy discussion

Lomax v. WikiMedia Foundation, Inc. et al

Some points. Vigilant is, if I recall correctly, the user who was accusing a Wikipedia user of being a pedophile, insistently and without adequate evidence. He’s remained very active with an image of himself as “Witchsmeller pursuivant.” Charming. His constant theme years ago, was that I would write tomes. Anti-intellectuals and people who can’t scan-read hate long posts. Most normal people skip them if not interested. Vigilant would quote the entire post with, then “tl;dr” at the end. Funguy.

He claims that downloading one of my filings would bankrupt him. The fact is that PACER charges 10 cents per page with $3 max per document. If that would bankrupt him, he really should get a life and do something more useful than hanging out at the WPO Bar and Grill. This is the snark that has largely taken over wikis. Facts don’t matter, evidence doesn’t matter, only looking smart and winning matters.

Midsize Jake gets it more or less right, except that in Rossi v. Darden, I was supported by the public because of strong evidence in that case, including paying my expenses to attend the trial. That was fun. It is not every day that I get to hang out with and greet a billionaire (though in the cold fusion field, it’s not that uncommon, nor a famous inventor/fraud. Nice guy, just got a little reality problem. I’ve seen much worse. In fact I would prefer his company any day to most of the wikidiots. Being banned on the WMF, from that perspective, was quite a relief. I no longer had to deal with what was rapidly becoming, through the natural filtering of burnout, far too dense with really not-nice people. But the ban was a libel, having other consequences, hence the case, which is not an attempt to regain editing privileges. If that were to happen, it would be because the WMF, as advised by counsel, considers this a reasonable outcome.

Yes, I have a case, I believe it will survive a motion to dismiss, but even to file a motion to dismiss, the WMF will need to engage a lawyer, and there is an expense to that, substantially more than the $400 I have spent so far. Since I expect that the WMF has competent counsel, I think they will attempt to negotiate, what they should have done when I sent the first registered letter a year ago. It is much cheaper than duking it out in court, but I think they assume that they only ban incompetent basement dwellers who will not file, and they appear to have been mostly correct on that. I know of at least one other case where they banned someone who may have had a case. He decided that he didn’t have clean hands.

Kumioko (also office banned) wrote:

Yeah to be honest theres really no reason for a website or business in general to not tell someone why they were banned or barred from it. I also think it’s possible he could get them to reverse the policy of bans being non appealable.

Now, in general, a business can ban anyone. But can they put up a sign, visible to the public, saying “John Doe is banned from this store”? I don’t think so. I am not going to telegraph what I would settle for. But they could do it without harm and it would be safer and better for everyone.

Yes, “non-appealable” is vulnerable to attack, but it also might be defensible. I can imagine the arguments. I do know what I would do if I were counsel for the WMF. It’s really simple, and just about any attorney would do it. So this is fun. I could have filed in forma pauperis, I’m on social security with not really enough income, but I was looking at a possible statute of limitations and it would have taken time to get a judge to issue the order. So since I did have $400 available, cash in a drawer, actually, just enough, I decided to just file, it was fair enough that someone pay the court expenses, and so . . . I’ll get that from the WMF for starters. If not, they can suck eggs and spend money on attorneys and win or lose. I don’t know what they will do, but I see random idiots claiming they should “never settle,” as if that should be policy. Yeah, policy for the terminally stupid. It can get incredibly expensive. I *can* file in forma pauperis and get free process serving and more. I have studied the rules.

I was the perfect person to be put in this position, to create a possibility of at least some small reform. I have enough legal experience that *probably* the case will not be dismissed, and, yes, I anticipated the arguments that the opinionated opinionators advance.

The case against RationalWiki is different. I mentioned them, but they are more immune, as a foundation that does not itself make content decisions — unless legally compelled. I did send them an email, they ignored it, but I have never dropped the few dollars on a certified mail to them. Maybe I will. And maybe they will fold. They do have sufficient assets to be worth suing, and the law they rely on for protection is not completely clear, and, again, refusing to negotiate is not smart, particularly after someone shows they are serious. At this point, they are not under legal threat. Certain individuals may be, and individuals are not so protected against libel charges.

This was posted, from the Complaint:

See https://www.courtlistener.com/recap/gov.uscourts.mad.207020/gov.uscourts.mad.207020.1.0.pdf.

Claims (among other stuff) that:-

3. (on) February 24, 2018, without warning or notice and with no violation of the Terms of Service (“TOS”), WMF
published a global ban of plaintiff, and publication continues. WMF has refused response to plaintiff. 

And thus seeks for:-

1. $200,000 to date for harm to reputation and public support of plaintiffs legitimate activities as a writer,
2. Order that alleged Terms of Service (TOS) violations be disclosed to users so that they may correct them.
3. Order for due process with bans, and, failing that, that they be lifted or, as a minimum, hidden for privacy. 
4. Order that Does 1-9, on discovery of identity, cease defamation and, where possible, issue corrections.
5. punitive or exemplary damages for negligence and malicious defamation.

Kumioko wrote:

The WMF doesn’t respond to me either, because I honestly don’t think they care about the effects bans have on the people, the projects or the community. As I have stated before, it is my belief that the so called trust and safety section issues the bans at their discretion and legal and other areas are courtesy copied to make sure the paper work is right and to give the appearance of a fair process.

I think 1, 4 and 5 are unlikely and amount to wishful thinking but it’s worth a try. The law in the US says we have the right to face our accusers but technically being banned from a website isn’t a crime and according to multiple cases in California nor is violating the ToU or ignoring bans for ToU violations. So I don’t know if the courts are going to compel the WMF to divulge the identities of editors for something that isn’t considered a crime.

2 and 3 are reasonable IMO in most cases. Certainly the lawsuit will compel them to detail exactly why he was banned rather than some vague terms of use violation.

In the end, even if the result is NULL, it will cause the WMF to spend time and resources for what amounts to $400 of the individuals money and a few hours of time.

Gee, great minds think alike. (I always knew Kumioko was intelligent, merely a tad obsessed. I tried to encourage him to tone it down. But people do what they are going to do, even very smart people can be blind in some areas. Maybe even me.)
(The process is that the defendant can move for dismissal, but the court must, in ruling for dismissal, consider all my factual allegations, in the complaint (as it might be amended!), and in my response to the motion (which might be as advised by an attorney, that depends on funding or a volunteer), to be true. There are some claims below that have possible answers. I really do know something about the process. But, of course, I am not an attorney and my experience is incomplete.)
Even if the case is dismissed, there is a good possibility that it would be dismissed for some defect, without prejudice. There are issues that could cause a dismissal with prejudice, but these could also be appealed. Basically, fighting this will be expensive for the Foundation, which is why any attorney will suggest communication, not stonewalling, once a complaint gets to this level. I saw the parties in Rossi v. Darden settle as soon as the truly stubborn one (Rossi) had an attorney that actually served him instead of just taking his money for a really dumb lawsuit., by convincing him to settle instead of going out in a blaze for glory, probably ending up in prison for perjury, because that is what his insanity had led him to. Of course, he was going for $89 million and triple damages, and my sense is that he and/or his attorneys thought the defendants — with $2 billion under management — would probably settle for less. What they actually settled for was a walkaway. Complicated story, Rossi’s attorney was brilliant, has been my assessment. Saved his ass from possibly losing everything, including his freedom, and he probably still had a few million left from what he had been paid for a fraud.
Vigilant continued trolling, the Energizer Troll.

He will be lucky not to have the WMF awarded legal fees.
The WMF doesn’t do much right, but they have friends and donors who know which legal firms to retain.

Abd just opened a can of whoopass on himself.

There are advantages to poverty. “when you ain’t got nothing, you got nothing to lose.” In order to be awarded legal fees, the WMF has to fight this, spending money. Lots of money, probably, but, of course, that depends on what I’d be willing to settle for, which, of course, I’m not revealing.
As to actual rules, there is a $75,000 requirement for filing a Diversity action, which this is (crossing state boundaries). So if I am awarded less than that, they can ask for legal fees. However, collecting them is a separate issue. That was a consideration in Rossi v. Darden. Further, any settlement will supersede that. Obviously, it’s a consideration.
Many of these people on the WMF criticism sites have been useless wimps for years, not willing to do anything that might actually make a difference, but criticizing anyone who tried. Again, being banned on Wikipediocracy was actually a relief. These sites were setups for wasting vast amounts of time, too often. Some good people comment sometimes, but overall, the context sucks and real power is not developed.
Edit: He went Pro Se…
If the WMF want to make an example of him, he’s just committed bankruptcy.
And if I am already bankrupt? Can those who are bankrupt file lawsuits? (of course they can! and that is irrelevant). But the WMF, to make an example of me, will have to reveal what actually happened. I do assume that if they do not immediately enter settlement negotiations, they will try to go for dismissal, but I suspect that will fail. So this will enter Discovery. That gets complicated and can be expensive. But one step at a time. I have a history of not doing fundraising until I actually need the money, and then, the history is that enough money is provided to do what is needed.
If not, well, nothing ventured, nothing gained, and I live for the experience, not the outcome, which does not vary. Everything passes away except the face of Reality.
Ongoing libel, unremediated injury to plaintiffs reputation, harassment of family, $200,000
As an anonymous account?
Who all knows the Abd account is you?
What more damage could the WMF do to your reputation?
Harassment of family sounds like you’re on the edge of committing libel here.
The anonymous account was never anonymous. It was using a real name (Abd is the name I most commonly use), and connected with the birth name from the beginning. I once asked for rev-del of the original user page, but that was never done.  Now that the lawsuit is filed, it doesn’t matter.
As to who knows, the Does know, and have attempted to damage my family relationships and I do know that the RatWiki article has caused problems with personal relationships.
Libel is libel, and a person with a poor reputation, if I were that, could still be damaged. But try to find a poor reputation before the RatWiki article was written. What can be found is that isolated individuals accused me of this and that. Trolls, for the most part. Or people like JzG, who was outraged that the Arbitration Committee reprimanded him in the case I pursued, and never forgave, and for years blamed me for the state of the cold fusion article, even though I never heavily or disruptively edited it.
My real-world reputation is not my wiki reputation, Vigilant lives in a very confined world, and believes that his shallow opinions are reality.
1. Having threatened plaintiff with harm, one or more Does created an article defaming plaintiff on RationalWiki,with malice, and acting to preventing correction.

The WMF doesn’t control RationalWiki and is not responsible for anyone who posts there.

That’s correct, but irrelevant. Those who did post there (“one or more Does”) used the fact of the ban for defamation (by linking to it) and also quoted a letter from the WMF confirming the ban. In other words, they apparently  tell the complainants that their complaint was acted on, and that was then published by the complainant, who was a long-term defacto banned user with no right to edit Wikipedia and very possibly globally locked. (I imagine the basis might be that, by then, I was identifying Anglo Pyramidologist as Oliver, I’m not sure, I’d have to check, though that was already all over the internet, so the WMF was protecting the privacy of a non-user. Except that he was a continued user as a block evader. Still is, by the way. This was him.
This was not on-wiki and was not related to any legitimate wiki activity, nor was my account used. Increasingly, I have seen the WMF use global bans to punish people for exercising freedom of speech elsewhere. There may be a legal issue there, but it is not the foundation of my case. It would be more difficult. If I wanted to go for general fairness, I might have asked for a jury trial, but I decided to keep it simple. (A jury might be moved more by a sense of fairness, but maybe not. And judges are people and I have been successful in communicating with judges, developing rapport. It can make a difference, in fact. I would never abuse that, but it can grease the wheels a bit.)
2. Does 1-9 filed false complaints, possibly coordinated, with the Wikimedia Foundation (“WMF”).

What injury does a ‘false complaint’ do to you?
How will you prove this?
Again, close to the libel edge.
How is the WMF liable for this?

Vigilant is demonstrating profound legal ignorance. The Complaint is quite simple. I begins with a recital of alleged fact, which can be alleged on information and belief. I must believe that I can establish this, but I can be wrong. A complaint is never libel! (I saw many people make that mistake, they believed that Rossi, filing his complaint, must have been telling the truth because supposedly he could be charged with libel or perjury if not. No. You can file a complaint if you believe something to be true, or even if you believe it is possibly true. You do not have to have proof. You will be looking to obtain evidence in discovery. And one cannot libel a “Doe.” “Someone stole my shoes” does not libel anyone, does not accuse anyone of being a thief.

The alleged facts do not negate that someone may have filed a legitimate complaint. Only that I believe that at least one complaint was false, and the most likely one is the reported email harassment of a certain user. If he complained about harassment, and I have the emails and have published them, he libelled me. But what did he actually report to the WMF? I don’t know.

I may not be able to find out, but there are procedures for handling confidential material. No, you cannot libel someone privately and then be immune, because of privacy protections. That veil can be penetrated. There were claims of attorney-client privilege in Rossi v. Darden. I think a magistrate looked at the documents and ruled.

The fact recited did not make the WMF liable. They are responsible for their actions, not for the content of complaints.

Too long, Vigilant has been confined to his asylum.

3. February 24, 2018, without warning or notice and with no violation of the Terms of Service (“TOS”), WMF
published a global ban of plaintiff, and publication continues. WMF has refused response to plaintiff.

You don’t have a constitutional right to use their platform.

Correct. I have not claimed I did or do.

You don’t have a financial injury from being prevented from using it, unless you’re copping to paid editing now…

I have not claimed and did not suffer financial injury from being forbidden to use the wikis. I have claimed injury from the *publication* of the ban, which was unnecessary and gratitious, and, were there actual TOS violations, they could have been addressed without that publication.

He went on with a bit more “dipshittery.” His legal counsel is worth less than what was paid for it.

Poetlstier wrote”

He’s after the John Does as well as the WMF. He’s demonstrating that one of the John Does has done things other than harass him on Wikipedia, to strengthen the case for the WMF having to help identify said person.

Poetlister is, by the way, another office-banned user. He was the first user to be honored with a “community ban,” which actually libelled him, accusing him of criminal actions which he did not do. But he never pursued recourse. The WMF would not have been liable, but they later office-banned him. So maybe, maybe not. It depends on conditions, and the WMF has been banking on the TOS provisions and that most people will just walk away. But I don’t know that anyone had ever weaponized a ban as the Smiths did, with the help of a handful of other users.

Vigilant piled on more. He’s calling it “suicide by court.” Vigilant has no idea what it is like to live without fear of conditions. He also has no idea of the possibilities. I.e., I have time to obtain counsel. No attorney would advise relying on what he proclaims as obvious.

If I erred in my Complaint, I can amend it. A judge will not grant a Motion to Dismiss without my having that opportunity.  I know many of the facts in this case, and legal precedents, and I was told by someone with substantial legal expertise that I have a case. Having a case does not mean I will win, but that it is possible, and I go for possibilities.

As a result, I have literally lived a life to die for. 7 children (two adopted) (Oliver Smith considers me a disgusting breeder, saying something about him — an anti-natalist), and 7 grandchildren, one very new and amazingly beautiful.

At 70, having been out of the sciences since my early twenties, I was published in a mainstream peer-reviewed journal on a topic of high importance, and the work I recommended in that paper has been funded with a $6 million grant.

My writing is widely appreciated on Quora, and it’s fun, I’m followed by some very, very good writers. By comparison, and without protective structure, the wikis are useless time-wasters, and standard fora are even more useless.

Besides, I do the most difficult Sudoku, in ink. Heh! And, yes, I’m getting older. Stealing a meme from Groucho Marx, that’s wonderful if you consider the alternative.

Ah yes, above, Vigilant mentioned paid editing. I’ve done paid editing. Done the way I did it, it is not a violation of policy, and the customer was fully satisfied, so Vigilant can go jump in a lake even though he is already all wet.

Just because Vigilant attacks others for free, perhaps for the sadistic lulz, doesn’t mean that everyone must write for free!

This bloviating went on. BURob13:

The WMF has made no statements about Abd publicly except to say he’s globally banned, so they cannot have defamed him.

The publication of the ban, which is distinct from the ban itself, was, in this case, intended by at least the Smith complainants to be defamatory, that was the purpose.

Moreover, he isn’t even claiming he was defamed by the WMF, at least by my reading. His only claim about the WMF in that filing is that they globally banned him. Obviously, they are legally entitled to bar anyone from contributing to their privately-owned website.

Given many of the representations of the WMF about Wikipedia, that is not necessarily true, but it has never been tested, to my knowledge. I am instead focusing on the publication of the ban as a libelous act. I am, by the way, still allowed to “use” the site. Just not to use an account (or to edit by IP).

I struggle to see where he has even articulated any claim that the Wikimedia Foundation has committed a tortious act. I agree that, if Abd is fortunate, the WMF will move to dismiss, it will be granted, and they will not seek costs. There’s a snowball’s chance in hell this reaches discovery.

Here is what I expect is likely.

The WMF will negotiate and most likely we will reach a settlement without further action. If the WMF is intransigent — or perhaps I’m stubborn and stupid, but I wouldn’t bank on that, unless I decide that whoopee! This is fun! (and I do have advisors involved) — then it is possible for an MTD to prevail, but by no means certain. These trolls have no idea how difficult an MTD is, few are granted if the plaintiff is at all competent and there is any possibility of some aspect of the case prevailing. Any possibility at all, it can be pretty dim, and I’ve seen that up close.

Beeblebrox wrote:

The whole reason the office bans are a total block box is to make a lawsuit like this hopeless. All Abd has done so far is waste four hundred bucks, and that’s probably all that will happen.

I’m sure that’s the idea. But nobody has ever tested this. The $267 million lawsuit I covered was one where an LLC was formed to buy a technology that was quite visible as probably worthless, simply to find out for sure, and they invested about $20 million for that purpose. Was that wasted? They accomplished their goal which was that discovery, knowing that if the technology actually worked even roughly as claimed, perhaps merely being exaggerated by an eccentric inventor, it was worth a trillion dollars. So was their $20 million foolishly spent? The reality is that by being that bold, they attracted a commitment of another $200 million. So those “fools” multiplied their funds to invest by a factor of ten, and that new money did not go to the fraud, $50 million was actually given to them (maybe more, it’s not clear), it went to scientists for the most part. These are very long term angel investors. And I get to meet and work with people like that. So what I invested $400 in was to find out what might be possible. That will not be wasted, unless I walk away from it without finding out. Of course, I might not find out because of making some mistake that someone else might not make. But this life, it’s always like this. If we are afraid of making mistakes, we never learn.

Kumioko wrote:

As for the $400, that’s only for the court costs. That doesn’t include airfare, hotel stay, etc. if he is coming from some where outside the US (which I believe he is).

Of course there is a small chance that he will get a favorable ruling from the Judge but in California it’s doubtful.

Kumioko has missed details found in the Complaint. The filing is in U.S Federal District Court, a Diversity action, filed in Massachusetts. The court is about twenty-five minutes drive away, or I could take a bus there for $0.75 or Uber for not much. This is not a California Court, and it is not clear to me what state law will apply. The WMF is actually a Florida corporation, the Office is in San Francisco, and the servers are in WTF land. Precedent seems to be clear that I can file this way. I did do a fair amount of research before filing.

Vigilant ranted on. Really, this guy is the true nut case.

Given his rapacious online begging for his various “cold fusion””institutes”,

Rapacious? The GoFundMe page has a goal of $20,000. A few years back, I invested about $1200 plus travel and hotel expenses in training as to how to create transformative projects. That has been amply recovered, but only a little of that show on that page. Part of that training is to not think small. Could I use $20,000 for cold fusion journalism purposes? This technology is being researched all over the world! Easily. So why not ask for it? Nobody is required to look at that page, just as nobody is required to read my blog.

In almost two years, that page raised $2750 (which paid my expenses in Florida for the trial, and going to ICCF-21 in Colorado last year. About two weeks ago there was a Colloquium on cold fusion at MIT. I was hesitant about going, I wasn’t sure I’d be able to find a place to stay, and though I could take the bus there for not much, hotel rooms were on the order of $200 per night, and I’d need to stay three nights for the two-day Colloquium, and there would be other expenses. So I asked the research community if they wanted me to be there. What I got was an immediate response from one investor in the field, telling me that his company would pay all my expenses, get myself a nice hotel! And others asked how they could help, and this is where the recent $500 came from, there was no open appeal. But there may be, because coming up is the International Conference on Cold Fusion in Italy, I think in September. That will be far more expensive, but I suspect that the community will also want me there. If not, well, I won’t go! I do almost everything for community, little just for myself. And if the community doesn’t appreciate it, not my problem, I go somewhere else where I am appreciated.

(As it happened, I was able to stay with a friend, so I had no hotel cost. He lives close to MIT, so it was a couple of dollars on Uber Share. Easy Peasy.)

What these trolls and lolcows don’t realize is that the people who attacked me have also attacked many, in the nutrition field, and some of these have money and high motivation. I have not received any funding for what I have done in the Anglo Pyramidologist affair, and I’m reluctant to spend Infusion Institute money for this (which pays my cold fusion related expenses, and which also received much more funding directly, not through the GoFundMe page). Those people in this new field may well contribute to legal expenses. Or not. I don’t demand anything.

Except, of course, an effing response to a Complaint! In fact, I don’t even demand that, because I’d love it if they don’t respond, because that default judgment would, well, take me out of bankruptcy. Far more than enough. I expect, as I mention above, that they will negotiate. They could ameliorate harm rather easily. Why would they refuse?

What a court will actually allow is up to the court, depending on what evidence is presented.

Not on the mindless opinions of Wikipediocracy trolls.

I strongly suspect this is a shakedown for money. In that rat’s nest of a brain, Abd probably thinks that the WMF is a soft target and that’s he’s just the Pooh Bear to extract that delicious mhoney.

I love rats. Amazing creatures. Smart as hell. The WMF may or may not be a soft target, it depends on many factors that I don’t know. But they definitely have deeper pockets than Oliver and Darryl Smith. The former is already being sued and the plaintiff does not expect to see the money, just satisfaction, and defamation is a criminal offense where Oliver lives. Oliver is on the dole, has no job, though he is about 29. Darryl, I don’t know anything about his employment and only where he lived, not where he lives. But all this can be handled, if needed. It only takes money, and Darryl has graduated, probably in biology, but also in targets, from attacking helpless students of parapsychology to going after successful authors and physicians, who just might sue his pants off. Or not. But if I succeed in opening this up, it will provide ammunition for others who are being libeled by the same team.

I only want the truth to come out, as a primary goal. The rest is to recover costs and expenses and damages.

Secondly, there is no lever that Abd can use in a judicial arena to force the WMF to explain why they banned him.

While I have asked for that, I do understand the difficulty. (The question would be protecting the privacy of complainants, great idea.) Vigilant is refusing to recognize the claimed basis for the suit. Maybe I need to amend the Complaint to make it more clear. The basis is not that they banned me, but that they published it. However, at this point, they did publish it and there were consequences. First, was I libelled in the complaints? If so , they are not protected speech, they were defamation. If the WMF refuses to disclose them, they simply become fully responsible for the action they took. Was the ban publication defamatory? That is a factual question, not a matter of law.

The WMF stands to learn something about how to better protect themselves. Will they? I don’t know. I do know this: if they won’t talk with me about the ban and at least hear what happened from my point of view, showing that they have understood it, I won’t settle, unless they offer me a fat incentive. How about “We’ll give you your effing $200,000 if you go away and stop writing about us? I might consider it, because I’ve got a lot of other things to write about. I have no idea what they will do, really, except I expect them to talk to me, because it is entirely too stupid not to, they would be risking too much for too little benefit. I don’t expect them to be stupid, but I have been wrong about things like that before!

They’ll evaluate his fiscal state to estimate how long he can afford to litigate.

I have no ongoing expenses of litigation, and I’m not in a rush. What I have as current assets are irrelevant to what I might be able to raise, if I need to do that. I have competent heirs, one highly competent legally. While we can never be certain about the future, I am very likely to see this through to the end. This alleged legal analysis is idiocy.

The WMF’s legal team will hire local legal counsel to assist. The local counsel will already know everyone in the local jurisdiction’s court system.

And, I assume, they will meet with me face-to-face. I’m really good at that! I do well with judges, too. Now, local counsel will cost them,  for competent counsel, maybe $300 per hour. Vigilant has claimed they will “bury me” with lawyers. In  Florida, the plaintiff (Rossi) had four lawyers sitting there, the defendants had five, and the third-party defendants, one. Ten lawyers. No wonder when settlement talk started up, the jury sent out of the room everyone was smiling, happy, the lawyers joking with each other and even chatting with me. (Rossi’s original counsel was with a firm where the principal, a highly experienced woman, had died, so I commiserated with a junior lawyer from that firm that was part of the team, about the loss.. These internet trolls have no idea what real people skills look like, because they don’t have them.)

So, what, they will bury me with three lawyers, $900 per hour? For how long? As a pro se defendant, if needed, I can ask for additional time for replies, and I am likely to get it if I don’t alienate the judge by being the “kook on steroids” that Vigilant imagines me to be. Under stress, I slow down and become very careful, but I avoid stress as much as possible. Judges like it.

The WMF, on the other hand, has a prime opportunity to display to any other ne’er do well malcontents that there is a ruinous cost for litigation that will be borne by vexatious litigants.
Cool. He seems to be warning a turnip that he might bleed to death. I’ve been legally threatened, not so long ago, by counsel for a $100 million corporation. I’m trained and I immediately, it was almost trivial, turned it around, into cooperation.
I’d love to meet with counsel for the WMF. I hope they find someone competent, and that they listen to counsel, because a client’s failure to do that has, in the past, been very expensive. On the other hand, in this case, expensive to them could mean more profitable for me. Still, I appreciate the goals of the WMF and thing that they have fallen into some traps, and I’d love to help them escape from them.
I also have other possibilities for resolution of this, not to be announced as yet.
Ongoing discussion seems to be unaware of actual process.
If there is going to be a Motion to Dismiss, that comes before Discovery. There is no need for discovery if the filing did not allege a basis for a judgment in favor of the plaintiff. The plaintiff may, however, amend the Complaint to remedy defects (in which cast the MTD may need amendment as well). I have studied the rules for this. A successful MTD is actually rare if there is any possible basis for the plaintiff to prevail on even one count of the claim. Further, there can be an appeal if the plaintiff believes that the judge ruled incorrectly. But I don’t expect the judge to rule incorrectly. Normally, a correct decision will be clear and I would not frivolously appeal. By that time, I expect I will have obtained even more expert advice.
So if there is no Motion to Dismiss (because of certain issues, not mentioned yet, I do expect one absent a prior settlement), or if the Motion is rejected, Discovery begins and the parties may issue interrogatories, requests for production of evidence, etc. Depositions may be taken. Discovery is the most expensive part of a suit, it has become. The parties bear the expenses of deposition. Evidence in discovery must be attested, it is admissible later at trial.
After discovery, any party may move for summary judgment, i.e, claiming that there is no question of fact, that only a question of law remains, and urging the court to decide immediately on the basis of law. The standard for Summary Judgment is similar: there is no need for a trial, the conclusion is obvious. If motions for summary judgment fail, whatever issues remain go to trial.
This is one of the issues I expect to be raised. It was written:
Abd filed suit in the wrong jurisdiction. Section 13 of the Terms of Use requires all suits to be filed in state or federal court in San Francisco County, California. If this proceeds to any extent, he’ll need to fly out there.
Yeah, I thought that for a time. Since I have kids living just north of there, I thought I might go.
Further, California law has a statute of limitations on libel of one year and the TOS also provides such a limit, and a limit on damages of $1000.
However, this troll is assuming that the suit is filed under the TOS. It is not. This an action for libel, where plaintiff and defendant are in different states. The TOS does not give the WMF the right to libel me. It does allow a ban, but a ban does not require that I be libelled. That the WMF implements a ban with an openly visible global lock and statements on user pages is their choice, not required in order to ban. I don’t want to go into details more than that. To be clear here, the tort was the publication of the ban, not a ban decision. They could trivially ban the same without that publication, but they don’t, because nobody ever noticed that the publication can be a defamation, until this case, where it was intended as that and was used that way, aided and abetted by the WMF through its incompetent and abusive process.

On User talk:Jimbo Wales no less



According to [1] and [2] a lawsuit has been filed against the WMF, but the actual court documents listed on those pages are behind a paywall.

This page[3] allows you to download some of the documents as PDFs[4][5][6] but others are listed as “Buy on Pacer”. Does anyone know where we can access those paywalled court documents?

The only document of significant relevance is the original Complaint, which is available on link 3.

Here is the Wikipedia username listed in the lawsuit: Abd (talk·contribs·logs·edit filter log·block log)

Actually what was listed was the WMF global account “Abd”.


None of those are truly relevant. That was all very old, and I never attempted to return to en.wikipedia, having concluded that the context was hopeless. A prior arbitration case involving JzG would be more relevant, because JzG was involved in the activity at the end of 2017, pursuing a vendetta that he had maintained for so many years, taking it to Wikiversity.

I am going to assume that, being part of the WMF, Jimbo cannot comment on any ongoing legal actions. I am under no such restriction, so I will be posting a copy of this at User talk:Guy Macon#Lawsuit against the Wikimedia Foundation? if anyone wishes to discuss this case with me. —Guy Macon (talk) 18:14, 4 April 2019 (UTC)

I’d be happy to discuss it with him, but I can’t do so on Wikipedia, nor can I arrange to contact him, all of that would involve TOS violations and I have never violated the TOS, nor do I plan to.

If you have any good secondary sources, put it on Litigation involving the Wikimedia Foundation. Was Abd the cold fusion editor? Gråbergs Gråa Sång (talk) 07:02, 5 April 2019 (UTC)
He was one of the cold fusion editors.[7] —Guy Macon (talk) 08:07, 5 April 2019 (UTC)

That’s all shallow. That case was not actually about cold fusion, but about the right of an administrator to unilaterally declare a topic ban and then personally enforce it when an alleged violation was not in itself disruptive. The case decided that my position was correct, and admin could not do this. It also decided to desysop the involved administrator. But it was, as well, used as a coatrack to sanction the complainant, a nasty habit that has worked much harm. File a frivolous complaint, yes, sanctions. But file a valid complaint, irrelevant countercomplaints should require a separate filing, attempts to resolve before filing, etc.

Cold fusion editing continued at en-wv after the actions at en-wp. The topic, broadly construted, is now subject to sanctions covered by a topic ban. —mikeu talk 17:20, 6 April 2019 (UTC)
That was a decision by mikeu, contrary to long-established Wikiversity policy, and admittedly based on anonymous private complaints. Wikiversity does not have articles, Wikipedia “editing” is misleading applied to Wikiversity. It has educational resources where topics may be studied, in great depth. The Wikiversity resource had never been disruptive, there had been no revert warring, nor was it attacked, until the end of 2017, by anonymous users who recruited two Wikipedians to show up and claim that the project was “pseudoscientific.” Those users were clearly following a vendetta, created when I exposed impersonation socking on Wikipedia, filing checkuser requests on the meta wiki, granted, impersonation socking verified. And because the prior sequence raised the issue of anonymous users or SPAs creating disruuptive process, I started to document what had happened. An avalanche of socks were created, disrupting and threatening me and others. So I moved that project to the meta wiki, where there was more supervision available.

I was threatened that everything I had written would be deleted, if I did not stop documenting the blatant socking. And so it was, later by mikeu.

But that is not the cause of action in the lawsuit. There were those who defamed me in complaints to the WMF. I may have a distinct cause of action against other acts of defamation, of which there have been many, but that’s not particularly relevant to this lawsuit, though it could be amended. Mike’s actions violated Wikiversity policy, but that’s a problem for the Wikiversity community, not for me. I was able to recover all my work and place it on another wiki, where it is actually more useful.

Is Rationalwiki owned by the WMF? –Roxy,the dog. wooF 08:18, 5 April 2019 (UTC)
no, it’s an entirely unrelated nonprofit of its own – David Gerard (talk) 00:36, 6 April 2019 (UTC)

Guy Macon, I have a PACER account. What documents do you want copies of? Kb03 (talk) 13:27, 5 April 2019 (UTC)

Just look them over and confirm that the ones I can’t see are the usual boring secondary documents. I would like to know if the WMF has been served, though. —Guy Macon (talk) 23:28, 5 April 2019 (UTC)

How about asking me? Here is the status: a copy of the complaint and a request for waiver of service has been sent by certified mail, return receipt requested, to the Registered Agent for the WMF in Los Angeles. I have not received the receipt back yet, so I need to find my receipt from the post office. It’s somewhere in this pile on my desk. If I don’t get a reply back soon, I will arrange for a process server to deliver it.

No, Rationalwiki is independent, that’s just weird. They know about this though as I told User:David Gerard. This is a lolsuit (I stole that from the discussion at Wikipediocracy). A sock of the racist Mikemikev told me about it (claiming that I and User:Maunus were responsible for the demise of Rightedia, which sadly neither of us were a party to, and saying he’s back at Metapedia (en.metapedia.org/wiki/Special:Contributions/Lamprecht) where he will write an article about me. I told the WMF – I don’t think they’ve actually been served but that’s just a guess. Abd is trying to find out if the ban was the result of private communications from people who he claims were harassing him. This doesn’t seem to have been his first lawsuit. Abd_Ul-Rahman Lomax has an Encyclopedia Dramatica article but you’ll have to search for it as the link is blacklisted. Doug Weller talk 13:35, 5 April 2019 (UTC) Try this (encyclopediadramatica.rs/Abd_Ul-Rahman_Lomax} – the software seems to allow that. Doug Weller talk 13:36, 5 April 2019 (UTC)

The Encyclopedia Dramatica article on me was written by “Mr. Strong,” an admitted sock of Oliver D. Smith, the brother of Darryl L. Smith, who is the one who created all the disruption on Wikiversity, through impersonation socking on Wikipedia. If I get around to it, I’ll add links here to evidence.

I find it amusing that experience editors aren’t familiar with how to place an information link, but he did it. Just don’t make it a link. Leave out the http:// and the browser will fill it in. I did extensive work with getting useful sites removed from the global blacklist, and, indeed, my involvement with cold fusion began with confronting an abusive blacklisting. I was later topic banned on cold fusion because of a successful delisting request, on meta. Go figure. Basically, by that time the faction backing those I had confronted wanted me gone, and the old-timers who used to defend what I was doing were gone, including an arbitrator who resigned because of in-person, real-life threats against his family.

Before all this flap, I had decided that WMF wikis were unsafe, because policy enforcement protecting users from abusive administration was unreliable, I had seen far too many incidents, and far too little willingness of the community to protect itself. But I saw an abuse, harming an individual, and confronted it, successfully. Somehow mikeu ignored all that, and he ended up also blocking that fellow, for basically nothing but a trumped-up excuse. Very rude, indeed.

I should have added a caveat. Don’t trust Encyclopedia Dramatic to be accurate, it’s named Dramtica for a reason. Trolling seems welcome there. Doug Weller talk 16:43, 6 April 2019 (UTC)

So why even link to it? This is weird.

I passed it to the RW board, though we have no idea what, in any coherent sense, to make of it. All involved parties are banned as anything from RW and are still sockpuppeting furiously and getting banned instantly – David Gerard (talk) 00:36, 6 April 2019 (UTC)

No, not all “involved parties” are banned. David Gerard is quite involved, actually, he has shown an intense interest in protecting the Smith brothers on RatWiki, it’s obvious. The Smiths have long created sock puppets on RatWiki. On Wikipedia, they are known as Anglo Pyramidologist, see the SPI archive, but that only shows a fraction of their socks, there are many more, and some have been misidentified as the users they were impersonating. They discovered how to manipulate the WP community.

The user behind Goblin Face (one of the AP socks, actually Darryl L. Smith) claimed to having been paid to edit, by a “major skeptical organization.” That was confirmed by his brother, Oliver D. Smith, in email known to be from him. It is plausible. There are other interest groups, with more money, that might fund certain kinds of astroturfing, particularly on Wikipedia.

If Jimbo doesn’t protest I think it can be discussed here in a general context because I think there is likely to be lots and lots of lawsuits going forward as American courts, imo, in general, are becoming less and less competent, thus, less predictable in terms of what suits they will or will not entertain, therefore (not talking about this specific case) creating a lottery mentality among potential plaintiffs.

The point of discussing it on Jimbo’s talk page?

So, for example, I definitely think WMF should have a “no settlements” policy and that type of thing might be discussable here, maybe. Nocturnalnow (talk) 20:57, 5 April 2019 (UTC)

Such a policy could be very, very expensive. Ask a lawyer! I’ve never before gone to court as a plaintiff, but I’ve been sued. The plaintiffs told their lawyers not to talk to me. Expensive, that was, for them. Not for me. I’ve never lost in court, because I never took an indefensible stand.

What the WMF has is a policy that global bans are not appealable. (It is totally different from Wikipedia bans.) They also don’t warn users before banning them, that they are doing anything to violate policy, so if the person is doing something harmful, they do nothing to stop it, particularly if that thing doesn’t use the WMF account. They do not explain the ban to the banned user. Yet they publish the ban, and you really should see how the fact of publication has been used.

Lomax complains that his published SanFranBan was negative publicity that hurt his writing career, but it really depends on who his audience was and what he was trying to accomplish. If he was looking for street cred as a wiki-dissident, the ban may have actually helped him, by showing the WMF establishment was against him. (talk) 02:38, 6 April 2019 (UTC)

I have not said it hurt my “writing career,” but I do depend on donations for my journalism. I don’t know the full extent of the damage, it’s difficult to tell. If someone googles my name and finds the RatWiki article and the ban information, that they might then not donate to my work would not be visible to me, necessarily.

What I know is that one of my children, who is somewhat well-known and thus easily findable, received an email expressing concern about me, linking to the RatWiki article, and, as I recall, pointing to the WMF ban as evidence, claiming that, while he couldn’t be sure I wasn’t a pedophile, I was defending one. Which was a lie. I have not defended any known pedophile. That’s an Oliver Smith-type accusation, and there is a case where I pointed out that it was unwarranted –the alleged evidence was not supported by the source. And, by the way, I was banned from Wikipediocracy — without warning, also, years ago — when I pointed out how outrageous certain pedophilia accusations were, and I think that person may have just shown up here.

I am a member of the Wikipediocracy forum and I have been following this case and I know about the details of how all this started, I encountered Abd’s trolling about ten years ago, the guy has not changed.

I have often confronted abusive administration, and abusive administrators — surprise — don’t like that. So an anonymous user claims I’m “trolling.” He’s trolling! Fact-free, all opinion, no evidence.

Abd has opened himself up to countersuit and discovery. As one of our other members put it “The WMF can conclusively show that he’s a net.kook with no reputation to harm. And the WMF can bury him in lawyers.”

They can show that? Good luck, I’d say. Kinda difficult to prove. And that, at best, would impact damages, perhaps, but not the fact of a libel. They can bury me in lawyers? Does this troll have any idea how expensive that can be? It’s not his money that they would be spending, and what would they gain?

The countersuit would be for what? Discovery is, of course, great. I have nothing to hide. There are people involved who do, and who lied with intention to harm. This whole affair started with that, with impersonating “Blastikus” on Wikipedia, in order to induce Wikipedians to attack him and his harmless study on Wikiversity, collecting sources on parapsychology. Talk about TOS violations! And this was confirmed by stewards, but Wikipedians never took notice. Nor, apparently, did mikeu.

However, mikeu has obviously been in communication with the trolls, not only then, but recently. I do not know if he defamed me to the WMF, so I do not know if he is one of the John Does. I’m waiting for discovery, and could amend the action, and I might amend it anyway, but will be seeking counsel. I’m not in a rush.

As for the real reasons Abd was globally banned, it was for harassment and this can be seen publicly from his edits on Wikiversity. Abd was doxxing Wikipedia users (real names, photographs, addresses, work details, families) etc on his personal cold fusion blog to attack users that he blamed for getting his cold fusion project deleted on Wikiversity. You are dealing with a very vicious internet harasser. If Abd falls out with someone on the internet, he takes it personally and will stalk and libel that person, writing thousands if not millions of words about them on his blog. There are many victims of his. I would say his RationalWiki article is actually accurate in that description.

He’s lying. This is very likely one of the Smith brothers. This is common with trolls. A single possible fact of varied possible interpretations is conflated into a vast pattern. Notice that no Wikiversity edits are linked. Further, all the Wikiversity material was deleted, and documentation was moved to meta, and I was never blocked on meta. This is all about two extremely disruptive harassers, famous for it, long before I knew who they were, and I interfered with their agenda, they threatened me, and I didn’t back down. They created the RatWiki article and then went after Wikiversity. And they were aided by three other users, whom they had canvassed from Wikipedia. At least one of those users lied, claiming I had harassed him by email. Had I actually done that, it could have been the basis for a WMF ban. I did send several emails to users, warning them about the Smith brothers, who were trolling them. But I did not harass, not at all, and I did later publish the email with the user who complained publicly. He did not complain to me, he complained to Wikiversity.

Abd also sent Wikipedia users he blamed for his Wikiversity project being deleted “harassing emails”. This user, complained about it here. That same user was also doxed on a public internet forum by Abd and on Abd’s blog ( I will not link to that) but it can be found.

That’s a long story, but the email to that user was to offer to help get things taken down. See, I had added updated information on the user to a forum that had long tangled with him, this was a very uncivil guy with a lot of people angry with him. And at least some of that was deserved. In any case, I did add that information to my blog, on an obscure page. He never complained. However, I deleted my copy and requested that forum delete theirs. They said, “It’s true, it should stay.” I argued that it could be taken down as a courtesy, and they did. But meanwhile Darryl Smith, almost certainly, archived it. (I had server log evidence of this, as I recall.) In other words, these users who are so solicitous of the alleged harassed user, actually perpetuated that information, though it was actually obsolete long ago.

The user and I emailed back and forth a few times, then it stopped. This was definitely not harassment. Rather, he was using that claim for his own purposes, to create exactly the impression that this troll is harping on here. I think these users conspired to do this, but that’s simply a suspicion. I’ve gone into court on what is clear.

If you check the rules “Inappropriate or unwanted public or private communication, following, or any form of stalking, when directed at another editor, violates the harassment policy.” [8]. Abd’s global ban was therefore justified. He was putting users real life safety at risk.

It would be. So what was the inappropriate communication, and how does a user know that it is “unwanted.” There is a standard way. “Don’t email me!” If one then emails the person, it would be harassment. This is really simple. As to stalking, what I did has never been considered stalking. (And my interest in this editor was about off-wiki behavior and I was not attempting to influence his Wikipedia activity. But I am generally interested in how factions operate on Wikipedia and elsewhere. The community is largely defenseless against factional POV-pushing and the involved users have been openly contemptuous of NPOV.

You can also check Abd’s block log on Wikiversity. He was blocked many times for his online vendettas against other users. The blocking admin wrote to Abd [9] “Your long term activity at Wikiversity shows a persistent pattern of long term disruption that has been going on for the past SEVEN YEARS! This activity has also drawn a great deal of unwelcome contentious activity to our site that distracts the community from developing learning resources.” Since being banned from Wikipedia, Abd has been doxxing RationalWiki users on his blog and impersonating them. He has an obsessive habit of impersonating users he does not like and blaming his impersonations onto others. I have counted 102 banned sock-puppets that Abd has created on RationalWiki in the last 8 months.

Actually, I have created something three or four socks or so, for legitimate purposes (such as to inform a user that they have been impersonated elsewhere. As an example, on a medical blog, a RatWiki user was impersonated, so I created a sock to ask him if it was him; it was not. The creation of socks like that is a Darryl Smith trademark, and the blog was a blog of one of his targets. When I create a legitimate sock, it is blocked by Darryl (who usually has sysop privileges there) and a large pile of imitation impersonations appear, threatening users with lawsuits, claiming that Lomax will harass them, etc. The fact is that the Smiths were known for this long before I appeared. The person counting my alleged socks has done it on RatWiki. Who else cares? It’s Darryl L. Smith, also known as Debunking spiritualism on RatWiki, Skeptic from Britain on Wikipedia, who created a big mess in December — tagged by Jimbo as a POV pusher — using that account’s retirement to attack a user who had criticized him on his talk page by creating socks outing himself as that person. then claiming he was retiring because of the outing. Clever, eh? Actually, vicious. Here is the story: http://coldfusioncommunity.net/anglo-pyramidologist/darryl-l-smith/skeptic-from-britain/

As for his next move, he wrote recently he is hiring a lawyer from money he will obtain from CrowdFundMe campaign he is starting.

Where did I write that? I write a lot, and may indeed start a GoFundMe campaign. There already is one, raising funds for journalism expenses. I don’t want to mix that with the WMF crap.

His only supporter on the internet is Mikemikev a neo-nazi he has defended.

I have not been supported by Mikemikev. I have only pointed out that certain alleged Mikemikev socks have not been him, which is obvious to anyone who actually investigates this situation.  I know that some Wikipedia socks alleged to be Mikemikev have not been him. The creator of the LTA page for Mikemikev would be Oliver Smith (i.e., the original Anglo Pyramidologist), as Stronghold1990

Apparently if someone gets banned from Wikipedia Abd will become friendly with (even if they are a nazi). I personally do not see his lawsuit going anywhere. This is an lolsuit. The man needs to get off the internet for a few days and get a reality check. No doubt he is following this discussion and will write 10, million words about it all and how he is being “harassed”. Anon63622 (talk) 04:25, 6 April 2019 (UTC)

I simply document what I see and add what I know. This is not harassing me. I was encouraged to file by a relative who is a paralegal with extensive experience. It’s a real lawsuit, it doesn’t have to “go anywhere.” The WMF will decide how to respond. By the way, a mail sent by the clerk to me was returned to them, but the address was correct (they phoned me to ask about it). They sent it again, and I got it, but someone looking at the docket might think that I had disappeared or something.

The WMF will have a certain amount of time to respond, or a default could be declared. The ban policy of “ignore them” is not going to work for this. The TOS protections also don’t apply, because the TOS does not allow them to libel me, and the restrictions they set up (must file in California, only have a year, and $1000 limit on damages) are irrelevant for an action for defamation by them. I warned them about office bans for years, that it was a slippery slope, they were losing their service provider protections. Deaf ears.

I notice that absent from your narrative are any mention of list of names redacted etc. who figure prominently in Abd’s version of events.

Mikeu redacted the names. Here is the original text.

I notice that absent from your narrative are any mention of Darryl L. Smith, Ben Steigmann, Anglo Pyramidologist, Goblin Face, Blastikus, Oliver Smith, JzG, Joshua P. Schroeder, Michael Umbricht, John66, Emil Kirkegaard, etc. who figure prominently in Abd’s version of events.

Anyway, people were saying James Damore’s litigation against Google was an lolsuit too, and you saw how that went. (talk) 04:50, 6 April 2019 (UTC)

Note: I redacted the list of names above. Please do not enable his problematic behavior by repeating it on-wiki. This results in a great deal of cross-wiki disruption. A checkuser discovered that the account that left a notification of the lawsuit on my talk page had numerous sleeper sockpuppet accounts.[10] We caught this before they could act. Not only do these actions have real world consquences but they also are a drain on the energy of the community. The more people who amplify his actions, and those of his friends, the more work for our staff to followup. I’d rather spend my time creating content instead of cleaning up a mess. Disclosure: my name was in that list but my identity is hardly a secret. I don’t much care if anyone reverts my edit but I am very sympathetic to the harassed contributors who have reached out to me requesting help. The volunteers who improve our projects are our most vital asset and deserve to be treated with respect. signed John Doe #N —mikeu talk 01:22, 7 April 2019 (UTC)

I still do not know if Mike is one of the John Does. Making stupid or even biased decisions as a bureaucrat is not a basis for a lawsuit. The list is not my list, it is that of another observer, I don’t know who it is, though I have a suspicion. Mikeu had been inactive for a long time, dropped in in the middle of the mess, having no apparently clue about what was happening, but having been emailed, wielded a meat-axe to prohibit the study of fringe on Wikiversity, even when neutrally presented and framed, and where it had not been disruptive at all, blocked me for fixing an issue — creating consensus — where he was involved, decided I had a long block log, though there had been no problems for a long time, blocked me for a vendetta that wasn’t, it was normal documentation of sock puppetry and canvassing, complained about a personal vendetta on meta in a checkuser request that was one of a long series of successful identification of socks, and where another Wikiversity sysop had added much material to it, and then, when I was globally banned, disappeared. He was not there to create content, he was there to be a bully to support other bullies, and he bragged about it on Wikipedia. He has created very little content anywhere, he was only a bureaucrat because he volunteered in the very early days.

Is it possible that one of Abd’s enemies tried to manipulate you into having this very reaction by placing that notification, as a joe job move? That was what Abd claimed in his 18 March blog post was likely going on. (talk) 01:54, 7 April 2019 (UTC)

Gee, is it possible or is it obvious? The sock puppetry patterns match Darryl Smith socking, the same as on RationalWiki. Names are chosen that are totally obvious. I have rarely created socks and I have almost always confirmed them. There have been non-disruptive socks created with obvious names. In fact, I still have one on Wikipedia that I could use to email users. So what? I’m not going to use it. The WMF global ban prohibits all access, under any name or by any means. It even prohibits anyone from accessing Wikipedia or contacting Wikipedians on my behalf, which is a bridge too far, my opinion, but I’m not going to test it without clear reason. (I have not asked anyone to edit Wikipedia or contact Wikipedians on my behalf. Anyone who does this is doing it on their own initiative. I have only provided information, either verifiable (it gets long because of that) or I will provide verification on request.
Those joe job accounts lied. Typical., you should not be mentioning real life names taken from Abd’s blog. This is one of the reasons Abd has been banned all over the internet. He tries to connect peoples real life identities with anonymous online accounts, he then claims he knows “100%” who the accounts belong to and digs up where these people work, but offers nothing more than his opinion.

Who is this? There are two people involved in the mess I encountered in 2017: Oliver and Darryl Smith. Oliver has been open about his identity at times, and he is apparently being sued, so he tried to have articles he had written taken down on RatWiki, and as part of that, he confirmed the obvious, that he was indeed the original author. After a long time of being considered a valuable contributor there, he is finally being blocked rather quickly. His brother, if it is his brother, is still active, and is almost certainly the Smith brother active here, the one who obsessively follows everything I write, and then drastically misrepresents it to an audience that almost never checks and compares.

I have offered far more than my opinion, I have extensively documented the very specific traits and activities of these two (known on Wikipedia as Anglo Pyramidolist, and it does appear that the original claim that there were two brothers was true, not merely a “my brother did it” excuse. However, at one point last year, Oliver — using a verified email — claimed that it was all him, he had lied on Wikipedia and he had lied to Tim Farley (about what? he didn’t say, but the communications would be about skeptic activism and probably financial support, but Farley would know best. Farley does not necessarily know what these brothers have done, and probably would not approve.

It is very dangerous business because he has no proof, only his speculations.

That is what the creators of fake news do, “They have no proof.” First of all, I have not claimed, in most cases, “proof.” I have claimed evidence, strong enough evidence to convince a jury or expert panel, if that ever arose. Sock puppetry, when it is large scale — as this has been — leaves clear marks, very difficult to avoid. Then there is the duck test, which is circumstantiial and which is subject to certain possible errors, but is also quite clear in this case. No, he’s lying, and he knows it.

In many cases he has turned out to be wrong (he claims RationalWiki users John66, Bongolian and David Gerard are all the same person – entirely wrong and he was forced to later admit that) but his leaking of real life names can effect people and their businesses.

I never claimed that those were the same, and I never suspected them of being the same. As I recall, I’m not checking now, I did a study of Bongolian as a control, against the edits of known Darryl Smith accounts and suspected ones. Bongolian was clearly distinct, there was no question about it. Claims that Bongolian was John66 were made by sock puppets on RationalWiki. Who created those socks and those claims? It’s obvious (but there is a minor possibility that this was very sophisticated impersonation of them. I’d testify under oath that it was not me. I’m a journalist, and lying would be career suicide.

If I make mistakes, all my work can be commented on and corrected through blog comments. (In spite of many troll comments, often impersonating RatWiki users. And that led me to create accounts to ask about them.)

As for JzG, he is an admin here. Abd has impersonated him on several blogs,

I have never impersonated JzG, I would not, and I’m not aware of impersonations, but I’ve been seeing claims on RatWiki that I’m massively active all over the internet, with impersonations. There is someone who has done that, often, historically. It’s not me. It’s the Smith brothers. Both of them have impersonated. I have proven some of it. No proof? That one was easy. Ask the impersonated person if it was them.

This is a Smith brother, likely Darryl from signs I can see.

as he has impersonated Roxy the dog.

Again, he knows I did not, because it was almost certainly him (I think I recall documenting an impersonation). He has been making accusations like this for a long time, almost never with evidence.

I do not trust Abd at all, he has recently been attacking @Alexbrn: on his blog. When you spend your life online attacking people like Abd it discredits his version of events which appear to be fictional.

This is someone deliberately concealing his identity by using a colocation web host. I’m a real person willing to go into court and attest under oath that I have evidence for my claims. The “attacks” are written documentation (“evidence”), sourced and verifiable, often with little interpretation or with minimal analysis (but on a blog, I also add opinion, it’s my privilege. I distinguish opinion and interpretation from fact.)

The Alexbrn reference would be to this page. science-and-medicine/sara-wilson-as-a-target-of-medical-fascism/

His entire lawsuit is basically about a grudge he holds because a group of “skeptical” editors submitted his cold fusion material for deletion.

That is his typical hostile mindreading. However, notice the lack of links. This troll does not want people looking at what actually happened. I didn’t care about that content, for itself, though one of the pages, a list of recent peer-reviewed sources on cold fusion, was widely cited. So this damaged many pages across the internet, and that page was rigorously neutral, and, in fact, that whole resource was neutral, but to those who don’t know the research in the field, it can look otherwise. These were wiki pages, open to editing, and anyone who questioned the neutrality could have objected. Deletion was not the method to be used on Wikiversity for non-neutral material, but mikeu had never participated in developing the methods for creating “inclusive neutrality.” It’s not at all difficult, I did it many times, and it totally defused conflict. What was offensive was the attack on a specific innocent user, who was impersonated and defamed by a sock master, who also filed checkuser reports on him and who then complained on Wikiversity about him, and this was steward-verified. And then what was more offensive was the attack on Wikiversity as a place where any topic could be studied. It was a place where neutrality was inclusive rather than exclusive, i.e., like academia rather than like an encyclopedia. No longer, because of mikeu.

My opinion is that wikis without protective structure are intrinsically vulnerable to this, I had already abandoned Wikiversity as a place to create content because of demonstrations that this was the case.

Perhaps @Roxy the dog: or @ජපස: or @Mu301: can weigh in on this because they have been attacked by Abd. 2607:F710:60:0:0:BA:0:2 (talk) 11:42, 6 April 2019 (UTC)

When and where? If I describe what someone has done, is that an “attack”? There is a page on this blog which has been described as an “attack on ජපස“. It is joshua-schroeder-on-pseudoscience-on-wikipedia/. Compare that to what has been routine commentary on me, on this very page, on RatWiki, on Encyclopedia Dramatica, and, in fact, in comments all over the internet and then consider who, by comparison, is engaged in a “vendetta.”

Cos I was asked, I believe abd’s attacks on me are as effective in making a difference as a sparrow’s fart. –Roxy,the dog. wooF 12:17, 6 April 2019 (UTC)

Has he read these alleged attacks? Would he be so kind, then, to point to them? If I wrote something inappropriate, I can correct it. Roxy is active, my sense, in what calls itself the skeptical project or faction, which, my opinion, is, as organized and active, pseudoskeptical, “believing in the mainstream.” Which is not scientific skepticism. Science is not about belief at all.

It doesn’t surprise me if Abd made some false sockpuppetry allegations based on a dubious interpretation of evidence. I doubt he did it maliciously, though. He’s not the only Wikipedian to make that mistake; it happens all the time that SPIs are closed as “unrelated” because someone’s suspicions turned out to be unfounded. That’s just kind of a routine occurrence.

Yes, one would think. However, I have reported on hundreds of socks, and very few have been shown to be someone else. If contrary evidence appears, I report it. “Unrelated,” by the way, is not always conclusive, unless there are extensive edits. Some users become skilled at creating false impressions. I distinguish between suspicion and conclusion. I report evidence and am not the final judge, but I do, after seeing a great deal of evidence, come to conclusions, which often include alternate interpretations. For example, I have concluded that there really are two brothers, that Oliver was lying to protect his brother, who has made a career of being a “skeptical editor,” attacking “pseudoscience” and “quackery” and, lately certain skepticisms that offend Big Pharma, which has far more resources than the “skeptical organizations” originally served, but I do keep in mind the alternate interpretation, that Oliver, admittedly schizophrenic, actually is the only one. However, the strong preponderance of the evidence is that there are two.

And that can complicate checkuser, because these brothers do back each other up, and there is crossover. So far, though, I don’t see Oliver as appearing in this discussion.
As well, there are indications of another anonymous person who has occasionally edited in support of Darryl. Independent SPAs can be difficult to distinguish in a massive cloud of socks.

I think it is debatable how much good can come from banning people for outing users off-wiki. It obviously hasn’t stopped Abd from continuing to do it, because his SanFranBan doesn’t affect what he does on non-Wikimedia platforms.

Again, I don’t know who this is. There are several possibilities, actually. What he is writing is obvious.

And if Abd had anonymously outed people, maybe it would not have even been possible to hold him accountable.

Wikipedians are accustomed to anonymous trolls. Then, too often, they treat persons open about identity as if they were trolls. Internet trolling is such a problem because of anonymity, which somehow got enshrined on Wikipedia, and this is the original factor that will keep Wikipedia from ever becoming reliable. Reliable source cannot be anonymous. The police allow anonymous tips, but they are never evidence, and, in court, all evidence must be personally attested or it is not admissible. In Academia, anonymous sources are meaningless unless fully and completely verifiable, but wikis accept the testimony of anonymous users sometimes without question.
The most serious “outing” was that JPS affair, though it probably caused no harm, and the true outing, that was made indelible through archive.is, was by the Smith troll. Otherwise when I convinced that web admin to remove it, it would all have been gone. And I asked a former WMF board member about this, and he did not think it would rise to the level that would lead the WMF to act. But without knowing what the exact complaints were, I cannot know. After all, outing like that has been common on Wikipedia Review and Wikipediocracy — and Encyclopedia Dramatica.

Because of this type of situation, users who want to keep their IRL identities secret should practice due diligence in not making it easy for people to out them, since the admins and Wikimedia have limited power to control the spread of information that a user has put out there about himself.

I don’t think impersonation is part of Abd’s playbook; he is not known for being a manipulative guy. Some of his adversaries do have that reputation, though, and therefore it wouldn’t surprise me if an impersonator framed Abd for impersonation. (talk) 12:52, 6 April 2019 (UTC)

I was not accused of impersonation, ever, before the Smiths created impersonation socks. Impersonation is deeply offensive. I confronted it on usenet as a moderator, because people can die when others believe an impersonation is real. Yet these accusers claim that this is a long-term behavior. It’s recognizable as a lie if anyone actuallyh looks at my history.

  • I am one of the anonymous John Doe’s listed in Abd’s filing. Thankfully he does not have my real name and I only ever used an IP to edit Wikipedia.

    This is fascinating. So, this person complained to the WMF. About what?

    Abd wrote some negative things about my IP on his blog and some deliberately false claims about me claiming I was someone else and posting someones business details.

    This would narrow him to certain IPs. And does he own the IP? Is it stable? There were certain IPs that were a mobile service provider in a small region in England, and used by Darryl in obvious socking. What claims? What stops this user from being specific?

    Well, Darryl is almost never specific, particularly if being specific would lead people to realize the truth.

    I sent a complaint to the Wikimedia Health and Safety about his revealing of private information.

    What private information? If I falsely claimed that the IP was someone else, how was this his private information? It would merely be wrong, like many claims that an IP is a blocked user, when it is not. Do realize that the claims I made eventually became that all this disruption was by one of the Anglo Pyramidologist socks, so these were like any report of disruptive socking with a request for checkuser.

    You say above “and if Abd had anonymously outed people, maybe it would not have even been possible to hold him accountable,” this is wrong, he is entirely accountable.

    The Smiths are not terribly smart, and if this is a meat puppet, as is the other reasonable possibility, not terribly smart either. The anon did not claim I was not accountable, I am, for what I do openly or privately, but that it might not be possible to hold me accountable.

    He has no reason for doing it, other than harassment. It is not acceptable to be posting where anonymous online users live or work or trying to make those connections. Max Redhill (talk) 20:06, 6 April 2019 (UTC)

    Now, is this harassment? Am I being harassed by these comments? That’s a question. From my point of view, these people are revealing the reality of how they think and how they act. It is an opportunity for anyone who cares to see what I have seen since 2017. Most people don’t really care. Reality is too boring, they think, if it involves actually looking at evidence.

    With every IP contributions display is a geolocation tab. Why? Isn’t that revealing private information?

    In addressing disruption, checkusers routinely look at those things, and others often do, you can see it in many SPI archives. I have never posted where “anonymous online users work.” I did post, one time, where a user who is not anonymous, having openly revealed his identity, had worked. It was off wiki, not using my WMF account at all, and not causing any actual harm.

    These trolls have, on occasion, contacted employers, they engage in real-life harassment. The mother of one of their targets was fired because of emails they sent, and Oliver, in particular, admitted sending the mail, he merely claimed “I did not ask them to fire her.” These users are vicious, they write defamatory articles on RatWiki, using cherry-picked and out-of-context evidence, entirely misleading, and then feed this to reporters for media, and on occasion, that information is not carefully checked and has shown up in print. Serious accusations!

    What I was getting at was, the people who have been banned for off-wiki harassment, outing, etc. have been those who linked those activities to their own Wikipedia account. Another example would be michaeldsuarez, who made it known that he edited Dramatica as JuniusThaddeus. But not every harasser or outer does that, so not all are held accountable. (talk) 20:21, 6 April 2019 (UTC)

    I don’t know who this guy is – his dramas seem to have happened over the many years time I wasn’t actively editing Wikipedia. But seeing this name, I notice a twitter user named @abdlomax has been favourite-ing tweets where I’ve been under attack over Wikipedia (for background see here). Also during all the low-carbohydrate diet drama centred on Skeptic from Britain I (and presumably a number of other WP editors) were being impersonated on one of the blogs covering the drama, in what looked like shit-stirring (for background see here). What can it all mean? Alexbrn (talk) 16:50, 6 April 2019 (UTC)

    Ah, thanks. That user is me, but I see only one favorite. This conflation of a single action to many is common with abusive users. Skeptic from Britain was not impersonated anywhere, but himself created accusations that he was a user who had criticized him. This is classic Smith MO. So, Alexbrn was impersonated.  See a page that documents many comment impersonations on the Malcolm Kendrick blog.

So was Guy Chapman. That comment was blatantly impersonation. It confirmed the false accusation against ME. Guy (JzG) is not that stupid.

Might want to ask the man himself at abdlomax@yahoo.com, which is the email address he has been at for years, and which is listed in the complaint. In anything Abd-related, I would caution against making assumptions about authorship, given the amount of impersonation that has been alleged. (talk) 19:15, 6 April 2019 (UTC)

Yes, and that is quite general about the internet, and email received. Assumptions about authorship can cause a great deal of damage.

I am aware of the lawsuit. I personally consider it frivolous and an attempt to harass and intimidate. My block of Abd was justified and long overdue.[16] Ping me if you have a specific question regarding his activity at en-wv and/or the actions that I/we have taken to prevent disruption of our project. I can neither confirm nor deny that I am a “John Doe” in this case as I have not received any official notification off-wiki. I am not at liberty to comment further on ongoing litigation nor can I comment on some of the specifics of this block due to WMF confidentiality requirements. (My block was primarily based on on-wiki activity, however the duration of the block was significantly adjusted to take into account privately expressed concerns which would be inappropriate to share publicly.) —mikeu talk 16:58, 6 April 2019 (UTC)
Actually, here, Mike did effectively claim to be a John Doe. No he would not be notified until I have clear evidence as to what he actually did, though I could go ahead and amend the complaint based on “information and belief,” and then discovery would include his being asked questions under oath. Mike is here confirming what he wrote before, his actions were based on privately expressed concerns. Those would be libelous. There was no vendetta, there was an attempt to protect the wiki. There was an admin there who expressed an intention to unblock. The information I have is that he was threatened with desysop. There is block and ban process on Wikiversity, which was not followed. Deletion process was also bypassed by Mike. There were lies in the deletion request, confronted by others. There was canvassing of Wikipedia users who were clueless about Wikiversity purposes, practice, and policy.
But that would merely be incompetent administration, which this affair exposed abundantly. As I have mentioned, I already had decided to abandon putting work into Wikiversity, because it was too dangerous as a place to build content. I had already moved away, toward, for example, writing for publication under peer review, and blogging, and Quora for page views. Far better. Quora is not totally safe, but much safer than WMF wikis. I have 4 million page views there and 2000 followers, which is better than anything I ever did on Wikiversity (though my best work there was never deleted, I’m wondering if they will go for that, too.)
On Wikiversity, I had demonstrated how to create neutral resources, in the presence of strong differences of opinion. It’s actually easy to do there, with attribution. Wikiversity is much more like a university library than an encyclopedia. Or was until Mike demolished the principles that had been followed for about 15 years.
  • So I know there are a bunch of links here, and the gist I got is that this is a person who has banned for OUTing users, but who exactly is Abd and what is he trying to get out of this lawsuit? By who, I mean as a Wikipedia user and other known off-wiki accounts of his.—CYBERPOWER (Chat) 17:03, 7 April 2019 (UTC)

    I outed nobody on WMF wikis. I have not edited Wikipedia since 2011 or so. This blog is  owned by Infusion Institute, Inc, but I am admin and do use the blog for topics not always related to cold fusion.  I have these other accounts:

  • WMF wikis: Abd (currently office-banned, unknown offense)
  • RationalWiki: Abd (currently blocked, considered banned but the ordinary process was followed.
  • Quora: Abd-Ul-Rahman-Lomax
  • Encyclopedia Dramatica: Abd (currently blocked, standard ED lulz)
  • Twitter: Abd ul-Rahman Lomax (used very little)
  • Wikipedia Review: Abd
  • Wikipediocracy: Abd (banned, reason not given, years ago, but context was confronting libel of Wikipedia users by a popular user there, still active. No life.)
  • WikipediaSucks: Abd

There are many, many other accounts. Since the early 2000s, I used my Muslim name deliberately, to make a point. Before that there were other accounts. I was a usernet moderator for soc.religion.islam, never, and was a forum moderator on The WELL in the 1980s.

Jimbo Wales commented, and what he wrote was no surprise.

As suggested by others, I can’t really comment on ongoing legal matters. I should also add that in general, for routine legal matters, they are handled by our very competent legal staff and don’t necessarily rise to the level requiring board attention.–Jimbo Wales (talk) 13:11, 8 April 2019 (UTC)

It is still a question as to why this discussion was held on his Talk page. I had good email communication with Wales years ago. I have not attempted to contact him since. I would also advise him to clear any contact with me with counsel, but he could communicate with me with counsel on cc or previewing it, if he wants. One of my email addresses is in the Complaint. I once spoke about my concepts for creating efficient consensus negotiation on Wikipedia, at a WikiConference in New York, before I was WP banned, and he was taking notes. but I don’t know that he ever understood the proposals.


If there are any questions, I am easy to contact. I will see any comment on this blog, for example, and if a real email address is used, and response is requested, I will respond.

Now, what am I trying to get? I don’t try, I do, but a lawsuit involves a “prayer for relief.”

Read the thing.


Had the Foundation been willing to communicate with me, this might all have been easily settled. But their policy is that if they — privately, based on private allegations, without warning (either as to improper behavior or or intention to ban) or explanation, decide to ban, they do not communicate with the user, they do not reply and they state only that the ban is not appealable. But they publish it, and only ban a very limited number of people, most of whom are known or accused of serious offenses or conditions, such as pedophiles or accused pedophiles, or extensive harassers. Even in those cases, the policy is, ah, not actually protective and may in fact, increase risk. But that is mere stupidity, not libel. The fact of the ban can be, in context, a libel in itself, and that is what this case is testing.

This is being discussed on Wikipediocracy, initially openly, but now privately. If anyone wishes to reveal that to me (privately if desired), I’d appreciate it. (I have never attempted to create a sock account there, though that’s easy to do. Unless there is necessity, I do not sock. Merely being banned does not create a necessity. Others being impersonated can.) The open discussion I have covered on this subpage.

Wikipediocracy discussion

Wikipedia on cold fusion patents

This is a subpage of jcmns/v13/p118, a review of an article by David French on Patents and Cold Fusion



Although details have not surfaced, it appears that the University of Utah forced the 23 March 1989 Fleischmann and Pons announcement to establish priority over the discovery and its patents before the joint publication with Jones.[30] The Massachusetts Institute of Technology (MIT) announced on 12 April 1989 that it had applied for its own patents based on theoretical work of one of its researchers, Peter L. Hagelstein, who had been sending papers to journals from the 5 to 12 April.[174] On 2 December 1993 the University of Utah licensed all its cold fusion patents to ENECO, a new company created to profit from cold fusion discoveries,[175] and in March 1998 it said that it would no longer defend its patents.[75]

The U.S. Patent and Trademark Office (USPTO) now rejects patents claiming cold fusion.[88] Esther Kepplinger, the deputy commissioner of patents in 2004, said that this was done using the same argument as with perpetual motion machines: that they do not work.[88]

It’s a problem when Wikipedia alleges a current state of affairs with “now,” especially based on an old source. Reference 18 is to this article, from 2004. From that article, this:

… The U.S. Patent and Trademark Office has refused to grant a patent on any invention claiming cold fusion. According to Esther Kepplinger, the deputy commissioner of patents, this is for the same reason it wouldn’t give one for a perpetual motion machine: It doesn’t work.

This is popular language, not a legal position. Perpetual motion machines violate a strongly-held understanding of thermodynamics, so any claim of one is going to be met with skepticism, and if skepticism is broad and wide on a particular class of inventions, and if the USPTO notices this, and if an invention actually claims what is considered impossible (that is not the same as actually being impossible), it will require proof of utility and enablement. 

These problems, Hagelstein and McKubre argue, are all tied to the 1989 DOE review. While the report’s language was measured, pointing out the lack of experimental evidence, “it was absolutely the intention of most of the framers of that document to kill cold fusion,” McKubre says.

McKubre was probably correct about that intention, though the document itself was modified to avoid that, in theory (it actually recommended research). However, the intention, whatever it was, is irrelevant to the patent situation. What is the problem is a widespread belief that cold fusion experiments are not reliably reproducible, or not reliably reproduced from a specific protocol, or . And that belief happens to be reasonable, it’s also understood by many LENR researchers, and that bears directly on patentability.

Not all real effects are patentable. They must actually be useful, and not merely potentially useful at some point in the future, but in the present. The enabling description in the patent must be adequate to generate practical results, of practical utility, when implemented by a Person Having Ordinary Skill In The Art (PHOSITA), and not only that, the patent and evidence shown to the USPTO must be such as to convince such persons that the invention will work. (or at least is likely to work!)

There came to be, after that rushed 1989 report, plenty of experimental evidence that there was a real effect, and even that the effect was nuclear in nature. (Some of that evidence shows the reality without requiring reliability, through correlation; specifically, the effect is difficult to set up, but when it does occur, there are reliable correlates.)

[. . . ] According to McKubre, the reason cold fusion experiments can’t be reproduced on demand is a materials issue: It’s a matter of developing a form of palladium, or another metal, with the right mix of impurities. With help on that issue and more funding, he suggests, a small cold-fusion-powered heater or generator could be ready in as little as two years.

And that’s the rub. That “issue” is still unresolved. If it were resolved, the suggested possibility is not unreasonable. With such a material to specify, if it were creating reliable heat and if this heat were adequate for practical use, not merely measurable experimentally — which would be enough for science — then such a generator could be patented. Until then, once the substantial doubt has been raised, clear evidence is required to rebut the skepticism.

This is often considered unfair, because most patents don’t need to provide that kind of proof. However, the courts have again and again supported this position, and I have to agree that it is sensible. There are ways for inventors to proceed, if they actually have found a way to make a practical device.

Patent applications are required to show that the invention is “useful”, and this utility is dependent on the invention’s ability to function.[176] In general USPTO rejections on the sole grounds of the invention’s being “inoperative” are rare, since such rejections need to demonstrate “proof of total incapacity”,[176] and cases where those rejections are upheld in a Federal Court are even rarer: nevertheless, in 2000, a rejection of a cold fusion patent was appealed in a Federal Court and it was upheld, in part on the grounds that the inventor was unable to establish the utility of the invention.[176][notes 5]

Yes. (This is much better than what the article used to have on this topic, by the way.) Note 176 refers to In re Swartz, called “Swartz I” in the 2018 Swartz v. PATO rejection.

A U.S. patent might still be granted when given a different name to disassociate it from cold fusion,[177] though this strategy has had little success in the US: the same claims that need to be patented can identify it with cold fusion, and most of these patents cannot avoid mentioning Fleischmann and Pons’ research due to legal constraints, thus alerting the patent reviewer that it is a cold-fusion-related patent.[177]

The issue is not the name, so much as the claim. Patents have been granted which were cold-fusion related. One of the problems is that “cold fusion” is a loose popular name for the Fleischmann-Pons Heat Effect, and there is a large family of such effects, more commonly called Low Energy Nuclear Reactions, and that the “reactions” are nuclear in nature is a matter of theory, and only in a few instances, strong and direct evidence. Mostly what is seen is anomalous heat. “Little success in the US” is a bit misleading. Looking up the source, this was Voss, in Science, 1999, ‘New Physics’ Finds a Haven at the Patent Office and I doubt he understood the real situation (he seems to think that fringe science should not be patentable). Few cold fusion related patents had been granted by 1999, and there are fast-approval exceptions, for example for the age of the inventor. There are more, now. I don’t have the article (paywall). There was a sidebar, though, referring to Thomas Valone case. A Free Energy Enthusiast Seeks Like-Minded Colleagues. Valone won an arbitration with the USPTO. 

David Voss said in 1999 that some patents that closely resemble cold fusion processes, and that use materials used in cold fusion, have been granted by the USPTO.[178] The inventor of three such patents had his applications initially rejected when they were reviewed by experts in nuclear science; but then he rewrote the patents to focus more in the electrochemical parts so they would be reviewed instead by experts in electrochemistry, who approved them.[178][179]

Note 178 refers to Voss and gives the three patents:

US 5,616,219  US 5,628,886  US 5,672,259 are broken links. These work:  US5616219 US5628886 US5672259 .  These are Patterson patents. My understanding is that these were issued under a fast-track rule for inventors over 70 years old. So these have nothing to do with normal Patent Office practice.

Note 178 refers to a Law Review article, which I found of high interest. 2006 Wis. L. Rev. 1275 (2006) They cite an Internet Archive copy, this is the original publication: A Case Study of Inoperable Inventions: Why is the USPTO Patenting Pseudoscience, Daniel Rislove. Rislove covers the patenting of inoperable inventions, recognizes the difficulties involved, but seems to think that nevertheless the USPTO should protect the public by not issuing patents to “pseudoscientific” inventions. However, the mission of the Patent Office is not to protect the public, but to benefit inventors. The problem is that the issuance of a patent can appear to support an inventor’s claim of legitimacy, in some cases. The problem is actually public ignorance and the ability of some inventors to deceive the public or investors as to the utility of their inventions, by the fact of a patent. Rislove seems to believe that that problem is insoluble, therefore the Patent Office should avoid harm to the public by taking greater care to reject inoperable inventions. But this will raise costs to inventors, and can also harm the public (he is aware that what is considered impossible might not actually be so. Perhaps an invention operates by an unknown principle, instead of what the inventor thinks. Patents are not scientific theories, and are not “pseudoscientific,” if described accurately.

The FDA is mentioned, but the mission of the FDA is to protect the public. At least in theory! There are other legal institutions that can protect the public from fraud and fakery. On the patent issue, every patent could be accompanied by a disclaimer that the patent does not guarantee operability or suitability for purpose. It could be made a form of fraud to claim that a patent shows these things.

When asked about the resemblance to cold fusion, the patent holder said that it used nuclear processes involving “new nuclear physics” unrelated to cold fusion.[178]

The quoted phrase is not found in source 178. Rislove does cite Voss so maybe the Wikipedia editor was confused. However, that would be a generic argument. “New nuclear physics” is not inherently incredible. “Cold fusion” conjures up a specific idea that is probably impossible under the relevant conditions. But there can always be new physics, including new nuclear physics. It’s merely unlikely, and until and unless the new physics is confirmed, the USPTO may have a basis for challenging it. But it is not clear to me that this right is actually useful for the purposes of patent law. Such rejections, as Rislove points out, are rare, but plenty of garbage is patented.

Melvin Miles was granted in 2004 a patent for a cold fusion device, and in 2007 he described his efforts to remove all instances of “cold fusion” from the patent description to avoid having it rejected outright.[180]

The source is an article, Cold fusion is back at the American Chemical Society It quotes Miles:

Miles is also careful to avoid using the words ‘cold fusion’. “There are code names you can use,” he says. In 2004 Miles and colleagues were granted a US patent for a palladium material doped with boron for use in low-energy nuclear reactions, but if the patent application contained the CF words it would never have been granted, Miles says. “We kind of disguised what we did.”

The Wikipedia link for the patent is dead. US6764561B1 Remarkably, though, the patent does cover the use of his material for generating energy. My emphasis:

The present invention generally relates to processes for the production of a high-strength alloy that may be used as a gas purification membrane, as an electrode for numerous applications including the generation of heat energy or other electrochemical processes, and more particularly to the preparation and use of two-phase palladium-boron alloys which have greater strength and hardness than other palladium metals or alloys and which thus can be advantageously utilized in a variety of applications including hydrogen purification membranes or electrodes.

And then in the Background, again my emphasis:

. . . the demand for energy increases each year while the world’s natural energy sources such as fossil fuels are finite and are being used up. Accordingly, the development of alternative energy sources is very important and a number of potential new energy sources are under study. Although there have been many attempts to develop a palladium compound which can be utilized in processes to generate heat, such as through the introduction of aqueous deuterium, none of these attempts have been successful or repeatable, and there is thus a distinct need to develop palladium alloys which can be utilized for the generation of heat as a potential energy source.

So he is claiming a possible use, but not standing the patent on “nuclear reactions,” even though he is obviously talking about what is known as “cold fusion.” He is centrally claiming an alloy with multiple uses. It is not “incredible” that an alloy can be made. The utility of such an alloy might be claimed, but this is where the burden of proof would be on the USPTO, to show that it is not useful.

At least one patent related to cold fusion has been granted by the European Patent Office.[181]

The Davis patent I have cited elsewhere, which is a US patent which clearly cited Fleischmann and Pons, also cites this patent, EP0568118, “Process for storing hydrogen, and apparatus for cold nuclear fusion and method for generating heat energy, using the process.” application 1990, granted to Canon in 1993.

There are other European patents, for sure, but Wikipedia can only cite what is in reliable secondary sources, and the source here was a 1994 article in New Scientist.

A patent only legally prevents others from using or benefiting from one’s invention. However, the general public perceives a patent as a stamp of approval, and a holder of three cold fusion patents said the patents were very valuable and had helped in getting investments.[178]

Yes. Patents are not stamps of approval. Period. You want approval, for safety, go to Underwriter’s Laboratories. For drugs, go to the Food and Drug Administration (in the U.S). For investment in cold fusion inventions, scream and run in the opposite direction unless you have experts with you. Even scientists have been fooled by “demonstrations.”

What is required for validation is verification by independent experts, in circumstances under the control of those experts. For an investor, the most important word in this is “independent.” Cold fusion is not impossible, we know that, because of controlled experiment, multiply confirmed. (But the word “fusion” could still be misleading.) As it stands, a lot of very smart people have worked for decades to create reliable devices and they have failed. So a reliable cold fusion device is quite unexpected. The US Patent Office, rightly or wrongly, wants to see proof of utility and enablement, and if you actually have such a device, proving it should not be all that difficult. Unless you want to keep secrets, or don’t actually have something reliable, then it could be impossible.

Patents and Cold Fusion

Subpage of JCMNS/V13

Copy of paper.  (103 KB)

Copy of paper as linked within the journal. (23.2 MB)

J. Condensed Matter Nucl. Sci. 13 (2014) 118–126
Research Article

David J. French
CEO of Second Counsel Services, Ottawa, Canada
∗E-mail: David.French@SecondCounsel.com

Patents are available for any arrangement that exploits Cold Fusion. The arrangement must incorporate a feature which is new. However, for Cold Fusion inventions the Patent Office may require proof that the procedures described in the patent actually work. And the description must be sufficient to enable others to duplicate the invention.
© 2014 ISCMNS. All rights reserved. ISSN 2227-3123
Keywords: Cold fusion, Description, Patents, Utility

Copy of paper.

Review and commentary.

That first sentence in the abstract contradicts common ideas about cold fusion. See a study of the Wikipedia article on cold fusion, the section on patents.

From the article:

. . . You must have a successful technology before a patent becomes relevant. But if you do have such a technology success, patents can enhance the profitability of marketing that technology. Patents enhance profitability by allowing producers to charge customers more for the product.

Notice: “successful technology.” A patent that does not work is not a “successful technology.” If one has a successful technology, it should not be difficult to obtain a patent, provided that it is new, even if it’s about “cold fusion.” But mentioning “cold fusion” may be a bad idea. If the thing works, saying “cold fusion” will not make it work better. Nor, if it works, and it turns out that cold fusion is completely bogus, will  the technology become useless. After all, it works! Maybe it works by something as yet completely unknown, and many, many inventions were like that. It is not necessary to have a theory to patent a device that produces useful results.

Yes, if one has a plausible theory — and “plausible” means as it will appear to a Patent Examiner — it might help to state the theory. But while some scientific journals have rejected papers on cold fusion for lack of an explanatory theory, that’s not how patents normally work. A patent describes a device, how to make it, such that it can be made with no further instructions, by any Person Having Ordinary Skill in the Art (PHOSITA), but the underlying physical laws need not be mentioned at all.

An if a theory is proposed that is considered incredible, and “cold fusion” represents a theory explaining heat that is widely considered that way, an invention that actually works might be challenged. I.e., if the stated use of the invention is to “create cold fusion,” and even if the device actually sets up the Anomalous Heat Effect, it will almost certainly be challenged and proof demanded. Yet claiming anomalous heat might be possible, even more likely to succeed, though still tricky, would be claiming a use for investigating reports of anomalous heat. Those exist (“reports”!) and millions of dollars have been spent investigating them. But if “cold fusion” is mentioned, the patent runs a high risk of not surviving challenge, at this point.

David is correct, patents are available, but not if one pokes the examiner in the eye. They don’t like that. I would recommend that any inventor tempted to patent a cold fusion device study the cases, I’m providing some resources here for that, and find a patent agent familiar with cold fusion issues. It’s possible to file without an agent, but … if you really have something, and file without skill, you could lose . . . how much did you say this patent could be worth?

A trillion dollars? Yes, you could lose a trillion dollars, billions at least, by filing and prosecuting the patent incompetently, if what you have is actually a useful application for cold fusion. So get help or study well and thoroughly, and don’t be fooled, because, as Feynman said, you are the easiest person to fool.

Okay, I’ve got an idea for a device to demonstrate cold nuclear reactions at home. A science toy, basically. Some scientific papers are being written about what amounts to cold fusion science toys, at best. They might be quite useful for investigating the effects. But not for “generating energy” in useful quantity. I might get away with mentioning “cold fusion,” if I don’t mention energy generation. In fact, there is a patent issued for generating particles, including neutrons. Granted. Making a few neutrons is remarkable, to be sure, but not known widely as “impossible.” And more to the point, not known to be very difficult to replicate.

But the value of the patent and its ability to deliver enhanced profits only arise if the business itself is delivering a successful product to the marketplace. Patents cannot enhance profits if the product itself is not a success.

We have seen an inventor spend almost thirty years attempting to win patents for inventions originally filed as applications in 1989. Those devices, were they useful as originally claimed, would have been successful products by now, because the patent process, while pending, does not prevent an inventor from developing the product. On the other hand, if the product as described in the patent isn’t adequate, if more experimentation is needed to make it practical, it was actually not patentable, if that were known as a fact.

As I’ve been reading, if the patent as filed is inadequate, there is a limited time in which to correct that, before the opportunity is lost. You can file a new patent, based on those “improvements.” It can be tricky, whether or not to cite the original filing for “priority date.” You have a period of time where the patent application is secret. If you cannot reasonably expect to complete the necessary tweaks to make successful devices, within that time, it would probably be better to postpone application. You don’t yet have a technology that is patentable.

But if you avoid hot-button claims (and “cold fusion” is certainly one), then you can go ahead and file and if your invention is not blatantly and obviously implausble — and even sometimes if it is! — you can get a patent. And with that and a nice frame, you can have an impressive wall decoration.

Seriously, before diving into a patent declaration, find trustworthy and knowledgeable people to discuss it with. If this is about cold fusion, I can’t commit David French, but he talks with many people about cold fusion patents. If one has questions about this, I’d be happy to look at them, but, please do remember, IANAL, I Am Not A Lawyer. I merely know some, and have some experience watching them in action, and reading case law.

(1) There must be a feature or aspect of the arrangement which is new; a difference [2],
(2) The arrangement must actually work and deliver a useful result, and
(3) The patent disclosure document that accompanies a patent application must describe how others can obtain the promised useful result [3].
Those are the three requirements for patenting. They are simply stated but require careful contemplation to appreciate their effect completely.

I want to underscore “careful contemplation.” “Useful result” can be subjective. If an extraordinary (implausible) claim is not made, the USPTO will largely accept the inventor’s word that the arrangement is useful. But if a challenge for lack of utility is made on the basis of widespread scientific opinion, even if that opinion might be nothing more than a glorified rumor sometimes written in books, not actually scientifically verified, the USPTO has the right to demand proof of utility.

The same is true for enablement, the description of how “others can obtained the promised useful result.” The examiner practice manual suggests that if an application is rejected for lack of utility, that it also be rejected for enablement. These are intimately connected.

In the case of Cold Fusion, the Patent Office is also concerned about whether the new arrangement actually works and has been described in a manner that will enable others to achieve the promised results. This concern is not restricted only to patent applications directed to Cold Fusion technology. It exists for all inventions where the represented utility of the invention is dubious [4].

The basic problem with cold fusion, from day one, has been reproducibility. Pons and Fleischmann applied for patents March 13, 1989, before the press conference March 23. The rejection of cold fusion was largely a result of many “negative replications.” But … those were often based on very shallow information about the FP experiment. One of the patents filed: Method and Apparatus for Power Generation.

Fact obvious in hindsight. Pons and Fleischmann did not have a method of generating useful power. We still don’t. The patent does not describe how to make a device that will reliably accomplish that, unless one of the many speculations were to pan out, but they didn’t pan out, if they ever will, in time to rescue the patent. The theory in the patent was wrong. Their neutron results were an error. That neutron report then caused many would-be replicators to look only for neutrons, avoiding messy heat measurement. It was a perfect storm.

There has been a lot of discussion, and criticism, of the United States Patent Office for refusing to grant patents that address Cold Fusion inventions. This is not as unreasonable as it may first seem. A patent can only validly issue for an arrangement that delivers the useful result promised in the disclosure. Normally Examiners take it for granted that the applicant’s description of a machine or process meets this requirement. But at any time, if an Examiner has good reason to suspect that the promised useful result is not available, or if the Examiner simply suspects that the disclosure is inadequate to allow other people to build the invention, then the Examiner may require that the applicant provide proof that these requirements are met [8].

It would be possible to modify the patent regulations to allow patents to be issued to protect inventions that don’t work. This is not the situation at this time. That is, many patents are issued for such inventions, but if a claim is made of something implausible, that doesn’t work, and suspicion is aroused in the examiner’s mind, the examiner may demand proof. The inventor’s statement and even some kinds of evidence, may not be enough.

If the problem of ignorant reliance on patents as some kind of approval were addressed directly, I find the harm of issuing unworkable patents obscure. Rather, the purpose of patents is to secure benefits for inventors, not to protect the public from phony inventions. Quite simply, the system doesn’t do that, examples abound. But this is a political problem. Legally, the examiners may do what they have been doing, and the functional response to a demand for proof is to provide the proof.

What has happened, though, is that at least one inventor has provided piles of evidence that the prejudice against cold fusion was wrong. That is not proof of the utility and enablement of his invention. That the inventor has degrees and recognition and has published papers is not evidence for these things, either.

If a general scientific consensus appeared that cold fusion was real, then the suspicion from a claim of cold fusion would no longer be reasonable and could be challenged, and probably successfully. That consensus has not appeared. There is an easing, to be sure, but not enough to transform how the USPTO views cold fusion.

In the case of applications that apparently are directed to perpetual motion mechanisms, the Examiner may require the applicant to provide evidence demonstrating that the system will work and that the description of how to achieve the useful objective of the invention is sufficient.

It’s important to recognize here that “perpetual motion” is a common example. Perpetual motion violates the laws of thermodynamics, which are regarded as fundamental, but, in theory, a perpetual motion machine (I’m not exactly sure what that is) that works and produces utility could be patented if adequate evidence of it working and being enabled in ithe patent were produced.

In other words, an apparent violation of the laws of thermodynamics could be allowed, with sufficient evidence. Producing that evidence has never been done.

Fortunately or unfortunately, patent applications that are directed to Cold Fusion effects are treated as if they were equivalent to a claim to perpetual motion [9].

I.e., as if the claim is implausible, there is evidence that it is implausible (such as many articles and books on cold fusion) and therefore it is reasonable for the examiner to question it and require proof.

This means that any applicant who proposes to patent a specific arrangement that will produce unexplained excess energy from Cold Fusion will be subject to a challenge from the Examiner who will say: “Prove it!” The burden then shifts to the applicant to file evidence from reliable sources confirming the key representations being made in the patent application.

Notice: evidence that “cold fusion” works from “reliable sources” doesn’t apply to the invention. The specific representations must be confirmed. There is no exact specific way of doing this, but I would imagine, were I an examiner, that I would want to see a report from an independent expert — or competent technologist, or anyone clearly credibiel — that they made the invention as described in the patent and found that it worked, making useful energy, if energy is claimed. It would not be enough to, say, buy a product and test it and report that it works. That would be evidence of utility, but not of enablement. But that’s just my thinking.

If you think about this last sentence, you will see that it is greatly in the interests of the patent applicant not to make extravagant representations in a patent application. In fact, you should never say that the invention is superior, cheaper or otherwise better in ways that will be hard to prove if challenged by the Examiner. It is sufficient to simply say: “I am achieving a useful result and there is something about what I am doing that is new.” A patent application is not a place to include a sales pitch.

I’m surprised to see some patents, apparently prepared by lawyers, that go on and on about theory, a complete distraction from what must be established, and if the theory is “incredible,” that could torpedo the patent. And it did.

French covers the Godes patent application. Godes, my guess, prepared this patent from his theory. The claim:

(To be continued)


Swartz comment

This is a subpage of Swartz v. PATO.

Mitchell Swartz, on his Cold Fusion Times  web site, has put up a series of “queries” or challenges to the recent U.S. Federal Court of Appeals that confirmed the dismissal of his lawsuit against the U.S. Patent Office. This is what he has, prominently, a set of images, one being text-as-image. I often wonder if some do that to make it difficult to copy and critique. Be that as it may:

These are, at least in part, rhetorical questions, incorporating rhetorical assumptions. When I learned of the appeals court decision, I looked at it, and created pages to study it, the top-level page being Swartz v. PATO, which includes the docket for the appeal and for the Virginia Federal Court where Mitchell filed.

Dr. Swartz kindly provided some of the documents, and I have been downloading more with my PACER account. Many of the filings are very large and will be expensive to download, so unless I have help and support, as I did before with Rossi v. Darden, my efforts may be limited. This case brings up important issues, easily misunderstood (as Mitchell may have misunderstood many of the problems he faced). Mitchell presented, over the years, voluminous evidence on the reality of LENR; unfortunately for his patents, the USPTO was looking for something far more specific, and most of that evidence was irrelevant, and when one submits mountains of irrelevant evidence, the useful needle in the haystack may go unnoticed. That’s reality and the legal system. Skill in presentation and argument matter, and this is why dealing with an issue of major economic import, pro se (without an attorney), is a Bad Idea. I will cover this on other pages; here I am looking at the questions and incorporated claims in that image.

Believe it or not, courts do not “investigate” in matters like this. Rather, the U.S. has an adversarial system, where plaintiffs and defendants investigate and present evidence; the court applies rules of procedure and evidence and advises the finder of fact, a jury, where a jury is demanded (as Mitchell did in his Complaint), as to what evidence it may consider and what factual questions it is to answer; in a civil case, this will be a determination of what they jury infers from the preponderance of the evidence. The jury does not investigate, and the court does not investigate, and it can be like pulling teeth to get judges to read the mountains of evidence sometimes provided (sometimes a fact is procedurally relevant, and if judges misunderstand the facts, they might err on procedure). In this case, mountains of evidence were provided before it was actually time. The result of that is often, I suspect, to irritate the judges. In this case, on appeal, no new evidence would be allowed, but that didn’t stop Mitchell from submitting it and then complaining when it was not considered.

Mitchell has developed a “story” of USPTO intransigence, prejudice, and massively unfair treatment. He’s been to court many times over this, and appears to have lost every time, which, of course, he ascribes to a conspiracy to suppress cold fusion, and “poisonous tree” refers, I think, to the idea which showed up in USPTO rulings long ago, that “cold fusion” was “impossible.” That is, in itself, a major topic, but the current operation of this is that the USPTO continues to assess the current state of wide scientific opinion as not yet contradicting the old opinions that they originally relied upon. The Patent Board of Appeals, in 2013, was still citing very early comments, when there is evidence of higher probity from later reviews, ignored. Why is that later evidence ignored? Has the point been made effectively? That’s a complex question; what I see is that in his filings in this case, Mitchell failed to make it clearly, and, more to the point, the overall view of cold fusion is not the cause of rejection. Rather, that view causes, they consider, a reasonable person to suspect that the claim is inoperable, not of adequate utility. Once that suspicion is raised, they may, by law, demand proof of utility. It doesn’t matter if the original reason for suspicion was “wrong.” They will want to see specific evidence of utility for the specific invention that is the subject of the relevant patent. If, instead, they are provided with mountains of evidence on the general issue of the reality of cold fusion, they will — properly! — ignore it.

Is it a “poisonous tree”? Is it causing cold fusion-related patents to be unfairly rejected? Maybe, sometimes, but skillfully-prosecuted patents have been granted, sometimes by procedural tricks that bypassed the “tree.” Further, a patent is not rejected for that reason alone; rather that reason (the “poison”) raises suspicion and legally, the burden of proof of utility then falls on the inventor. It is possible to avoid this by not making a claim considered impossible. Nevertheless, if the claim is essential, all that the shift of burden does is to protect the public from patents where it is considered likely to be a waste of time to attempt to use the patent for the stated purpose, and how that purpose is stated in the patent is crucial.

Mitchell made nuclear fusion claims from the beginning and it appears he tried to retroactively define a patent (“‘258”) as not related to cold fusion, but merely being about a method of measuring loading. I think he was right, that is, it has other relevance, but being right is not enough, as the case shows. If one argues “right” without skill, and with a flurry of irrelevant evidence and arguments, sometimes the true baby gets tossed with the bathwater.

“Panel” in the image refers to the Court of Appeals three-judge panel, which issued all of its decisions in this case “Per Curiam,” which means unanimously.

Mitchell clearly, and long ago, took a heavily adversarial role with the USPTO, accusing them of misbehavior. As a political reality, it can happen that bureaucrats will still deal with you fairly, but the probability of this goes down. Mitchell’s attitude may be responsible for his failure to successfully prosecute his patents. ‘258 may well have been patentable, the USPTO’s argument there is weakest, but I can see in the record that Mitchell set this up by how he applied for the patent, claiming utility for initiating a nuclear reaction. Oops!

That was not technically correct! Until the general scientific community accepts that the FP Heat Effect is nuclear in nature, in such a way that the USPTO can get the shift through their reasonably-thick skull, that claim sill sink a patent. Or one had better be able to prove it with an actual practical device, independently tested, etc., and fully described in the patent, no secrets required.

I did not see this in Mitchell’s own evidence, the relevant documents that I have seen so far were provided by the USPTO, which seemed to be operating on full disclosure, providing the only copies I see in the record of the DIA and DTRA reports, as an example . (Mitchell, to some extent, contradicts what was written in the original ‘258 patent application. As that application would be crucial to some of the arguments, and there are other possible missing documents, I am suspecting that Mitchell failed to attach a number of documents to his original Complaint (and did not notice it and then blamed the Court for not considering them, echoing his earlier conflicts with the USPTO). So, to Mitchell’s continued rant:

To make sense of “187,” I needed to look it up. This is slang for “murder,” after Section 197 of the California Penal Code. Then “Quarie” only makes sense as a bizarrely misspelled “Query.” No. the USPTO and the DOE did not “kill” cold fusion. Cold fusion hasn’t been born yet, not fully, not as a patentable device that could claim, as Mitchell claimed, “nuclear fusion.” I could present evidence that the mainstream scientifically considers “excess heat” possible; and peer-reviewed reviews of the field that consider this a nuclear effect, but these do not establish *utility,* the critical legal question Mitchell has been butting his head against, he claims for 29 years. The first Swartz LENR patent I see in mentioned in the record was ‘937, filed June 27, 1989. Wow, that was fast!

There is a very long record here and it’s going to take me considerable time to come up to speed on it.

So, “Why are the peer-reviewed papers, the open demonstrations at MIT, and the successful courses not mentioned in the corrupt Decision?”

The Decision. Those items may be great interest to us if we are trying to assess the possibility of real LENR inventions, and thus judge the PATO prejudice against “cold fusion,” but they were not relevant to the Appeals court subject matter. There is, indeed, a political issue. PATO practice may be unfair, but the executive branch has discretion, and only a gross abuse of that discretion might be actionable. We are talking about, most of these patents, very old decisions, already litigated, in at least some cases. Hence we see “collateral estoppel” brought up. Mitchell does not show an understanding of the basic issue. What he calls the “poisonous tree,” I think is the old idea that cold fusion was broadly considered impossible, back in the day when cold fusion patents were first considered. I have found reference to the idea that the PATO rejects cold fusion patents out of hand. That has never been completely true, I’m finding.

Storms has, in his 2007 book, one of the only references in the many booksI have on LENR, on the subject of PATO practice: He tells a story from personal experience, p. 15, about working with ENECO.

“In addition, Paul Eveans, a lawyer, was hired to move various patent applications, including the one describing the Fleischmann and Pons work, through the Patent Office. Little did we realize that the Patent Office, in the person of Harvey Behrend (since retired), would refuse to issue patents on the subject — of course because he followed the wishes of his boss and various political appointees. Reams of deposition, detailed published evidence, and numerous official forms were sent to the Patent Office only to be rejected because the New York Times, in one article or another, said the claims were not real. Scientific evidence we presented had no effect. More than a million dollars was spent satisfying the legal requirements and demands of Mr. Behrend, to no avail Finally, the company ran out of money and the patent application was given back to the University of Utah where it was allowed to lapse. As a result one of the great discoveries of the 20th century was not accepted in the US even though patents in Japan and in other countries were granted. Many other people had similar experiences, resulting in the absence of intellectual property protection for inventors. This failure by the Patent Office not only resulted in an intellectual property mess requiring future correction; it also forced people to keep their best ideas secret.

This appears to be a naive account, from what I’m finding. The PATO would not “reject a patent” because of a New York Times story, not like that. Rather, the widespread opinion about cold fusion would cause reasonable skepticism as to the utility of an invention that claims “cold fusion.” In the presence of that, the Patent Office decided to require proof of utility. Not proof of scientific possibility, but proof of an actually useful invention; something that produces demonstrations and measurable effects, nuclear or otherwise, is not necessarily useful. What I’ve seen with the Swartz litigation is massive evidence presented that did not show utility, and examples would be published papers (that don’t show utility for the specific claimed inventions), public demonstrations (consider the Rossi demonstrations!), and the MIT cold fusion course.

ENECO did not have a practical device, but was attempting to patent the “discovery” of an effect, in a situation where there was no way of describing how to reliably create the effect, let alone to make it useful. Yes, many inventions are patented without that proof being required, but that was a shift in patent practice in the 19th century, as I recall being told (they used to require working models). Inventor representations are taken as if true, unless some reason arises to question them, and that has happened with many patents, as, for example, some cases covered by Robert Park in Voodoo Science.

Swartz was arguing against the obvious: there is reason to doubt any claims of useful LENR devices, until strong evidence appears otherwise. And “useful” is the controlling word here, for patent law. “Real” isn’t. ENECO may have wasted a million dollars on a wild-goose chase.

Swartz has pointed to patents issued relating to astrology, but he doesn’t understand that an invention relating to astrology need not claim that “astrology is real.” It can simply be a means of displaying data. The one patent I’ve seen in the pile litigated in this case, that might have been issued if not connected with “cold fusion,” was a device for measuring loading, and the original application may have claimed usefulness in “monitoring and accelerating electrochemically induced nuclear fusion reactions,” which claim was, then, rejected as not believable. All that rejection did was shift the burden of proof to Swartz, and my guess is that, had he focused on that specific patent and corrected the point, he might have succeeded, but he mixed it — and continued to mix it — with his other applications, and I’m not sure he ever remedied the defect. Basically, the original error was in assuming “nuclear fusion reactions,” when one might want to measure loading for other purposes, including investigating the possibility of unexpected reactions at high loading.

(That Swartz may have been looking so strongly at loading in June, 1989, is remarkable! No wonder he got the Preparata Award! — except I’ve never seen any sign that the invention was actually used by anyone. It may not have actually been practical, it may have required development that was not undertaken. McKubre used R/R0, to monitor loading, which merely requires an extra wire, could be easier, though less direct.)

Bottom line, the original patent was filed in 1989 and there are still no marketable products from it, and I don’t recall seeing any papers from Swartz that used the device. It was an idea, it is not clear that it was ever realized. Yes, normally, one may be able to patent ideas, but . . . not if they arouse skepticism, in which case, proof may be required. As to how Swartz might have corrected the application, I’m not a lawyer, I merely think it might have been possible. And it is also possible (and there exists some evidence for) that there was political pressure on the PATO.

Why was the Hearing Memorandum removed before the Decision?

The Memorandum was included in this mixed Motion. It was not “removed” because permission to submit it was denied, and that was explained  in the Order of denial. (link added)

. . . as a court of appeals, our review is generally limited by the record before the district court. See Fed. R. App. P. 10(a). This Court generally does not accept new evidence for consideration in the first instance. Moreover, Appellant has not shown that this new evidence is material to the issue at hand.

If Mitchell does not understand the explanations of the Court, I’d recommend he discuss them with an attorney. He could also ask me, though I’m not an attorney. He’s been invited to comment here, which would include making corrections and asking questions.

Mitchell had already submitted his original appeal and an oversize Reply brief responding, in theory, to the arguments of the appellees. The new evidence he supplied continued to be irrelevant to the issue of the appeal. If anything, it could be read as damaging his case. The Preparata Medal was awarded, not for his inventions, per se, but for his investigations of the “anomaly.” Anomaly means something unknown, not understood, and therefore properly subject to skepticism. The Declaration of David Nagel confirms PATO claims, actually, with only minor corrections:

13. The Patent Office writes:
Slide 14: “Reproducibility and control or experiments remains problematic. The mechanisms behind LENR are still not understood.”
Slide 42: “LENR do occur, but are not understood.”
[Nagel:] The statement about reproducibility and control applies to many LENR experiments and is factual. […]

14. The Patent Office writes:
Slide 37: “LENR must be reproducible, controllable and reliable before it is
commercialized ••• The wild card is when LENR will be understood, since understanding
it will make exploitation faster and better.”

[Nagel:] These statements are also factual. Products that are not reproducible, controllable and
reliable will not succeed on the market. When LENR will be understood in the normal
scientific manner, as cited above, is unknown, and can be called a “wild card”, a
personal choice of words by the author Nagel.

The PATO position is that the status quo has been and may still be that a claim of a useful LENR device may be questioned, and the burden of proof shifted to the inventor. Whether this is in the best interests of the US government or the public is a distinct question from the right of the PATO to follow this procedure. What seems clear to me is that the policy and practice has prevented many actually useless inventions from being patented. On the other hand, there is a loss of an ability to quickly patent new ideas. I really don’t know if there is more harm than good from the policy, but Mitchell appears to think that the practice has “killed” cold fusion. However, because an inventor could still demonstrate a useful device, the only patents that have been prevented are those where there was not actually a useful device, it seems. Patents have been issued, in fact, and still there are no useful devices, not even a “lab rat,”

As part of this investigation, I have found that there really is little coverage of the patent history with cold fusion, only a few anecdotes and widespread rumor that may or may not be misleading. So I’m considering doing a far more extensive study. Comments?

Who acted as judge, jury, and executioner of the new evidence?

The new evidence was not destroyed, it’s still in the record, it still stands the same as before the judges unanimously denied permission to add it to the briefs already admitted, a few days before the actual hearing on the appeal.

Who misplaced all eight copies of the Reply brief. Why?

When one has developed a conspiracy theory, any anomaly, any unexplained event, can then be imputed to the conspiracy.

There is a mention of “eight copies” of the Reply brief in DE 34. a motion to correct the order accepting his out-of-time and oversize reply brief, arguing with what was, at worst, a totally harmless error, but wrong. The court rejected the motion as moot, and informed him of the rules regarding length. The deadline for filing the reply brief was not mentioned by Mitchell, but was in the record of the filing of the Appellee brief. He was late by ten days.

9. In summary, examination indicates that the prose Appellant’s Reply Brief was on time, was apparently within the word limit based upon the word processor’s own count of the number of words, and was accompanied by all 8 copies that mysteriously disappeared thereafter based on information and belief.

Therefore, the Appellant respectfully requests correction of the Order, or if not a full explanation of the reason for the two statements, and the then evanescently-“missing” Reply Briefs which were fortunately thereafter located.

So, Mitchell thinks it’s appropriate to demand an explanation from a three-judge panel of a transient clerical mishap? No harm had been caused. They ignored this, as I’d expect, but I have some sense of how Mitchell appeared to them. They did explain the length issue but not the time issue, and it was totally moot, as they ruled. Note to self: when a judge accepts my allegedly out of time filing and my oversize filing, say, “Thank you, your honor.” Not “I wasn’t late and it isn’t oversize! You’re wrong! And why did your clerk disappear the copies for the other parties?”

Who removed the DTRA and DIA reports from the federal court in the Eastern District of VA in 2017? Why?

Probably nobody. What is likely is that Mitchell thought he was attaching them to his complaint, but failed to do so. The reports were, however, provided by PATO in their motion to dismiss. See the Docket, DE 18-6 and 18-7.

The appeals court ruling refers to the reports. I found this in the original case dismissal Order:

Plaintiff discusses both of these reports—one from the Defense Intelligence Agency (“DIA”) and one from the Defense Threat Reduction Agency (“DTRA”)—in his Complaint. See Compl. [Dkt. No. 1] 61-69. Although plaintiff appears to claim that he attached both reports to his Complaint, see id. 61 (“Exhibit 11 is from the DIA Report. . ..”); id ^ 65 (“A closeup ofthe DTRA report is shown in Exhibit 12.”), neither report was filed with the court. Defendant included copies of both reports with his Motion to Dismiss. See Def Mem. [Dkt. No. 18] Ex. 6; Ex. 7. Because both documents were extensively discussed in the Complaint, they have been incorporated by reference and may be properly considered in evaluating defendant’s Motion to Dismiss and plaintiffs objections to that motion.

Mitchell, one would think, would have noticed the documents missing and would have taken action to file them. (He filed a series of statements from individuals with the Complaint), as separate documents. Errors like that can be fixed. It is possible that the defendants, then, would have had extra time to reply, that’s all. In fact, since the documents were provided by the defendants, as described, this was completely moot. I don’t know yet if he mentioned the alleged “removal” in the appeal, because I don’t yet have those files.

Who lied to the appellate court THREE TIMES misleading about the inventions in question?

I suspect this is about an interpretation that Mitchell disagrees with, but that the courts both seem to have confirmed, including the Patent Board of Appeals, before. Is the interpretation misleading? Perhaps. That doesn’t make it a lie. Mitchell did allege perjury, which claim often fails to go well unless it can be proven as intentional deception. The only statements tendered by the Appellees would be in the Response Brief, and if a misleading comment was material, then the place for Appellant (Mitchell) to note this would be in his Reply Brief, which followed the Response. Did he? I do have a copy of the Reply Brief.

The reply brief begins with a quite verbose rant:

There are so many errors in the Appellee’s Brief, that only the most significant can be addressed here. Briefly, the Appellee’s Brief is a rehash of past mischaracterizations and past factually false statements and new disingenuous statements without a single admission or substantive correction or discussion of the new evidence.

I don’t yet have the Appellee’s brief, so here I’m looking for the THREE LIES. Mitchell’s response has section headers and text in Red (which might not be allowed, but which the court may have ignored)

1 The Appellee’s Brief Ignores the Issues of the Complaint, the Complaint’s Detailed New Evidence, and Defendant’s Systematic Wrongdoing Against the Orders of the PTAB

Ignoring something is not a lie.

2 The Appellee’s Brief Ignores That 35 U.S.C. § 145 Claims are Supported by New Evidence

Again, ignoring something is not a lie.

3 The Appellee’s Brief Ignores Complaint’s Detailed, Factual Averments

4 The Appellee’s Brief Ignores Precise Orders to Plaintiff from the Patent Trademark Appeal Board [PTAB]

5 The Appellee’s Brief Ignores Defendant has Systematically Failed to File and/or Address Submitted Documents

I’m still looking for lies. If he’s buried them in details, they must not be that important.

6 The Appellee’s Brief Ignores Defendant’s Systematic Mischaracterizations of the Inventions

6-1 The Appellee’s Brief Ignores the actual Inventions

6-2 The Appellee’s Brief is Factually Wrong about Each Invention

Okay, factually wrong, though what is discussed is interpretive and both courts seem to have pointed to contradictions in Mitchell’s arguments. I’m still looking for “lies.”

6-3 The Appellee’s Brief Ignores that These Inventions are Not “F+P”

6-4 The Appellee’s Brief Mischaracterizes and Ignores Other Uses for These Technologies

That may be true, but the substance here is that “other uses” became mixed up with claims of nuclear fusion, and Mitchell’s attempt to detach them from the FP Heat Effect and “cold fusion” claims simply was not accepted by the PATO nor by the Patent and Trademark Appeals Board, nor by the Federal Court nor by the Appeals Court, in multiple cases, and this was, in the end, moot, because the patents were not denied because of being “F+P” but because the inventor failed to prove utility. (Most evidence provided by Mitchell was directed toward showing possible scientific reality, which is a quite different issue.)

7 The Appellee’s Brief is Factually Wrong about Operability

The legal issue is not actually operability, but rather whether or not the inventor fulfilled a burden of proof created by reasonable doubt that the disclosures were “operable,” i.e., if instructions were followed, the claimed benefits of practical utility would be obtained. Mitchell, again and again, appears to not understand what the PATO is requiring, and, as well, what the courts are requiring.

I am not convinced that there is any invention extant that would meet the heightened scrutiny of the PATO. For various reasons and because of various situations, the PATO has granted some patents relating to cold fusion. To my knowledge, none have proven to be of actual utility, yet. Mitchell wrote:

26. The USPTO has absolutely NO foundation to support their mistaken opinion.

What Mitchell appears not to understand is two-fold:

The PATO doesn’t have to prove foundation, they merely need (probably) to have some basis for suspicion of lack of utility or inoperability.

The evidence provided by Mitchell actually shows clear basis for such suspicion. Mitchell is claiming that this is “wrong,” or “mistaken,” but suspicion doesn’t have to be correct to be reasonable.

(And behind all this is that an inventor, with a practical and operability invention of real utility, should be able to provide evidence of utility. Yes, it might be unfair, but that’s the cost of working in a field that is not fully accepted. Given that a practical device doing what Mitchell claims — in this brief — should be worth billions of dollars, it’s not too much burden.)

8.DTRA and DIA Reports Proves §145 Enablement of These Inventions and Failure of Defendant to Honor Exculpatory Evidence

I have not seen where these reports do that, and this would, in any case, not represent “lies,” which is what I’m looking for, here. The dismissal order and the appeals court affirmation of the dismissal do consider those reports and deny that they “prove enablement of these inventions.” “Exculpatory evidence” would refer to evidence contrary to the blanket assumption of suspicion of lack of utility or inoperability, and once suspicion is raised, that becomes moot.

9. DIA Report Proves §145 Enablement of These Inventions

Apparently Mitchell believes it is enough that his research is mentioned, and does not cite actual evidence of operability or utility of the specific patents involved.

10.DTRA Report Proves §145 Enablement of These Inventions

Color me doubtful. I haven’t reviewed the specific reports cited, yet, but from general familiarity with similar reports, it is highly unlikely that they did what Mitchell is claiming, and the Courts both cited contrary evidence from those reports. I’m totally willing to revisit this, but … Mitchell is crying “lies” without showing actual lies, merely disagreements.

11.The Appellee’s Brief Ignores that Open Demos at MIT Proves §145 Enablement of These Inventions

It is difficult for me to understand how a demo such as those I have seen descriptions of could do this. A prototype product, independently tested, might do part of this, and an independent construction of a device using the patent information could also do this. Mere scientific reality is not enough for inventions claiming what Mitchell claimed in this Reply Brief.

I’m losing patience. So far, the most that Swartz has done is to claim error, and when he does so, he merely alleges it, he doesn’t seem to quote the alleged erroneous statement. His Reply brief does not appear to be correlated with the Appellee’s brief. But, again, I don’t yet have that brief.

In an appeal, a proper argument would be that the original court was wrong, not that the defendant was wrong. Mitchell doesn’t know what he’s doing; if he had a prayer of reversing the dismissal, he didn’t realize how to take advantage of the opportunity. He simply kept repeating a very old error, making the assumption of the impossibility of cold fusion the issue when that, in fact, isn’t conclusive, if the inventor can prove utility and operability, which are not the same as some level of acceptance of possibility and some general acceptance that there might be real effects. He’s fighting an old fight, that will soon be obsolete, once there are real devices on the market. If Mitchell had been able to show real devices actually being sold, it would have been all over. I see no sign that he attempted to do that, leading me to suspect that the PATO argument is, in his case, correct. His inventions are not yet at the stage of practicality.

He claims that the ‘258 invention was patented by someone else (at Nissan) without regard for his application. But he torpedoed that invention by claiming utility in “nuclear reactions,” which I’m pretty sure the Nissan patent did not claim! (I was correct. This is the patent. While there is a resemblance, this is a patent for a device to control fuel flow in a fuel cell. Device and method for controlling fuel cell system with vibration amplitude detection)

Reviewing the rest of the Reply brief, I find reference to claims that might have had some legs, if raised clearly and without distraction from all the claims of lying and misbehavior. The PATO issue has always been, as far as I can tell, procedural, and the existence of many claims, with voluminous evidence provided — possibly too much! — what might have been possible was lost. Procedurally, I think Mitchell may have exhausted his recourse, the possibility of a successful appeal to the Supreme Court being, I’d think,remote based on the record here. I do know that at least one attorney has reviewed Mitchell’s patent history and found that he failed to properly pursue the process. But I hope to eventually document all of it, because this is part of the history of cold fusion.  Back to Mitchell’s image:

Who lied to the federal appellate court misdescribing a method to measure loading to fabricate a “poisonous tree”?

Indeed, who? And where? Again, the only statement made to the appellate court by the PATO was the Response brief.  From Mitchell’s Reply brief:

There is nothing new in it.

Mitchell seems to think that is a problem. That is actually normal. Mitchell seems to believe that the Appeal would be like a trial de novo, and he attempted to submit new evidence. Briefs filed with an appeals court are intended to lay out, for the convenience of the Court, legal arguments and to call attention to what may be relevant within the trial record, not to introduce anything new. Mitchell had the opportunity to assert new evidence to the trial court. That court considered his evidence and arguments and rejected them as irrelevant, and, certainly, many of them were such. “The poisonous tree” claim of Mitchell’s is rhetoric aimed to create public outrage. It misses the basic point: the PATO may, as an executive decision, treat patent claims in some area as implausible, requiring evidence of utility and operability. The inventor then has recourse, and the legal issue would be, then, did Mitchell satisfy the burden of proof on the relevant issues, or did he instead attack the consideration of implausibility, which is not conclusive, but only procedural.

The multitude of problems within the Appellees Brief now includes impugning the pro se Plaintiff (now Appellant) and his several unique, novel and non-obvious inventions producing clean energy.

Once again, Mitchell, while denying that his inventions are “cold fusion” or “F-P” technology, still insists that they are “producing clean energy,” thus resting his possibly useful inventions (his loading measurement method looks like it could work to me) on a result that is still not accepted, and that is considered as questionable or not established by the very new evidence he alleges. This all seems to be about attempting to prove that he is a great scientist. He reacted strongly to the facts pointed out by the clerk and the Court in accepting his late and oversize Reply brief, as if they were “impugning” him, wasting the time of the court to argue that this was Wrong. But even if it was wrong, it was moot, because they accepted his brief, so “late” and “oversize” were harmless dicta. Unless one cannot tolerate any perceived insult, no matter how minor.

Other errors include factually false statements, repeated  mischaracterizations, systematic misdescriptions of past evidence and pleadings, and outright misdescription of the inventions submitted and the Evidence accompanying them, and a reliance on i) the proverbial “fruit” obtained from the poisonous tree — which was fabricated by the Defendant to cover up an entire clean energy field using systematic discrimination and an odious series of factually false statements. It is unfortunate that Atty. 
Michael Forman misrepresents factual information to this court. His false statements will be corrected in this Reply Brief. Most egregiously, as this Reply Brief and the record demonstrates, the Defendant’s said reprehensible actions were made during, and followed by systematic repeated attempts at exculpatory actions.

So, rejection of patents filed by Mitchell Swartz is characterized as an attempt to “cover up an entire clean energy field.” What clean energy field? Is LENR clean technology? It has the potential to become such, if developed, but this has not yet been successfully demonstrated, as to actually useful devices. Spinning a rotor on a Sterling engine is not adequately useful to overcome the skepticism, and this is well-known in the “field.” (And I am not aware of fully-independent validation of even that result. Observing a demo is not fully-independent validation. The demo was under the control of the inventor. The inventor’s scientific papers, mostly published only within the specialty JCMNS and as conference papers, are not adequate for that. There are many examples within the record I have seen, so far, of inadequate evidence presented. A vast pile of inadequate evidence might sway a jury, if skillfully presented, but obviously did not sway the PATO, nor the Patent Appeals court, nor Federal Court, nor the Appeals Court.

Who does it satisfy? I have not seen evidence yet that speaks to practical utility and operability of specific inventions. Mitchell cites the declaration of Larry Forsely:

“I have a patent issued in this field USPTO 8,419,919 that cites multiple patent applications by Dr. Swartz.”

That would be System and method for generating particles

This patent, granted in 2013,  does not claim generation of useful energy, but only particle radiation. This patent demonstrates that the PATO is not ipso facto rejecting patents because they are “in the field.” It cites many patents as possible prior related art, including the applications (date in bold shows date granted).

US20010019594A1 1991-09-17 2001-09-06 Swartz Mitchell R. / Method and apparatus to control loaded isotopic fuel within a material
US20020021777A1 1989-06-27 2002-02-21 Swartz Mitchell R. / Method and apparatus to monitor loading using vibration
A rejected application must still be cited, if I’m correct, if related, and citation does not claim actual utility of the cited invention. Reviewing the list of cited applications, what I find contradicts the common impression that has been created that the PATO denies LENR patents. It’s not just Forsley.
US6248221B1 1995-12-26 2001-06-19 Randolph R. Davis / Electrolysis apparatus and electrodes and electrode material therefor. Cites the Fleischmann et al patent! LENR.
US6379512B1 *1998-02-11 2002-04-30 Northwest Aluminum Technology / Combination for electrolytic reduction of alumina Not LENR related.
US6444337B1 2000-09-26 2002-09-03 Energetics, Inc. / Fuel cell with low cathodic polarization and high power density Not LENR related.
US6562243B2 *2001-04-05 2003-05-13 Jonathan Sherman / Synergistic combination of metal ions with an oxidizing agent and algaecide to reduce both required oxidizing agent and microbial sensitivity to fluctuations in oxidizing agent concentration, particularly for swimming pools Not LENR related.
US20030112916A1 2000-02-25 2003-06-19 Keeney Franklin W. / Cold nuclear fusion under non-equilibrium conditions LENR.
US20030213696A1 2001-05-30 2003-11-20 Energetics Technologies, L.L.C. / Pulsed electrolytic cell LENR, Superwave, abandoned.
US20050045482A1 2003-08-25 2005-03-03 Storms Edmund K. / Electrolytic heat source. LENR, abandoned.
US20050129160A1 2003-12-12 2005-06-16 Robert Indech Apparatus and method for facilitating nuclear fusion LENR.
US20050236376A1 2001-08-13 2005-10-27 Eccles Christopher R / Energy generation LENR
US20050276366A1 1995-05-12 2005-12-15 Electrochemical Innovations, Inc. [John Dash]Low temperature nuclear fusion LENR.
US20060088138A1 2004-04-07 2006-04-27 Andre Jouanneau / Method and apparatus for the generation and the utilization of plasma solid Maybe LENR (plasma). Refers to Fleischmann. Abandoned.
US20060153752A1 2002-10-11 2006-07-13 Yoshiaki Arata / Hydrogen condensate and method of generating heat therewith LENR.
US20070095823A1 2005-10-27 2007-05-03 Sedlmayr Steven R / Microwave nucleon-electron-bonding spin alignment and alteration of materials I was going to classify as not LENR, but … the inventor is chatty, this patent is a great example of how not to write an application, and he claimed utility for creating cold fusion. Hence, LENR.
US20070140400A1 2005-10-19 2007-06-21 Hodgson John A / Cold fusion apparatus LENR
US20070206715A1 2005-12-29 2007-09-06 Profusion Energy, Inc. [Godes, Brillouin] / Energy generation apparatus and method LENR.
US20070269688A1 2004-05-19 2007-11-22 Sri International / Liquid anode electrochemical cell Fuel cell, not LENR related.
US20070280398A1 2005-12-05 2007-12-06 Dardik Irving I / Modified electrodes for low energy nuclear reaction power generators LENR.
US20070286324A1 2002-05-182 007-12-13 Spindletop Corporation / Direct generation of electrical and electromagnetic energy from materials containing deuterium. LENR.
Summary: The granted patents for Forsley and Davis show that LENR patents are being approved. However, those patents did not claim practical energy production. Davis, in particular, claimed an improved electrolysis system for investigating possible nuclear effects. That is, its utility did not depend on the utility or reality of LENR. The other LENR patents did make such claims, often very explicitly.
The “poisonous tree” is the information cascade, that cold fusion was all a big mistake, pathological science, etc. And that therefore that “cold fusion” is impossible, that’s part of the cascade. This widespread idea then leads the PATO to suspect lack of utility and inoperability, so they require strong evidence, and reject weak and circumstantial evidence (such as Swartz winning the Preparata Medal, which has no bearing on the utility of his patents).
It has often been pointed out that theory is unnecessary in a patent application. The mention of fusion in the applications was a mistake, because it is still in substantial controversy whether or not the “anomalous heat effect” is fusion. So if the utility of a patent is to “create nuclear fusion,” and the method is similar to the FP methods or is connected with them, the suspicion is reasonable and they may then shift the burden of proof to the inventor.
That condition will last, I predict, until actual practical and substantially devices are constructed and available. They might be “toys,” demonstrating some effect.  Such demonstrations may have utility, but as to the energy future of humanity and Mitchell’s visions, that would not be good enough, and . . . even if it were, he hasn’t claimed that.
I disagree with an aspect of the conclusion of the Appeals Court, but it was dicta, not actually central. I have bolded it:
Finally, Swartz has not shown error in the district court’s dismissal of his challenge under the patent clause of the Constitution. His entitlement to a patent under that provision is framed and defined by Title 35 of the U.S. Code, which includes explicit requirements for utility and enablement. Because the Board and district court adequately showed that Swartz’s inventions lack utility and enablement, he is not entitled to patents on those inventions.
No, the Board did not show that the inventions lack utility and enablement. Rather, what was shown, as far as I’ve seen, was that Swartz failed to prove utility and enablement, as required, and the “new evidence” that was his basis for going to federal court did not adequately show specific utility and enablement for specific patents, but rather attacked or were relevant to the “general opinion” about cold fusion. Once the PATO has required special evidence, the only remedy for an inventor is to provide it, unless the inventor can prove some special exception, such as the corruption of an examiner.
In reality, reasonable doubt remains — within the field — as to the utility and enablement issues for Mitchell’s inventions. “Doubt” is not the same as “proof of non-existence.” Given the long history of Mitchell’s patents, and the lack of practical products, even as available prototypes, we must suspect that the original patent applications — beginning in 1989 — were not of useful inventions, but merely of possibly interesting ideas.
Who failed to log submitted Evidence and Declarations for 29 years? Why?
Indeed, who, what, where? This has been a long case, and Mitchell was dealing with a government bureaucracy. If, indeed, there were failures to log, these kinds of failures are common and do not evidence, by themselves, a pattern of discrimination. Indeed, it is unlikely that if the intention of the PATO were to wrongfully deny a patent, one would think they would exercise great care to avoid ordinary mistakes, because of the likelihood of a challenge. In his Complaint, Mitchell brings up failures to log and other alleged errors, without any showing that he was actually harmed. We can see similar behavior in the appeal, where alleged error in the Order that actually accepted his allegedly late and oversize Reply brief, is raised as if anything other than moot. The “missing eight copies” clearly, in his mind, constitute evidence of some kind of conspiracy to harm him and the entire field of clean energy.
In one case, Mitchell allegedly submitted evidence on a CD, which is not an allowed form of document submission. So those documents might indeed not have been logged or considered timely. But he could have remedied all this, there are procedures for correcting errors that don’t involve filing a federal lawsuit, and, in fact, a major ground for dismissal is that due process was not followed, and Mitchell provides an excuse that he did follow process in this or that case and it was allegedly ignored. At least that’s how I remember it.
Summary: The alleged corruption is not supported by the evidence in Swartz v PATO. There are two clear paths to LENR patents:
1. Do not claim energy production as a primary claim. Do not claim some theory of operation, particularly do not claim “fusion.” Notice that the Forsley patent claims to generate “particles,” which would be evidence of nuclear reactions, but not of practical levels for energy production (and the approach is electrolytic, unlikely to be useful for energy production.) The Davis patent does not claim fusion or nuclear process, but rather the use of the device for investigating possible reactions.
2. If a patent application must assert energy production or fusion, then be prepared to produce strong evidence of utility, not merely some experimental results. Reliability is essential. It is not possible at this time to patent LENR devices for energy production based only in an idea, not actually reduced to a practical device. That deviates from practice in many other fields, but is not illegal discrimination.
Update: Memicry
Pretending to be what one is not can be dangerous to your health. Dr. Swartz has used this meme on Cold fusion times:
Searching for the original, I came across many kangaroo court images, such as the following, which portrays what would likely have happened if Mitchell had survived the Motion to Dismiss and he actually went before a jury:
The full video is about racism and is a brilliantly produced music video:
Not very long ago, it could be a fatal mistake for someone of the “wrong race” to merely talk with someone of another “wrong race.” Dressing yourself up in a mustang and changing the appearance of your face doesn’t make you a mustang, if you are actually a zebra.
if you are a zebra, be proud! Faced with what can seem unfair — or may actually be unfair — doesn’t allow misrepresentation of reality, and Mitchell did this in his pleadings, and it was obvious to the court. He was not lying, but being quite careless of the truth, and he’s continuing it on his web site.
The simple reality for patents is that any patent that claims cold fusion or nuclear fusion from chemistry, for the production of energy, is going to be challenged as likely to be unworkable. To survive that challenge, the inventor must show more than is normally required for a patent, absent such a claim.
(This  is a general principle for anything deemed impossible — which really must be understood as “unlikely,” an “extraordinary claim,” requiring “extraordinary evidence.” This did not begin with cold fusion.)
It is still quite possible to patent cold fusion inventions, and patents have been issued, but there are obvious pitfalls to be avoided, and Swartz did not avoid them.
The error was common in many early patents, including some skillfully prosecuted, but Andrea Rossi, ironically, showed how to move beyond that (and his attorney may have learned from others who have also obtained patents).  His first patent claimed nuclear energy and mentioned “cold fusion,” but he filed a new patent that made no such claim, it only claimed heat, not making a quantitative claim, and not running into the old prejudice. The old patent is still caught in the machinery and I predict it will ultimately die. The new patent was approved, Rossi was very proud of that.
Now, Mitchell also filed new patents, but then claimed priority from his very old filings, which then caused the old claim (useful for creating nuclear fusion!) to be incorporated in the new, thus suspicion of non-utility and non-operability would continue to attach to them, and it did.
Mitchell, as well, made contradictory argument: he cited evidence for cold fusion as if this related to his invention, while at the same time attempting to deny he was claiming cold fusion. Very tricky. Not a job for someone acting pro se, unless that person were willing to learn from his own mistakes and those of others. The examples are out there, and he had been strongly instructed by previous Appeals Court decisions as to what not to do, but he did the same things anyway, deja vu all over again.
This case is definitely not to be presented as representing the community opinion about Mitchell and his patents and the dismissals. As Mitchell has been presenting it, it will mislead many and can cause harm in two ways: first, it can make the community look exactly like what the pseudoskeptics claim, a collection of die-hard conspiracy theorists, thus also discouraging, to some extent, examination of the scientific evidence for cold fusion (which the court considered irrelevant to its decision, and that appears correct to me as to law).
As with our common response to the DOE Reviews of 1989 and 2004, what were actually “not proven yet” reviews — much more so in 1989 than in 2004, where the result was more like “interesting, may be real, but more research is needed, massive program not yet justified” (which is my position and also that of DARPA and DIA in the reports Mitchell presented, apparently. By attacking those reviews, when they were overall reasonable — even though mistaken in some ways — we made ourselves look reactive and attached to belief. A more productive response might have been to thank the reviewers for their work and then hold the DOE’s feet to the fire for actually implementing the recommendations of both reviews. After all, more research was a total and real consensus in 2004. Don’t we agree with that?
Secondly, it also generates some level of doubt about Mitchell’s own scientific claims. If he can so badly misrepresent process fully shown in verifiable records, why would we trust his probity in presenting scientific evidence from his own research?
Nevertheless, there is quite good reason to suspect Mitchell has ideas and inventions of interest, and the same with experimental results. However, as with his inventions before the PATO and the court, he may exaggerate and cherry-pick evidence, his analysis may be suspect and self-serving. Not uncommon, and this is why we have peer reviewers and other analytical processes, and we need more of that, much more.
I am suggesting, in general, with all work in the field, that it be very carefully and thoroughly reviewed and critiqued, and where claims are of interest and import, that confirmation and ultimately fully-independent verification be pursued. We have too much primary evidence, already, and too little that is clearly and unmistakably confirmed. Such does exist, but can also still be improved as well as extended.
This is an issue with possible lost opportunity cost from delay of a trillion dollars per year. It’s worth finding out how to do it right.

Ruling on appeal

Subpage of Swartz v. PATO
Links to pages of ruling:

Links have been added, and comments in indented italics.

The ruling: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1122.Opinion.7-17-2018.pdf  (our copy)

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
Appeal from the United States District Court for the Eastern District of Virginia in No. 1:17-cv-00482-LMBTCB, Judge Leonie M. Brinkema.
Decided: July 17, 2018
MITCHELL R. SWARTZ, Weston, MA, pro se.
NATHAN K. KELLEY, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, for defendants-appellees. Also represented by MICHAEL S. FORMAN, BENJAMIN T. HICKMAN, THOMAS W. KRAUSE; [page 2] TRACY DOHERTY-MCCORMICK, KIMERE JANE KIMBALL, Office of the United States Attorney for the Eastern District of Virginia, Alexandria, VA.

Before PROST, Chief Judge, NEWMAN and LINN, Circuit Judges.


This means by unanimous consent of the Judges.

Mitchell R. Swartz brought a complaint in the Eastern District of Virginia pursuant to 35 U.S.C. § 145, in which he challenged the decision of the U.S. Patent Trademark Office rejecting six of Swartz’s patent applications—U.S. Patent Application No. 12/932,058; No. 12/589,258; No. 13/544,381; No. 12/316,643; No. 09/748,691; and No. 09/750,765—as unpatentable under 35 U.S.C. §§ 101 and 112. Swartz also alleged various forms of misconduct by the patent office. The district court dismissed his complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) and Swartz now appeals. Swartz v. Matal, No. 1:17-cv-482 (E.D.Va. Aug. 22, 2017) (Brinkema, J.) (“District Court Op.”). Because the District Court did not err, we affirm.

12/932,058. Patent Board decision on appeal. 9/28/2016

Fed. R. Civ. P. 12 (b) . . . a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction; . . .
(6) failure to state a claim upon which relief can be granted; . . .

We begin with the ‘381 application. Section 145 creates a cause of action to challenge a “decision of the Patent Trial and Appeal Board.” At the time Swartz filed his complaint in district court, and throughout the pendency of this action before the district court’s decision, the Board had not yet issued its decision with respect to the ’381 application. Because there was no “decision” of the Board to challenge with respect to that application, the district court properly dismissed that portion of Swartz’s claim.
The district court also properly dismissed Swartz’s claims with respect to the ’058 and ’765 applications on the bases of collateral estoppel. In In re Swartz, 50 F. App’x 422, 424-25 (Fed. Cir. 2002) (“Swartz II”) (per [page 3] curiam), this court affirmed the rejection of Swartz’s U.S. Patent Application No. 08/406,457 for failure of utility and enablement. The at-issue ’058 application is a continuation of the ’457 application, and the representative claims in the two are “identical,” as represented by the Board and uncontested by Swartz.

Collateral estoppel – Wikipedia

Similarly, in In re Swartz, 232 F.3d 862, 864 (Fed. Cir. 2000) (“Swartz I”), this court held that the claims of Swartz’s U.S. Patent Application No. 07/760,970 were unpatentable for failure of utility and enablement. The at-issue ’765 application is a continuation of the ’970 application, and the representative claims in the two are nearly identical.

The core requirements for collateral estoppel are that: the issue in question is identical to an issue previously decided, the issue was actually litigated in the prior proceeding, the resolution of the issue was necessary to the prior judgment, and the party challenging the issue must have been given a full and fair opportunity to litigate the issue in the prior proceeding. Jet, Inc. v. Sewage Aeration Sys., 223 F.3d 1360, 1366 (Fed. Cir. 2000). Swartz argues that the district court wrongly applied estoppel here because he submitted new references not present in the previous appeals to show utility, and because the applications here no longer include explicit references to cold fusion.

Neither the new references nor the elimination of explicit reference to cold fusion avoids the application of collateral estoppel. Swartz has not shown that these differences “materially alter the question of invalidity.” See Ohio Willow Wood Co. v. Alps S., LLC, 735 F.3d 1333, 1342 (Fed. Cir. 2013). Substantially identical claims were [page 4] previously found to be invalid as lacking utility and not enabled. That holding is binding on Swartz.1

We turn next to the ’258, ’643, and ’691 applications. The PTO carries the initial burden of challenging the utility of an invention. In re Brana, 51 F.3d 1560, 1566 (Fed. Cir. 1995). However, the PTO carries that burden if the patent “suggest[s] an inherently unbelievable undertaking or involve[s] implausible scientific principles.” Id. As we have held, cold fusion suggests such an inherently unbelievable undertaking. Swartz I, 232 F.3d at 864. The burden therefore shifted to Swartz to show sufficient evidence to convince an ordinarily skilled artisan of the inventions’ utility. Id. at 864. The evidence and arguments Swartz presents do not satisfy this burden.

Swartz makes two inconsistent arguments: his inventions are not directed to cold fusion or LENR, and he presented new evidence to the district court proving the utility of LENR technology.

First, Swartz’s assertion that his inventions are not directed to cold fusion or LENR technology is baseless. The references Swartz relies on here are related to LENR technology. Moreover, the parent applications were expressly directed to cold fusion, as we previously held.

Second, the new evidence submitted by Swartz does not cure the lack of enablement or utility. The new evidence comprised reports by the Defense Intelligence Agency (“DIA”), Defense Threat Reduction Agency (“DTRA”), and other scientific articles.

1 That this case is proceeding under § 145 in the district court, instead of through a direct appeal from the
U.S. Patent and Trademark Office (“PTO”) is also inapposite—it is the identity of issues, inter alia, not the cause of action, that gives rise to collateral estoppel.

[page 5] The DIA report cited Swartz’s research to support the statement, “In May 2002, researchers at JET Thermal in Massachusetts reported excess heat and optimal operating points for LENR manifolds.” That same report indicates fundamental skepticism about the result of the research. It notes that scientists from various nations “are devoting significant resources to this work in the hope of finding a new clean energy source. Scientists worldwide have been reporting anomalous excess heat production, as well as evidence of nuclear particles and transmutation.” It also states, “If nuclear reactions in LENR experiments are real and controllable, DIA assesses that whoever produces the first commercialized LENR power source could revolutionize energy production and storage for the future.” The DIA report also states that “much skepticism remains” about LENR programs. The DTRA reference strikes a similar note. It explains that LENR reactions “are showing some remarkable progress . . . but experiments remain only thinly reproducible,” that they “suffer[] from a basic lack of understanding of the governing physics,” and that “it seems unlikely that deployable/useable devices could be expected within a five to ten year horizon.”

These references do little to overcome the presumption of no utility. At best, they demonstrate some positive experimental results attained by Swartz, tempered by much remaining skepticism and uncertainty about the utility of the discussed technology. With respect to the remaining declarations and articles, the district court correctly concluded, “nowhere, for example, does [Swartz] explain how an invention described in any of the relevant patent applications was used in the course of any of the referenced demonstrations or experiments.” District Court Op. at 11.

Swartz presents a number of additional arguments, none of which have merit. Swartz cites In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992) for the proposition that the [page 6] Board failed to make its prima facie case of invalidity. As discussed above, applications that suggest inherently unbelievable inventions satisfy the Board’s initial burden to show lack of utility, and we have previously held that Dr. Swartz’s LENR-related inventions here properly fall within that realm.

Swartz argues that the district court failed to apply the de novo review required under § 145. See Kappos v. Hyatt, 566 U.S. 431, 444 (2012). The district court explicitly applied a de novo standard of review, citing Hyatt. District Court Op. at 7.

Swartz argues that the PTO failed to “docket[]” and “sequestered” documents. Swartz does not explain what documents were not docketed or were hidden, or by whom, or their potential relevance to the utility and enablement determinations. Swartz also argues that the PTO “misdescribed” several of his patent applications as directed to cold fusion. According to Swartz, the ’058 application is properly directed to “a heat measurement system” and the ’765 application is properly directed to “a measurement of hydrogen loading into a metal.” Regardless of how the applications are described, however, the nearly identical claims presented in the ’058 and ’765 applications have already been determined in Swartz I and Swartz II to be within the realm of the inherently unbelievable and, therefore, unpatentable. As discussed above, collateral estoppel properly forecloses revisiting that issue here.

The similarity of claims, including claims in this appeal, with that 2000 appeals court decision (Swartz I) is remarkable. It is as if Swartz learned nothing.

On this appeal, Mr. Swartz complains that the Board “ignored” evidence that he submitted and disregarded his arguments, and he invites this Court to examine voluminous record material that he urges supports his position on the issue of utility.   Such conclusory allegations in an appeal brief are quite insufficient to establish that the Board’s decision on the issue of utility is not supported by substantial evidence or to establish that the Board’s ultimate conclusion of a lack of enablement is incorrect as a matter of law.

Finally, Mr. Swartz’s attempt to show that his claims are directed to a process other than cold fusion must fail.   In his written description and throughout prosecution of his application, Mr. Swartz continually represented his invention as relating to cold fusion.

Swartz argues that the PTO has issued patents in the field, citing Dr. Swartz’s applications. Each patent is evaluated on its own terms, however, and the citation to Dr. Swartz’s applications does not demonstrate their utility.

Swartz next argues that the district court erred in dismissing his various Constitutional claims for discrimination, violation of due process, violation of his right to an impartial tribunal under 28 U.S.C. § 144, and violation of [page 7] the patents clause of the Constitution. Swartz specifically relies on 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) to support these violations. Swartz does not explain why the district court erred in its conclusions that 42 U.S.C. § 1983 only applies to actions taken under color of law by “any State or Territory,” not the federal government, and that a Bivens action cannot be brought against a federal employee in his official capacity. Swartz also has not proffered anything but a bare assertion of prejudice by the district court. Finally, Swartz has not shown error in the district court’s dismissal of his challenge under the patent clause of the Constitution. His entitlement to a patent under that provision is framed and defined by Title 35 of the U.S. Code, which includes explicit requirements for utility and enablement. Because the Board and district court adequately showed that Swartz’s inventions lack utility and enablement, he is not entitled to patents on those inventions.

We have considered Swartz’s other arguments, including his allegations of intentional torts, fraudulent statements, and criminal misconduct, and find them lacking in any merit.



No costs.

This is incorrect, but the error is moot as to the decision: “Because the Board and district court adequately showed that Swartz’s inventions lack utility and enablement, he is not entitled to patents on those inventions.”

In fact, such a showing would be nearly impossible.

What was shown, plausibly, is that Swartz had not provided adequate evidence to overcome the burden of proof placed on him because of generic doubt about “cold fusion.” While this could be seen as a failure to prosecute the patent adequately, it may also be substantive, i.e., at least with some or most of what Swartz claimed, there is inadequate practical substance to the devices. What the PATO requires is specific proof of the specific claims, not generic proof of “LENR” or the qualifications of the inventor, or proof that government agencies are taking LENR seriously, etc., but proof of practical utility for the claims made, which have often been to create “nuclear fusion.” To obtain LENR patents with energy claims, a mere claim or experimental result is not enough.

Swartz v. PATO

Case filed as Swartz v Lee et al, PacerMonitor.

Appeal known as Swartz v. PATO, PacerMonitor.

(I have linked to PacerMonitor, but everything significant for free on PacerMonitor — only the docket — should be here, PacerMonitor is a fee-based site. (And PACER does not continue to display filings beyond a certain time. I use PACER itself.))

The formatting here is still poor — WordPress bugs (editor display is very different from actual view) — but it’s been improved, I hope. For the original case, Swartz v Lee et al, the docket is as PDF at 1.17-cv-00482-LMB-TCB

Appeals court opinions are available here.  This is the ruling on Swartz’s appeal.

links to case sections on this page:

Swartz comment (“corruption” conspiracy claims from Cold Fusion Times). Study of these claims.
Swartz comment 2 continues with a new claim from CFT.

Text of ruling on appeal and review with supporting documents. (In progress)

General Docket
United States Court of Appeals for the Federal Circuit
Court of Appeals Docket #: 18-1122 Docketed: 10/31/2017
Termed: 07/17/2018
Nature of Suit: 830 Patent Infringement (US Defendant)
Swartz v. PATO
Appeal From: United States District Court for the Eastern District of Virginia
Fee Status: fee paid
Case Type Information:
     1) Civil US
Originating Court Information:
     District: 0422-1 : 1:17-cv-00482-LMB-TCB
     Trial Judge: Leonie M. Brinkema, United States District Judge
     Date Filed: 04/21/2017
     Date NOA Filed:      Date Rec’d COA:
     10/24/2017      10/26/2017
Prior Cases:
Current Cases:


Plaintiff – Appellant
Mitchell R. Swartz, –
Direct: 781-237-3625
[NTC Pro Se] 16 Pembroke Road
Weston, MA 02493
Defendant – Appellee
Thomas W. Krause, Esq., Deputy Solicitor
Email: thomas.krause@uspto.gov
[LD NTC Government] United States Patent and Trademark Office
Office of the Solicitor
PO Box 1450
Mail Stop 8
Alexandria, VA 22313Tracy Doherty-McCormick, U.S. Attorney
[COR Government] Office of the United States Attorney
2100 Jamieson Avenue
Alexandria, VA 22314Michael S. Forman, Associate Solicitor
Email: michael.forman@uspto.gov
[COR NTC Government] United States Patent and Trademark Office
Office of the Solicitor
PO Box 1450
Mail Stop 8
Alexandria, VA 22313Benjamin T. Hickman, Associate Solicitor
Email: Benjamin.Hickman@uspto.gov
[COR NTC Government] United States Patent and Trademark Office
Office of the Solicitor
PO Box 1450
Mail Stop 8
Alexandria, VA 22313Kimere Jane Kimball, Assistant U.S. Attorney
Email: kimere.kimball@usdoj.gov
[COR NTC Government] Office of the United States Attorney for the Eastern District of Virginia
2100 Jamieson Avenue
Alexandria, VA 22314
JOSEPH MATAL, Performing the Functions & Duties of Director of the US Patent & Trademark Ofc
Terminated: 02/08/2018
Defendant – Appellee
ANDREI IANCU, Director, U.S. Patent and Trademark Office
Defendant – Appellee
Thomas W. Krause, Esq., Deputy Solicitor
[LD NTC Government] (see above)Tracy Doherty-McCormick, U.S. Attorney
[COR Government] (see above)Michael S. Forman, Associate Solicitor
[COR NTC Government] (see above)Benjamin T. Hickman, Associate Solicitor
[COR NTC Government] (see above)Kimere Jane Kimball, Assistant U.S. Attorney
[COR NTC Government] (see above)

Plaintiff – Appellant



Defendants – Appellees

Links with ECF numbers are to PACER. Where I have documents locally, they are linked in the third column. For example, see  Swartz v PATO ECF 38, and Swartz v Lee et al, the second docket list below, ECF 36.

10/31/2017  1  3 pg

4.94 MB

Appeal docketed. Received: 10/26/2017. [471937] Entry of Appearance due 11/14/2017. Appellant/Petitioner’s Informal brief is due 11/21/2017. [FMS] [Entered: 10/31/2017 01:40 PM]
11/13/2017  2  2 pg,

165.3 KB

Entry of appearance for Thomas W. Krause as of counsel for Appellee Joseph Matal. Service: 11/13/2017 by US mail, email. [474720] [Thomas Krause] [Entered: 11/13/2017 11:38 AM]
11/13/2017  3  2 pg,

169.99 KB

Entry of appearance for Nathan K. Kelley as principal counsel for Appellee Joseph Matal. Service: 11/13/2017 by US mail, email. [474729] [Nathan Kelley] [Entered: 11/13/2017 12:04 PM]
11/14/2017  4 2 pg,

82.1 KB

Entry of appearance for Michael S. Forman as of counsel for Appellee Joseph Matal. Service: 11/14/2017 by US mail, email. [475193] [Michael Forman] [Entered: 11/14/2017 10:02 AM]
11/14/2017  5  2 pg

82.25 KB

Entry of appearance for Benjamin T. Hickman as of counsel for Appellee Joseph Matal. Service: 11/14/2017 by US mail, email. [475202] [Benjamin Hickman] [Entered: 11/14/2017 10:09 AM]
11/14/2017  6  1 pg

59.51 KB

Entry of appearance for Kimere J. Kimball as of counsel for Appellees Joseph Matal and PATO. Service: 11/14/2017 by US mail, email. [475275] [Kimere Kimball] [Entered: 11/14/2017 11:50 AM]
11/15/2017  7  2 pg

81.94 KB

Entry of appearance for Michael S. Forman as of counsel for Appellees Joseph Matal and PATO. Service: 11/15/2017 by US mail, email. [475643] [Michael Forman] [Entered: 11/15/2017 09:57 AM]
11/15/2017  8   2 pg

82.27 KB

Entry of appearance for Benjamin T. Hickman as of counsel for Appellees Joseph Matal and PATO. Service: 11/15/2017 by US mail, email. [475645] [Benjamin Hickman] [Entered: 11/15/2017 09:59 AM]
11/15/2017  9  2 pg

165.2 KB

Entry of appearance for Thomas W. Krause as of counsel for Appellees Joseph Matal and PATO. Service: 11/15/2017 by US mail, email. [475651] [Thomas Krause] [Entered: 11/15/2017 10:31 AM]
11/15/2017  10  2 pg

169.92 KB

Entry of appearance for Nathan K. Kelley as principal counsel for Appellees Joseph Matal and PATO. Service: 11/15/2017 by US mail, email. [475814] [Nathan Kelley] [Entered: 11/15/2017 01:55 PM]
12/29/2017  12 Open Restricted Document 0 pg, 0 KB TENDERED from Appellant Mitchell R. Swartz. Title: OPENING BRIEF. [486996] This brief has been rejected. See Doc No. [14] [FMS] [Entered: 01/03/2018 12:08 PM]
12/29/2017  13 Open Restricted Document 0 pg, 0 KB TENDERED from Appellant Mitchell R. Swartz. Title: JOINT APPENDIX. [487571] The appendix has been rejected. See Doc No. [15] [FMS] [Entered: 01/05/2018 11:26 AM]
01/02/2018  11  1 pg

160.49 KB

Entry of appearance for Mitchell R. Swartz as pro se for Appellant Mitchell R. Swartz. Service: 01/02/2018 by clerk. [486791] [FMS] [Entered: 01/02/2018 04:56 PM]
01/05/2018  14  2 pg

25.13 KB

NOTICE OF REJECTION: The opening brief of appellant Mitchell R. Swartz [12], is not in compliance with the rules of this court and is therefore rejected for filing. Brief due 01/19/2018. Appellees Joseph Matal, Performing the Functions & Duties of Director of the US Patent & Trademark Ofc and United States Patent and Trademark Office brief is due 02/14/2018. Service as of this date by Clerk of Court. [487574] [FMS] [Entered: 01/05/2018 11:42 AM]
01/05/2018  15 2 pg

24.27 KB

NOTICE OF REJECTION: The appendix of appellant Mitchell R. Swartz [13], is not in compliance with the rules of this court and is therefore rejected for filing. Appendix is due 01/19/2018. Service as of this date by Clerk of Court. [487591] [FMS] [Entered: 01/05/2018 12:27 PM]
01/18/2018  16  1 pg

165.59 KB

Entry of appearance for Mitchell Swartz as pro se for Appellant Mitchell R. Swartz. Service: 01/24/2018 by clerk. [492314] [FMS] [Entered: 01/24/2018 12:26 PM]
01/18/2018  17  82 pg

17.09 MB

TENDERED from Appellant Mitchell R. Swartz. Title: CORRECTED OPENING BRIEF. [492346] [FMS] [Entered: 01/24/2018 02:01 PM]
01/18/2018  18  267 pg

28.66 MB

TENDERED from Appellant Mitchell R. Swartz. Title: CORRECTED JOINT APPENDIX. [492347] [FMS] [Entered: 01/24/2018 02:04 PM]
01/18/2018  19  2 pg

386.06 KB

Letter from Appellant Mitchell R. Swartz regarding corrected brief and appendix. Service: 01/24/2018 by clerk. [492349] [FMS] [Entered: 01/24/2018 02:06 PM]
01/18/2018  20  82 pg

17.09 MB

CORRECTED BRIEF FILED for Appellant Mitchell R. Swartz [17]. Number of Pages: 47. Service: 01/24/2018 by clerk. [492354] [FMS] [Entered: 01/24/2018 02:10 PM]


01/18/2018  21 
267 pg, 28.66 MB
CORRECTED APPENDIX FILED for Mitchell R. Swartz [18]. Number of Pages: 267. Service: 01/24/2018 by clerk. [492365] [FMS] [Entered: 01/24/2018 02:17 PM]

Appendix-1122-DeclationsS1 [sic] [from Dr. Swartz] (30 pages,  11.5 MB] (This document is not on PACER)

18-1122-21 267 pages, 29.6 MB

02/08/2018  22 Official caption revised reflect Andrei Iancu as Director of the US Patent & Trademark Office. The official caption is reflected on the electronic docket under the listing of the parties and counsel. Service as of this date by Clerk of Court. [496418] [FMS] [Entered: 02/08/2018 03:17 PM]
02/14/2018  23  49 pg

248.6 KB

TENDERED from Appellees Iancu and PATO. Title: RESPONSE BRIEF. Service: 02/14/2018 by US mail, email. [497561] [Michael Forman] [Entered: 02/14/2018 10:30 AM]
02/14/2018  24 553 pg

80.13 MB

TENDERED from Appellees Iancu and PATO. Title: SUPPLEMENTAL BRIEF/APPENDIX. Service: 02/14/2018 by US mail, email. [497572] [Michael Forman] [Entered: 02/14/2018 10:47 AM]
02/14/2018  25  49 pg

251.81 KB

BRIEF FILED for Appellees Iancu and PATO [23]. Number of Pages: 38. Service: 02/14/2018 by email. The paper copies of the brief should be received by the court on or before 02/23/2018. Appellant Mitchell R. Swartz reply brief is due 03/05/2018. [497987] [FMS] [Entered: 02/15/2018 10:39 AM]
02/14/2018  26  553 pg

80.25 MB

APPENDIX FILED (SUPPLEMENTAL) for Iancu and PATO [24]. Number of Pages: 553. Service: 02/14/2018 by email. The paper copies of the brief should be received by the court on or before 02/23/2018. [497988] [FMS] [Entered: 02/15/2018 10:47 AM]
02/15/2018  27 6 paper copies of the Opening Response Brief [25] received from Appellees Iancu and PATO. [498409] [JCP] [Entered: 02/16/2018 09:07 AM]
02/15/2018  28 6 paper copies of the Supplemental Appendix [26] received from Appellees Iancu and PATO. [498424] [JCP] [Entered: 02/16/2018 09:32 AM]
03/19/2018  29  71 pg

12.35 MB

Document construed as MOTION of Appellant Mitchell R. Swartz for leave to file an oversized reply brief out of time. Any response is due within 10 days of service [Consent: not addressed]. Service: 03/15/2018 by US mail. [510467] [MJL] [Entered: 04/04/2018 08:59 AM]

18-1122_ReplyBrief_AppellateCourtF15 [kindly provided by Dr. Swartz] (65 pages, 2.4 MB)

03/19/2018  31  71 pg

12.87 MB

TENDERED from Appellant Mitchell R. Swartz. Title: REPLY BRIEF. [514127] –[Edited 04/19/2018 by CAB to correct date tendered] [JBR] [Entered: 04/17/2018 01:41 PM]
04/17/2018  30  2 pg

66.3 KB

ORDER filed. The motion [29] is granted, the reply brief is accepted for filing. (Per Curiam). Service: 04/17/2018 by clerk. [514107] [NEL] [Entered: 04/17/2018 12:31 PM]


04/17/2018  32  71 pg, 12.87 MB REPLY BRIEF FILED for Appellant Mitchell R. Swartz [31]. Number of Pages: 63. Service: 03/15/2018 by US mail. [514131] [JBR] [Entered: 04/17/2018 01:45 PM]

(see DE 29?)

05/21/2018  33 NOTICE OF CALENDARING. Panel: 1807J. Case scheduled Jul 13, 2018 10:00 a.m. at the United States Court of Appeals for the Federal Circuit (Howard T. Markey National Courts Building, 717 Madison Place, NW Washington, DC 20439), Courtroom 402. Argument is not required and this case will be submitted to the panel on the date indicated. Please review the Notice of Submission without Oral Argument. [523285] [JAB] [Entered: 05/21/2018 02:44 PM]
07/09/2018  34  11 pg

1.64 MB

MOTION of Appellant Mitchell R. Swartz to correct court order [Consent: not addressed]. Service: 07/09/2018 by clerk. [534556] [SMJ] [Entered: 07/09/2018 04:28 PM]


07/09/2018  35  19 pg

3.29 MB

MOTION of Appellant Mitchell R. Swartz to reschedule argument (entitled ‘Motion For an Enlargement of Time and/or For Leave to Enter Memorandum’) [Consent: not addressed]. Service: 07/09/2018 by clerk. [534568] [SMJ] [Entered: 07/09/2018 04:33 PM]


07/10/2018  36  3 pg

78.21 KB

ORDER filed denying [35] construed motion to reschedule argument filed by Mitchell R. Swartz; dismissing-as-moot [34] motion to correct/supplement filed by Appellant Mitchell R. Swartz. By: (Per Curiam). Service as of this date by the Clerk of Court. [534853] [SMJ] [Entered: 07/10/2018 01:25 PM]


07/13/2018  37 Submitted ON THE BRIEFS. Panel: Judge: Prost , Judge: Newman , Judge: Linn [JAB] [Entered: 07/13/2018 11:04 AM]
07/17/2018  38  10 pg

252.39 KB

OPINION and JUDGMENT filed. The judgment or decision is: Affirmed. (Nonprecedential Per Curiam Opinion). (For the Court: Prost, Chief Judge; Newman, Circuit Judge and Linn, Circuit Judge). [536334] [SMJ] [Entered: 07/17/2018 09:13 AM]


07/19/2018  39  2 pg

252.5 KB

Notice of Withdrawal of Director’s Counsel – Nathan K. Kelley. Service: 07/19/2018 by clerk. [536940] [18-1167, 18-1171, 18-1285, 18-1286, 18-1289, 18-1595, 18-1609, 18-1633, 18-1651, 18-1659, 18-1710, 18-1711, 18-1712, 18-1714, 18-1730, 18-1772, 18-1773, 18-1828, 18-1847, 18-1876, 18-1883, 18-1901, 18-1998, 18-2017, 18-2048, 18-2049, 17-1765, 17-1825, 17-2292, 17-2294, 17-2392, 17-2465, 17-2543, 17-2047, 17-2620, 18-1071, 18-1172, 18-1173, 18-1557, 18-1593, 18-1795, 18-1895, 18-2000, 17-2122, 17-2124, 17-2239, 17-2241, 18-1013, 18-1047, 18-1048, 18-1070, 18-1242, 18-1353, 18-1849, 18-1958, 18-1992, 18-1994, 18-1995, 18-2043, 17-2364, 17-2579, 17-2580, 17-2593, 17-2594, 18-1067, 18-1069, 18-1077, 18-1163, 18-1166, 18-1253, 18-1311, 18-1368, 18-1385, 18-1426, 18-1944, 18-1968, 18-2031, 18-2032, 18-2069, 18-2106, 17-2503, 17-2624, 18-1000, 18-1060, 18-1065, 18-1066, 18-1416, 18-1461, 18-2090, 15-1242, 15-1944, 15-1945, 15-1946, 16-1794, 16-2222, 16-2470, 16-2548, 16-2640, 16-2669, 16-2736, 17-1159, 17-1265, 17-1266, 17-1268, 17-1362, 17-1425, 17-1486, 17-1578, 17-1582, 17-1629, 17-1666, 17-1722, 17-1827, 17-1849, 17-1870, 17-1953, 17-1954, 17-1955, 17-1957, 17-1962, 17-1963, 17-2037, 17-2038, 17-2069, 17-2208, 17-2232, 17-2244, 17-2255, 17-2263, 17-2361, 17-2424, 17-2426, 17-2447, 17-2524, 18-1085, 18-1088, 18-1122] [TAR] [Entered: 07/19/2018 10:11 AM]

Swartz v Lee

U.S. District Court
Eastern District of Virginia – (Alexandria)

Swartz v. Lee et al
Assigned to: District Judge Leonie M. Brinkema
Referred to: Magistrate Judge Theresa Carroll Buchanan

Case in other court:  US Federal Circuit, 18-01122

Cause: 35:145 Patent Non-Infringement- Patent Applicant is Dissatisfied with PTO Decision

Date Filed: 04/21/2017
Date Terminated: 08/22/2017
Jury Demand: Plaintiff
Nature of Suit: 830 Patent
Jurisdiction: U.S. Government Defendant
Mitchell R. Swartz represented by Mitchell R. Swartz
16 Pembroke Road
Weston, MA 02493
Michelle Lee
Acting Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office
TERMINATED: 08/17/2017
represented by Kimere Jane Kimball 
US Attorney’s Office (Alexandria-NA)
2100 Jamieson Avenue
Alexandria, VA 22314
Email: kimere.kimball@usdoj.gov
United States Patent and Trademark Office represented by Kimere Jane Kimball 
(See above for address)
Joseph Matal
Performing the Functions and Duties of the Under Secretary of Commerce for Intellectual and Director of the United States Patent and Trademark Officce
represented by Kimere Jane Kimball 
(See above for address)
Date Filed # Docket Text
04/21/2017 1 COMPLAINT against Michelle Lee, United States Patent and Trademark Office ( Filing fee $ 400, receipt number XXXXX.), filed by Mitchell R. Swartz. (Attachments: # 1 Letter, # 2 Civil Cover Sheet)(dest, ) (Entered: 04/24/2017)

VA-17-CV482_Compl0419F6 (122 pages, 11.5 MB) [kindly provided by Mitchell Swartz]

04/21/2017 2 NOTICE of Appearance pro se by Mitchell R. Swartz (dest, ) (Entered: 04/24/2017)
04/21/2017 3 Declaration of Robert Smith by Mitchell R. Swartz. (dest, ) (Entered: 04/24/2017)
04/21/2017 4 Declaration of Dr. Frank Gordon by Mitchell R. Swartz. (dest, ) (Entered: 04/24/2017)
04/21/2017 5 Declaration of Dr. Brian Ahern by Mitchell R. Swartz. (dest, ) (Entered: 04/24/2017)
04/21/2017 6 Declaration of Dr. Jean-Paul Biberian by Mitchell R. Swartz. (dest, ) (Entered: 04/24/2017)
04/21/2017 7 Declaration of Gayle Verner by Mitchell R. Swartz. (dest, ) (Entered: 04/24/2017)
04/21/2017 8 Filing fee: $400, receipt number 14683065584 (dest, ) (Entered: 04/24/2017)
05/02/2017 9 Letter to the Court providing service addresses for defendants by Mitchell R. Swartz. (dest, ) (Entered: 05/03/2017)
05/03/2017 10 Summons Issued to be served via SPS mailed to Plaintiff as to Michelle Lee, United States Patent and Trademark Office, U.S. Attorney and U.S. Attorney General (dest, ) (Entered: 05/03/2017)
05/17/2017 11 SUMMONS Returned Executed as to U.S. Attorney; served on 5/17/2017, answer due 7/17/2017. (dest, ) (Entered: 05/17/2017)
05/17/2017 12 SUMMONS Returned Executed as to U.S. Attorney General; served on 5/17/2017. (dest, ) (Entered: 05/17/2017)
05/17/2017 13 SUMMONS Returned Executed as to Michelle Lee; served on 5/17/2017 (dest, ) (Entered: 05/17/2017)
05/17/2017 14 SUMMONS Returned Executed as to U.S. Patent and Trademark Office; served on 5/17/2017. (dest, ) (Entered: 05/17/2017)
07/17/2017 15 MOTION to Dismiss for Failure to State a Claim with Roseboro,. by Michelle Lee, United States Patent and Trademark Office. (Kimball, Kimere) (Entered: 07/17/2017)
07/17/2017 16 MOTION to Dismiss for Lack of Jurisdiction with Roseboro,. by Michelle Lee, United States Patent and Trademark Office. (Kimball, Kimere) (Entered: 07/17/2017)
07/17/2017 17 Roseboro Notice as to Motion to Dismiss (Dkt Nos. 15, 16) by Michelle Lee, United States Patent and Trademark Office (Kimball, Kimere) (Entered: 07/17/2017)
07/17/2017 18 Memorandum in Support re 16 MOTION to Dismiss for Lack of Jurisdiction with Roseboro,., 15 MOTION to Dismiss for Failure to State a Claim with Roseboro,. filed by Michelle Lee, United States Patent and Trademark Office. (Attachments: # 1 Exhibit Ex. 1 (‘691 Board Decision), # 2 Exhibit Ex. 2 (‘258 Board Decision), # 3 Exhibit Ex. 3 (‘058 Board Decision), # 4 Exhibit Ex. 4 (‘765 Board Decision), # 5 Exhibit Ex. 5 (‘643 Board Decision, # 6 Exhibit Ex. 6 (DIA Report), # 7 Exhibit Ex. 7 (DTRA Report), # 8 Exhibit Ex. 8 (‘457 Specification), # 9 Exhibit Ex. 9 (‘970 Specification), # 10 Exhibit Ex. 10 (‘058 Specification), # 11 Exhibit Ex. 11 (‘765 Specification), # 12 Exhibit Ex. 12 (Damelin Decl.), # 13 Exhibit Ex. 13 (Bartlett Decl.), # 14 Exhibit Ex. 14 (Unpublished Cases))(Kimball, Kimere) (Entered: 07/17/2017)

1-17-cv-00482-18-2 ‘258 Board Decision

07/17/2017 19 Notice of Hearing Date set for 9/15/17 re 16 MOTION to Dismiss for Lack of Jurisdiction with Roseboro,., 15 MOTION to Dismiss for Failure to State a Claim with Roseboro,. (Kimball, Kimere) (Entered: 07/17/2017)
07/18/2017 Set Deadlines as to 16 MOTION to Dismiss for Lack of Jurisdiction with Roseboro,., 15 MOTION to Dismiss for Failure to State a Claim with Roseboro,.. Motion Hearing set for 9/15/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/18/2017)
08/08/2017 20 MOTION for Leave to File Plaintiff’s Opposition to Defendant’s Motion to Dismiss by Mitchell R. Swartz. (Attachments: # 1 Letter)(dest, ) (Entered: 08/08/2017)
08/08/2017 21 MOTION to Strike Defendant’s Motion by Mitchell R. Swartz. (Attachments: # 1 Letter)(dest, ) (Entered: 08/08/2017)
08/08/2017 22 MOTION for Reciprocity Re: Roseboro by Mitchell R. Swartz. (dest, ) (Attachment(s): # 1 Letter) (dest, ). (Entered: 08/08/2017)
08/08/2017 23 Declaration of Dr. Mitchell Swartz by Mitchell R. Swartz. (Attachments: # 1 Letter)(dest, ) (Entered: 08/08/2017)
08/08/2017 24 MOTION to Appoint Counsel by Mitchell R. Swartz. (Attachments: # 1 Letter)(dest, ) (Entered: 08/08/2017)
08/08/2017 25 Memorandum in Opposition to Defendant’s Motion to Dismiss filed by Mitchell R. Swartz. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55 part 1, # 56 Exhibit 55 part 2, # 57 Exhibit 56, # 58 Exhibit 57, # 59 Exhibit 58, # 60 Attachment- Supreme Court of the United States case booklet)(dest, ) Modified on 8/8/2017 (dest, ). (Entered: 08/08/2017)



08/14/2017 26 MOTION for Extension of Time to File Response/Reply as to 16 MOTION to Dismiss for Lack of Jurisdiction with Roseboro,., 15 MOTION to Dismiss for Failure to State a Claim with Roseboro,. by Michelle Lee, United States Patent and Trademark Office. (Attachments: # 1 Proposed Order)(Kimball, Kimere) (Entered: 08/14/2017)
08/14/2017 27 ORDER- it is hereby ORDERED that Defendant’s motion for an extension of time is GRANTED; and it is hereby ORDERED that Defendant shall file its reply memorandum on or before August 17, 2017. Signed by District Judge Leonie M. Brinkema on 8/14/2017. (dest, ) (copy mailed to pro se) (Entered: 08/14/2017)
08/17/2017 28 NOTICE by Michelle Lee, United States Patent and Trademark Office of Substitution of Defendant (Kimball, Kimere) (Entered: 08/17/2017)
08/17/2017 29 REPLY to Response to Motion re 16 MOTION to Dismiss for Lack of Jurisdiction with Roseboro,., 15 MOTION to Dismiss for Failure to State a Claim with Roseboro,. filed by Michelle Lee, United States Patent and Trademark Office. (Attachments: # 1Exhibit Def. Ex. 15 (‘058 Final Rejection), # 2 Exhibit Def. Ex. 16 (‘643 Final Rejection))(Kimball, Kimere) (Entered: 08/17/2017)
08/17/2017 30 ORDER granting [Dkt. No. 20] Motion for Leave to File, and it is hereby ORDERED that plaintiff’s opposition brief is accepted for filing; and it is hereby ORDERED that plaintiff’s Motion to Strike [Dkt. No. 21] be and is DENIED; and it is hereby ORDERED that plaintiff’s Motion for Reciprocity [Dkt. No. 22] be and is DENIED. Signed by District Judge Leonie M. Brinkema on 8/17/2017. (see Order for further details) (dest, ) (copy sent as directed in the Order) (Entered: 08/17/2017)
08/22/2017 31 MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 8/22/2017. (dest, )(copy mailed to plaintiff by chambers) (Entered: 08/22/2017)
08/22/2017 32 ORDER- For the reasons stated in the accompanying Memorandum Opinion, defendant’s Motion to Dismiss [Dkt. Nos. 15 and 16] is GRANTED, and it is hereby ORDERED that the Complaint be and is DISMISSED WITH PREJUDICE, except for Count 3, which is DISMISSED WITHOUT PREJUDICE. Signed by District Judge Leonie M. Brinkema on 8/22/2017. (see Order for further details) (dest, ) (copy mailed to plaintiff by chambers) (Entered: 08/22/2017)


08/22/2017 33 JUDGMENT- Pursuant to the order of this Court entered on August 22, 2017 and in accordance with Federal Rules of Civil Procedure 58, JUDGMENT is hereby entered in favor of Joseph Matal and United States Patent and Trademark Office and against Michael R. Swartz. Signed by Clerk on 8/22/2017. (dest, ) (Entered: 08/22/2017)
09/01/2017 34 MOTION for Reconsideration re 33 Judgment, 32 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Dismiss/Lack of Jurisdiction, by Mitchell R. Swartz. (Attachments: # 1 Letter)(dest, ) (Entered: 09/07/2017)
09/01/2017 35 MOTION for Leave to File Memorandum in Support by Mitchell R. Swartz. (Attachments: # 1 Proposed Memorandum in Support, # 2 Exhibit 59, # 3 Exhibit 60, # 4 Exhibit 61, # 5 Exhibit 62, # 6 Exhibit 63 Part 1, # 7 Exhibit 63 Part 2, # 8 Exhibit 63 Part 3, # 9 Exhibit 64 Part 1, # 10 Exhibit Part 2, # 11 Exhibit Part 3, # 12 Exhibit 65)(dest, ) (Entered: 09/07/2017)
09/07/2017 36 ORDER- it is hereby ORDERED that plaintiff’s Motion for Leave to File a Memorandum in Support [Dkt. No. 35] be and is DENIED AS MOOT, and it is further ORDERED that plaintiffs Motion for Reconsideration [Dkt. No. 34] be and is DENIED. Signed by District Judge Leonie M. Brinkema on 9/7/2017. (see Order for further details) (dest, ) (copy mailed to Pro Se by chambers) (Entered: 09/07/2017)

MEMORANDUM OPINION granting motion to dismiss

10/24/2017 37 NOTICE OF APPEAL as to 33 Judgment, 31 Memorandum Opinion, 36 Order on Motion for Reconsideration, Order on Motion for Leave to File,, 30 Order on Motion for Leave to File, Order on Motion to Strike, Order on Motion for Miscellaneous Relief, 32 Order on Motion to Dismiss for Failure to State a Claim, Order on Motion to Dismiss/Lack of Jurisdiction, by Mitchell R. Swartz. Filing fee $ 505. (Attachments: # 1 Letter, # 2 Receipt)(dest, ) (Entered: 10/26/2017)
10/26/2017 Transmission of Notice of Appeal to US Federal Circuit re 37 Notice of Appeal, (dest, ) (Entered: 10/26/2017)
11/01/2017 38 USCA Case Number 18-1122 U.S. Federal Circuit for 37 Notice of Appeal, filed by Mitchell R. Swartz. (dest, ) (Entered: 11/01/2017)
07/17/2018 39 Opinion of USCA for the Federal Circuit decided 7/17/2018 re 37 Notice of Appeal- AFFIRMED(dest, ) (Entered: 07/17/2018)
07/17/2018 40 USCA for Federal Circuit JUDGMENT as to 37 Notice of Appeal, filed by Mitchell R. Swartz. (dest, ) Modified on 7/17/2018 to add document (dest, ). (Entered: 07/17/2018)


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07/20/2018 14:14:01


libel study

If you see this on an archive site, be sure to check the original URL for updates and possible corrections. These are research notes, as are many pages on this blog.

I have been libelled by the WikiMedia Foundation, by the issuance of a global ban with no foundation in fact, apparently based on private complaints considered valid without any opportunity to respond. The WMF appears to think that issuing a global ban with no explanation protects them from liability for libel. However, they have claimed that global bans are issued only rarely, for exceptional cases, to protect the community. The fact of the ban is being used as an element in a series of defamations, by a person known to be one of the complainers. I believe that I have sufficient cause, based on this, for action to require the WMF to lift the ban or to provide evidence, and specifically the complaint mails or other evidence and arguments considered by them. I need not prove libel to file an action, as long as the legal theory on which the filing is based is possibly valid. Here, I’m looking at information sites and cases that might relate to this issue.

As to the WMF, the primary claim would be for libel, from the global ban issuance. For a libel claim, the restrictions of the TOS on the liability, and court jurisdiction for action against the WMF may not apply.

As to the RationalWiki Foundation, a different legal theory might apply, it’s more difficult. My sense from what I have seen is that the RWF will take down defamatory material on demand, unless they see it as mission-critical. I did already email them, they ignored it. (and there is a claim from Oliver D. Smith that he was told this was deliberate. So the next step would be a certified demand letter to the registered agent.)

In all cases, as I understand the matter, communications from users of these web sites are not privileged and would be subject to discovery, and users are not protected from defamation for actions they take, the protections of Section 230 are for removal of material, not for provision of it.


As a minor point, the Wikinews article has, at the very end:

The Register has a long history of denigrating Wikimedia projects.

That is an obvious neutrality violation. The preceding text fails to distinguish between reporting and editorializing. The Register source was an editorial by Cade Metz, not “the Register.” This what you get when amateurs are given collective control. They play at journalism. In any case, the Register article is excellent.

Memorandum of law in support of motion to dismiss

47 U.S. Code § 230 – Protection for private blocking and screening of offensive material

isp-liability-for-internet-defamation looks good. (those who post defamation may be held liable. The liability of the ISP may vary with context and conditions. It’s looking to me like it might take a court order to force this, if the ISP is merely inactive. But if it takes a positive step that has the effect of defamation, it could become liable.

the-decline-and-fall-of-section-230/ is a gold mine to be carefully studied.

At this point, this is the bottom line. There is sufficient case law that it may be possible for an action for libel to survive a motion to dismiss, and a motion to dismiss will still require expenditure by the defendant. That would not allow the filing of a frivolous suit without associated hazards. If the cause of action is reasonably plausible, it need not be bulletproof to be effective for remediation purposes.

Further, the law does not protect the individuals who defamed, nor is the WMF or the RWF likely to defend them. The impersonation socking I have been describing has known individuals as perpetrators, very likely, and I do have evidence that can be used, and more evidence can be obtained lawfully. I will continue to study the case law and analysis.

(The issues with involved individuals, the WMF, and the RMF, are distinct and different.)

https://law.stackexchange.com/a/6822 confirms user liability, and site owner is protected if they take the libel down. That’s my understanding of Section 230. They cannot maintain the defense of “the community did it” in the face of a specific claim of defamation, unless they take it down. By taking an action on their own judgment, they become liable for defamation, if the action defames. I expect the WMF will argue that the action was needed for user protection, but that argument, given the facts, is false, and, more directly, the defamation involved in a global ban is unnecessary for protection. If they formally notified the user that they are prohibited from editing, and the user violates that, this would be a TOS violation, and it would then allow the use of the global lock tool and public announcement. The banned user would still have a right to see defamatory claims (the evidence considered), for possible action against those who  may have defamed.

At this point, I don’t know if this has been tested anywhere. Untested legal theories, if plausible, can make for actions that will survive summary judgment.

http://www.adlexsolicitors.co.uk/internet-defamation.htm focuses on UK law (some actions related to the issues may be filed in U.K. courts). They suggest a first response is a “lawyer letter.” Legally, a demand letter does not require a lawyer, in my opinion, but such a letter is more likely to be taken seriously. My interest will be that such letters be legally sufficient to put a site operator — or an individual — on notice that their behavior is defamatory, so that they may take remedial action, and if such action is reasonably prompt, it may allow, then, the “service provider” protection to be effective.

https://seqlegal.com/blog/10-things-you-should-know-about-libel again focuses on the UK.

This is handy.

Wikimedia Foundation
c/o CT Corporation System
818 West Seventh Street
Los Angeles, California 90017

and then

Business ID#: 4330247 Status: Active
Entity Name: THE RATIONALWIKI FOUNDATION, INC. Standing: Good Standing
Entity Type: Domestic Nonprofit Corporation Domestic State: New Mexico
Statute Law Code: 53-8-1 to 53-8-99
Mailing Address:
122 GIRARD SE, Albuquerque, NM 87106
Principal Place of Business in New Mexico:
122 GIRARD SE, Albuquerque, NM 87106

Character Of Affairs: Operating sites RationalWiki.org and EvolutionWiki.org and related.

Director Information

  • David Gerard: 122 Girard Blvd SE, Albuquerque, NM 87106
  • Aidan Bissell-Siders, 122 Girard Blvd SE, Albuquerque, NM 87106
  • Eric Doe 122 Girard Blvd SE, Albuquerque, NM 87106
  • Simon Peter Hughes 122 Girard Blvd SE, Albuquerque, NM 87106

Officer Information

  • Chief Operating Officer:Trent Toulouse 122 Girard Blvd SE, Albuquerque, NM 87106
  • Chief Executive Officer:Huw Powell 122 Girard Blvd SE, Albuquerque, NM 87106

08/04/2010 Certificate Of Incorporation THE RATIONALWIKI FOUNDATION, INC. 3 PAGES PERPETUAL 08/05/2010 893489

The RationalWiki article on the Foundation lists current directors as:

Below is mostly dicta.

There is a discrepancy. Huw Powell (RW User:Human) is not listed by New Mexico as a Director, but as the CEO. Openly real name. Human’s  edits to the John Fuerst article seemed designed to improve it (toward objectivity). As a board member, does Powell know about the deliberate lack of response to a complaint email, as claimed by Oliver Smith? Maybe I’ll ask him. Not the most urgent task on my list. Human has almost entirely stopped editing RW for the last six months.

David Gerard is, of course, David Gerard. Interesting that someone who has supported the libellers — generally indirectly and possibly maintaining plausible deniability , but quickly actioning requests — is on the Board. The claim of the RMF is that it does not make content decisions, but if Board members are active members with high privilege, and use that privilege, this is disingenuous. The RMF does, in fact, make content decisions, I’ve seen at least one page deletion made as official, with warnings to users not to restore the page. My guess: someone didn’t just send a complaining email, they took more substantial action. The WikiMedia Foundation not uncommonly does that with some kinds of complaints. The protections of Section 230 do not extend to the maintenance of alleged defamatory material or other illegal material after notice provided.

Simon Peter Hughes is openly Spud. As they say on RW, seems sane.

Aidan Bissel-Siders is probably this nice kid, who wrote this RW-interest paper, serious work addressing (actually taking the piss out of) a stupid claim. Fun. I’ve done a fair amount of that kind of writing, though not normally so sarcastic. However, that kind of sarcasm is so common on RW that I don’t yet see a clue as to which user Bissel-Siders might be. So far, the candidates are FuzzyCatPotato and Reverend Black Percy.

Eric Doe I could find nothing on with a quick search. However, Rev. Black Percy has not edited for over six months, but I’d expect Bissel-Siders to remain active (given his research paper and age). I vote for the latter as being FuzzyCatPotato.

From prior history, I expect I may see complaints on RationalWiki that I am “attacking” RW users here. Yet what I am actually doing is showing who is responsible for RationalWiki, the real people involved. Board members are presumably covered by errors and omissions insurance. This actually makes them attractive targets. However, the only board member where some liability might be imputed, so far, is David Gerard. (Basically, his action to support defamation would be asserted. It is not necessary to have proof to assert a claim; proof may not exist until discovery.

My guess is that the RMF will settle relatively easily, if pushed. With the WMF, I’ll be challenging a process they have used for a few years. I have no crystal ball.


Pro Se filing in US District Court

Lowdown on Lie-bull

I mentioned the other day that Ascoli65 was banned on LF for two weeks, by Alan Smith. Ensuing discussion has brought up some issues worthy of attention. So, first of all, this is the post for which Ascoli65 was banned:

Rossi vs. Darden aftermath discussions

The post — and the subsequent discussion of the censorship — were all off-topic.

Tuesday, 11:30 pm

@ Alan Smith,

my long and documented comment has been substituted by this words of yours.

Ascoli65 wrote:

The content of this post has been removed, since it contains nothing but thinly veiled attacks on Levi and UniBo, despite your assertions to the contrary. Do ir again and you may well be sanctioned or even banned.

This comment, apparently by Alan Smith, was argumentative, and, as well, was off-topic. A procedure had been established to move off-topic posts to the Playground — or to create a topic for them — and offensive posts to Clearance Items, though I think grossly offensive material was still being deleted, at least I’d expect so. My own practice is not to actually delete anything, but to possibly “trash” a clearly offensive post; it’s still in the database and can easily be recovered by me or anyone with admin privileges. Mildly offensive or irrelevant material may be moved to an appropriate topic or to a catch-all. Personally, I’d want to add notes where appropriate to maintain transparency. These considerations seem to have long been completely beyond the ken of Smith.

If the post was “long and documented” as claimed, deleting it was quite offensive, unless a procedure exists for the user to recover it. (On Discus blogs, like ECW, when a post is deleted, it appears that it is still accessible through the user’s profile, at least by the user.)

I’m very surprised of your decision to completely cancel my comment. Not greened, not moved in the Playground or Clearance Items threads, but immediately deleted. I think, it’s the first time this happen in this abrupt way, and I don’t see any reason for such a reaction. I didn’t used offensive words, and I only reported documented facts.

It was probably quite unexpected. Ascoli may have done more than present “documented facts,” but … the offense in this post was quite mild, compared to what is routinely tolerated when it is not Levi or Unibo being “attacked.” Alan is personally offended, apparently. Darden can be attacked, Dewey Weaver can be attacked, and often nothing is done.

My comment was not a “thinly veiled attack”, it was just a “open plain evaluation” of the apparent behavior of a public researcher at a public university which publicly claimed on many public media of having measured 12 kW of alleged excess heat generated by a table top device during the public demo held in Bologna on January 14, 2011. This conclusion of him was based on a couple of presumed data that I can’t explain otherwise, except for an intentional misrepresentation of experimental data. If you have any other explanation, why don’t you provide it?

Smith greened this paragraph as offensive. “Intentional misrepresentation of experimental data” is, in fact, a serious charge, albeit consistent with Ascoli65’s long-term claim that there was some sort of falsification of data in those early reports. I never found his claims plausible, but, like many who write on LENR Forum, he was quite sure of his evidence.

I’m going to agree with Smith that this was inappropriate, but it was merely a failure of ability to imagine alternate explanations, and was far short of ban-worthy (though any offense can be ban-worthy if it persists after warning). Much more direct claims of false statements have been made about many others involved in Rossi v. Darden, and commonly. Drawing the line here, while not covering more egregious possible libels, is bizarre and unskillful. The effect is chilling.

Apparently one may strongly criticize or even insult, depending on whom it offends.

I think Ascoli65 genuinely did not understand, and because that paragraph was greened and not deleted, it was not a repeat of the allegedly deletion-worthy offense, so blocking him because he questioned the censorship was offensive and a violation of civilized norms — i.e., what Smith below accuses.

My comment was in theme. THH had just accused Levi of practicing “bad science” following a mistake in the emissivity used in the Lugano report. This aspect seems to be quite controversial and has given rise to hundreds, perhaps thousands of comments in recent years.

Ascoli is making a false parallel. I would not like THH using “bad science,” if he did. The mistake was a mistake. The failure to require a full control was worse. Allowing the work to be so strongly guided by Rossi was worse. It gets pretty bad, all right, but I have never seen evidence of actual data falsification on the part of Levi and the other professors. Ascoli did not quite accuse Levi of that, but of “intentional misrepresentation.” That’s close enough to be considered falsification. It’s an offensive claim, and, indeed, in some contexts, could even be criminal libel.

On the contrary, the inconsistency between the pump capacity and the flow rate reported in the UniBo document issued on January 2011 is much more apparent and incontestable. In fact, Levi claimed to have calibrated the pump for 2 weeks, but on the front panel of that pump was clearly indicated a max output of 12 L/h, a value much lower than that one he claimed in his report (equivalent to 17.6 L/h).

That statement is not libelous. By the way, the “label” is, as Rossi correctly pointed out, not a maximum capacity, but a minimum guaranteed capacity at the specific pressure, and under some conditions actual flow could exceed that. This is Rossi’s argument on Lewan’s blog and it is not exactly wrong, except that he then proceeds to use this fact as a justification for making probably false claims.

The word “capacity” implies a maximum!

From 12 l/h guaranteed to 17.6 l/h actual might well be possible for a real pump under some conditions. The current testing being done by Alan Fletcher is showing a pump rated at 32 l/h at 2 bar, actually pumping maybe 40 l/h at low pressure. That is 125% of rated flow. The Levi claim is 147%. Maybe. Different model pump.

I would never accuse a professional scientist of data falsification based on evidence this thin. But, again, libel is fairly common on LF.

I can’t understand why these considerations are not allowed in this forum. Which specific rules do they break?

Smith then adds his comment in bold:

Your comment above breaks the rules of civilised behaviour just for a start.

That is an offensive comment. An experienced moderator will never argue with a person they are sanctioning, it inflames sensibilities. The issue is civility, and Smith’s comment is outrageously uncivil, much more so than Ascoli65’s.

As -despite your denial- so did almost every line in your deleted post which actually contained a criminal liable (in some jurisdictions). Accusing somebody who is not a member here of (effectively) deliberate scientific fraud from behind your avatar is certainly worthy of a 2 week ban. And you just got it. Alan.

I find Smith’s claim likely exaggerated. Levi is a “public figure” in the Rossi v. Darden case. Others not members have been accused of fraud, lying, data falsification, etc. I agree that this could be libel, though generally truth is a defense. There are other defenses as well.

That Smith enforces a rule against libel could actually create risk for the blog owner, if it is enforced selectively. There are also issues around anonymity.

So some discussion ensued:

Alan Smith wrote:

Hi Jed. My interaction with the now banned (for 2 weeks) ‘Ascoli’ had nothing to do with a debate on scientific ethics. The deleted post contained what could be considered – in almost any jurisdiction outside the USA – to be a criminal libel, repeated twice in the thin disguise of a question. If you had been the target of it- or indeed MY or Kirk I would have taken precisely the same action. Since Ascoli hides behind a screen-name libelling somebody on the web takes zero courage on the part of the poster, but does carry risks for other parties involved in publishing this forum.

The question asked by Ascoli was actually what it was about his question that was bannable. He apparently repeated the question in order to ask. He could very simply have been told. Instead he was, himself, insulted, though not libelled. “Hides behind” is uncivil, to be sure. Alan Smith is commonly terse, avoiding clear and complete answers to questions. It was easier to accuse Ascoli65 than to tell him where the border not to cross lies. That might actually take some thought, and, problem is, the border Ascoli crossed — in my opinion — is crossed by many so then the next question would be why was this enforced strictly and rather abruptly with Ascoli — who was being polite — and not with so many others? My answer is “Alan Smith.”

Jed Rothwell wrote:

Libel is never criminal in the U.S. as far as I know. It is always a civil matter. I do not think it is a good idea to have the police involved. This web site is based in the U.S., so U.S. laws apply, and you don’t need to worry about criminal libel.

Alan Fletcher wrote: (in response to Jed)

According to wiki 17 states have Criminal Defamation Laws. In Florida it’s a misdemeanor Florida Statutes Chapter 836

Lots of legal foo, but admins, note : 

836.03 Owner or editor of the paper also guilty.—Any owner, manager, publisher or editor of any newspaper or other publication who permits any anonymous communication or communications such as is signed otherwise than with the true name of the writer, and such name published therewith to appear in the columns of the publication in which said communication any person is attacked in his or her good name, or it is attempted to bring disgrace or ridicule upon any person, such owner, manager, publisher or editor shall be guilty of a misdemeanor of the first degree

Kudos to Fletcher for providing links. The Wikipedia article includes this:

Section 230 of the Communications Decency Act of 1996 generally immunizes from liability parties that create forums on the Internet in which defamation occurs from liability for statements published by third parties. This has the effect of precluding all liability for statements made by persons on the Internet whose identity cannot be determined.

That is, the web site owner is not liable. (The author of the libel would be liable.) The owner could become liable under some circumstances. The decision to “publish” on LENR Forum is not made by moderators or administrators. However, this may shift if there is a protest. The Communications Decency Act supersedes state laws.

Alan Smith replied:

The server you see may be in the US Jed, but the publisher is in the EU. That’s what counts I beleive.

Alan is sliding down a slippery slope by considering David Nygren the “publisher.” Nygren lives in Sweden, apparently. Sweden apparently has criminal libel laws; this was,. I think, pointed out to Sifferkoll. Sifferkoll’s main protection has been inertia, because he’s written a lot that is clearly libel. But Nygren has not libelled Levi. He simply owns a blog where someone may have done this. I think Ascoli65 is Italian. I doubt there is any risk to Nygren, unless he refuses to cooperate with a libel investigation. I also doubt that any action would be initiated against Ascoli65 for his level of offense.

In any case, there are what may be complex issues of jurisdiction. Nobody commenting so far is an attorney, and neither am I, though I know some.

Being a blogger, I need to be better informed. So: Online Defamation Law.

That’s about U.S. law. There is a source on English libel law, London being “a town called Sue.”

The author of that was asked: Could I be liable if someone uses my blog to post a defamatory message? He replied:

Potentially, yes

As the publisher of a blog, you could in theory be held liable in respect of defamatory material posted by others on the blog.

There are two main approaches to dealing with this risk:

• first, you can review all material before it is published, and refrain from publishing anything risky;
• second, you can seek to take advantage of the provisions of Section 1 of the Defamation Act 1996 and Regs 17-19 of the Ecommerce Regulations.

This second approach is the usual one, and typically involves a publisher doing the following sorts of things:

• prohibiting the posting of defamatory and other unlawful content in the blog T&Cs;
• providing an effective abuse notification procedure;
• not systematically reviewing or editing content posted on the site; and
• removing risky content promptly following notification of a problem.

 “Not systematically reviewing or editing content” would be a reference to the idea I mentioned above, that deleting some libels and not others could create risk that might otherwise be absent. Ideally, there would be a TOS to which users agree, and then clear procedures for dealing with violations of the TOS. LENR Forum never created this, or, more accurately, there was a feeble and naive attempt that proceeded to be ignored.

Very few users like to see their content deleted. If a blog wants to encourage users to write substantial contributions, deleting it without notice or opportunity for recovery is a huge insult to any writer. LENR Forum uses idiosyncratic software, I don’t know what tools are available. This is a WordPress blog, and I can easily and quickly hide any content, without deleting it. That is, if the author wants a copy, I could (and would) send it to him or her. This avoids the worst admin abuses. Others still exist, but, bottom line, the owner owns the site and may delegate authority. But others can also point to abuses or moderator incivility!

When a site comes to enjoy wide public participation, users may come to expect fair treatment, and when it doesn’t seem fair, sometimes they develop a grudge, and Wikipedia administrators created highly offended users that proceeded to engage in sock puppetry that lasted for years, with thousands of accounts created, wasting countless hours of admin time. Some of that was necessary, perhaps, but it was also clear, when I investigated cases, that there had been abuse of users, and it was very difficult to address. The abusers were highly privileged.

I have seen no case of such revenge posting on LF. However, there are some blatant trolls. Activities like that, tolerated, will drive away many otherwise productive participants, eventually. Ever wonder why few real-name users are women? Why actual scientists rarely post on LENR-Forum?

Beyond pointing to that British site, I’m not summarizing libel law for bloggers, though I’ll be happy to discuss it. This is an area of law which is shifting, as one can tell from the EFF coverage.


I found this Pennsylvania site interesting. Pennsylvania Newspaper Handbook – Libel.

Newspapers are held to a stricter standard, in some cases, but libel is libel and this and the pages I have linked above cover the definition and give advice about avoiding libel that any blog, if it is to develop a reputation for utility and reliability, should understand.

Looking at it again, and reviewing all this, the comment of Alan Smith implying that David Nygren was the “publisher” who might be held responsible for libel, was a stretch, particularly since the particular incident he was discussing did not involve a publication decision. As well, deletion is a form of retraction, and does not defend against a libel claim for something published, it may merely mitigate damages.

Rossi, in many posts and filings, and in my opinion, did libel others. However, there are specific exceptions in libel laws for court filings, and for obvious reasons. Nevertheless others, repeating the claims in those primary sources, presenting them as fact (instead of as allegations), also libelled, and may not have had that necessity defense. Is Frank Acland responsible for libels posted to ECW? Not unless he specifically approves of them. Thus by moderating some users, he is creating a (low) risk of a prosecution for libel. He has less risk if the user decides to publish or not.

The internet is still a frontier, and frontiers can be lawless, or, more accurately, law may not be settled. Some risks might exist in theory, but in practice, there is no risk. Until there is a crazy plaintiff! — or one who decides, “enough is enough!” and goes ahead, damn the expense!

The blogger most at risk in what I’ve seen is Sifferkoll. And maybe Rossi, for JONP. (I have not reviewed his JONP posts from this point of view. Many “insults” are not libel. Context matters. Rossi does not seem to have an open blog, I believe all posts must be approved. That can create liability for what those users post, i.e., approval is publication.

Many libel targets will not sue, because it can look very, very bad. Consider Levi. Suppose I call Levi a “blithering idiot.” First of all, not libel, legally, if one studies the sources I’ve given. Just an insult, one which might enrage Levi or his friends. However, suppose I claim that he altered or faked data. And then he sues me. A defense is truth, and truth may be decided by a jury. As well, my state of mind is an issue. I’m media, and Levi is, in this field, a public figure. That’s a defense. I might be able to show truth or, given “public figure” and “influence,” at least reasonable cause to present information. “Proof” in a civil case is preponderance of the evidence, it need not be absolute. I think any sane lawyer would advise Levi to let sleeping dogs lie, and maybe to tolerate some level of barking.

There is a list of “red flag” words on the Pennsylvania site. These words are relatively common on LENR Forum. Alan Smith was not wrong to identify the Ascoli65 post as libelous, but, in context, he had singled out a mild case to enforce a rule that was vague and probably not understood by the user, instead of doing what the user asked, to explain it to him. It is as if the real rule was “if you have to ask, you’re banned!”

Dewey Weaver’s comment about LF moderation was “amateur hour.” Technically, of course, LF moderators are amateurs, but some amateurs become experts. Some don’t. Some refuse to learn, and simply blame others. LF had been doing a better job, with moving comments instead of deletion. I never liked green ink, it’s ugly. However, it is far better than raw deletion. I boycotted LF when Smith deleted *many* comments that he considered off-topic, and I said “until this is addressed,” which could mean that the Staff community restrained Alan (with removal of privileges being the extreme sanction, if the moderator refuses to cooperate). LF Staff does not discuss issues publically, which can make it a star chamber. I was banned, by Alan, apparently — banned users cannot read their own private messages — as retaliation for declaring a boycott, surely a juvenile and amateurish response. But the entire Staff is responsible, it is not just Alan. We are responsible for what we tolerate and allow. I have friends on that Staff. I was basically told that the situation was hopeless.

This incident demonstrates that it’s still a mess. Alan Smith has a high personal conflict of interest. He runs Looking for Heat, a generally laudable exercise, with a problem: it is almost entirely about nickel hydride exploration, which depended for its appeal heavily on Rossi, and, as well, on Levi. There are plenty of attempts to “replicate” Rossi, which is, scientifically, a problem, because a replication is not possible without full information about the original experiment. So at best, independent “replications” without that information, are a kind of “confirmation,” i.e., that something happens. A genuine replication would also be quantitatively confirming. What is often an “indication,” can be the file-drawer effect. Many people try, a few make calorimetric errors…. and often only positive results are published, the rest remain in the “file drawer,” hence the name of the effect.

So Smith, in defending Levi, is promoting his own interests. And he did so in a quite uncivil way, while pretending to be disallowing incivility. Smith does not know or understand recusal, apparently. And in that, he has been, as far as we can tell, unrestrained by the administrative staff (at least one member of which, probably more than one, has the power to assign and remove moderator privileges.) In the end, the highest responsibility is with David Nygren, the owner.

Nygren sells advertising. “Vigorous discussion” — which can be an alternate description of libel and flame wars — can improve traffic, possibly improving revenue. Or that motive is not applicable to him. I really don’t know, because Nygren is mostly silent.

Taken from the list of red flag words, ones that I’ve seen (or close equivalents), on LENR Forum, E-Cat Word, JONP, or Sifferkoll (on his own blog or on LENR Forum) — or here on CFC, for which I am, at present, responsible:

altered records
bad moral character
bribery [or corrupt influence] gambling den
mental illness
moral delinquency
pockets public funds
smooth and tricky
sold out
unsound mind
unworthy of credit

Avoid any words or expressions imputing:

2. a crime, or words falsely charging arrest, or indictment for or confession or conviction of a crime;
3. anti-Semitism or other religious, racial or ethnic intolerance;
4. connivance or association with criminals;
5. financial embarrassment (or any implication of insolvency or want of credit);
6. lying;
7. membership in an organization which may be in disrepute at a given period of time;
9. unwillingness to pay a debt.

Reviewing Obsidian Finance Group, LLC v. Cox, as part of an ongoing study, I am drafting a policy for CFC, to govern some legal issues that could arise here, both from the point of view of protecting the owner of CFC, Infusion Institute, Inc. (III) from liability, protecting CFC administration, whether volunteer or otherwise, protecting the interests of the community that CFC attempts to represent and serve, which includes the right of free expression, while at the same time protecting individuals and organizations from libel and claims of copyright violation.

Policy on libel and copyright violation

Comment here or there is welcome.


A copy alleged to be (and believed to be) the original obliterated post on LF has been added here as a comment.

While this is edgy, it is not libelous in context. It was actually a challenge to Alan Smith, which he removed by censoring it. This is long-term Smith behavior. The real problem is not Smith, but an LF Staff that does not restrain its members. I have seen many bans now. Most of them were well-earned. This one was not, but there is no clear appeal process, and no genuine explanation, so bans do not establish precedent and policy remains unclear.

Ascoli actually asked for an explanation of how his post could be considered libel. Instead of an explanation, he got a ban. This is far, far less than civil and helpful. It is knee-jerk hostile, behavior unbecoming of any site moderator or administrator, if the site clains to represent a community (as LF does) instead of merely the positions and interests of the owner. This could be remedied, but the owner is mostly absent, it is not clear that he pays attention to LF administration. This is, again, not uncommon, but this shows how internet structures can break down.


{This was originally posted under Is cold fusion a fraud?]

This section was one of a number of copies of and comments on posts on fusionefredda, one of which explicitly called “cold fusion a fraud,” and other of which was radically and blatantly pseudoskeptical. Ascoli 65’s post was not libelous, though it skirts close to an edge, but he  apparently did not want his user name associated with such blatant claims of fraud. He requested that I move that section here, which I have now done. I will leave behind a note. I hope this is satisfactory to him.

Ascoli65 wrote:

[a civil post in which he discusses various issues. I’d reply there except for it being much easier for me to write here, with formatting, etc. So his post:]

@ Abd UlRahman Lomax,
I’m still unable to post on the CFC site (I tried just now), so I reply here to your comments, and, if you don’t mind, I’d invite you to reply here as well.

Thanks. I intend to post a link to this there. I may not continue to monitor that blog. As to the posting problem, something about the user email or identity triggers the spam filter. I have put Ascoli65’s email address on the whitelist here, so, in theory, he could post here by providing that address, and I have confirmed the address (because he kindly responded to my email).

In your comment on CFC dated September 11, 2017 at 2:23 pm (*), you wrote:

– I could not find a source for the pump data and the pump being called “peristaltic.” I’m sure it’s out there, but wasn’t linked by Ascoli65.

And now Ascoli65 confirms that:

The source are the Lewan’s reports of the two tests held on April 19 and 28, 2011. These reports were published on the NyTeknik site, but they are no more accessible. Anyway a copy of the first one is still available on NewEnergyTimes (1).

To give this in-line for convenience: here.

It ends with the list of “Instruments”, where the first one is called “Peristaltic pump”. I don’t know if this definition is correct. Whatever it was, I agree with you, it was a metering pump, a dosimetric pump, an instrument devoted to deliver a calibrated flux of water.

There is a lot in that document. Yes, at the end:

Peristaltic pump NSF
Model # CEP183-362N3
Serial # 060550065
Max output 12.0 liters/h
Max press 1.50 bar

First of all, the pump identification is almost certainly incorrect. The only returns, Googling the Model number, are E-cat or similar discussions taking that number, likely, from the paper cited. One comment cited a manufacturer page. Dead link. I looked at the manufacturer web site. Found no clue, so far.

Years ago, I designed equipment to use a peristaltic pump. It is a particular type of metering or dosing pump, see the Wikipedia article.

Dosimetric pumps, most (all?) types are pressure sensitive. That is, flow will vary with back-pressure (or forward pressure). “Calibration” of these pumps is valid at the calibration pressure (and I would think calibration would be necessary across a range of pumping rates). One-point calibration is only valid if the pump operation is that the same pressure. Which does open up possible artifacts.

The Levi paper appears naive to me, unaware of possible problems, so they were not checked.

Levi claims to have measured a flow of 4.12 kg/hour. He was actually weighing the water, in two sessions, a total of about 8 or 9 kilograms each. This should be accurate, if, as it appears, he was pumping water from a weighed reservoir. The rate is not a problem, being well under the specified flow of 12 l/hr, i.e., about 12 kg/hr, at 1.5 bar.

Is that a maximum flow? A lot of hot air has been issued on this. It is a minimum maximum. That is the manufacturer is, with the specification, is guaranteed that the maximum actual flow at maximum flow setting, will be a minimum of 12 l/hr. Jed Rothwell makes the point that if the pump would pump a *lot* more than that, the manufacturer would increase the claimed number, because they could sell more pumps. Perhaps.

In the cited paper, the problem of “maximum pump flow” does not exist.

– There were many tests and differing conditions and possibly different pumps.

Yes. This is a common problem in review of various claims. There may be many experiments and demonstrations, with differing conditions. It’s easy to get them confused and to think that what is true for one is necessarily true for another. Indeed, Rossi might sometimes be hiding behind that.

In 2011, there have been 10 tests at lab scale whose info appeared on internet (2). In most of them a pump was used to feed the various Ecat devices, and this pump, from the January 14 up to the October 6 tests was the same yellow dosimetric pump, featuring a nominal max output of 12 L/h.

– The measured flux was of 168 +/- 2 g in 45 +/- 0.1 s.
While it is difficult to control a water flow with a precision of 0.1 second, this would be 13.4 liters per hour. That doesn’t seem impossible for a pump rated at 12 liters per hour.

You are talking about the wrong test.

Nope. Not “wrong.” Different from what you intended, and, indeed, I have no clear idea what test you were talking about. Bottom line, Ascoli65, you are not writing clearly and carefully. Some people, believing that it’s all very simple — and very bogus — don’t take care to be clear and complete. It’s work! If we want to assist the full community in coming to choices based on evidence, we need to be clear, or, too often, we are just adding confusion.

The normal blog format and practices encourages terminal sloppiness. What does it matter if an error is buried in thousands of posts that are all over the map? Nobody is going to study these anyway! You’d have to be crazy!

The datum you cited refers to the first test [Test 1] held on December 16, 2010, whose results was reported in the same calorimetric report (3) issued on January 2011, along with those of the January 14 demo [Test 2]. In the December test, whose setup is shown in Fig.1 of that report, no pump was used. The inlet hose was directly connected to the water tap, which was presumably used to regulate the flux. Conversely, the yellow dosimetric pump has been used only starting from the public demo held on January 14, 2011.

So the problem, the inconsistency is where? You aren’t saying, Ascoli65!

– Ascoli’s real point: this early report demonstrates Levi error, which, combined with a lack of later follow-up and correction, indicates that his reports are not trustworthy. With Lugano, we saw different errors, but the same intransigence and stonewalling. I could not find verification of the pump used. He doesn’t provide a source for it, but then makes an argument that depends on the information.

I did provide all the links to the many documents available on internet which clearly demonstrate the many errors (at least three errors only for the January 14 demo: pump’s flow rate, missing steam probe, and doubled test duration) present in the January 2011 report.

Ascoli, all this is next to useless unless I spend a lot of time trying to figure out what you mean. I’ll do that to a degree, but if you are not convincing people, the first place to look is not in them, but in your own expression. When I submitted my paper to Current Science for that special issue on LENR in 2015, the reviewer initial comments were basically, “horrible paper.” Instead of getting mad, I took responsibility — which is what I’m trained to do, this wasn’t my “natural good nature.” I can be pretty crabby naturally! So I rewrote my paper, rather extensively, making sure that his objections were addressed. He turned around completely.

That’s how to write, Ascoli65. You can make real contributions if you back up and learn to write effectively and clearly. At the same time, what it takes to be careful and thorough will educate you far more deeply. You might find some of your opinions changing, or even beliefs. That will be entirely up to you!

The problem is that I can’t see how these errors can be interpreted as mistakes.

  1. You have not detailed the errors for me to review.
  2. There are many errors. By focusing on many, you become stuck in an overview (“these errors”). Rossi has long inspired scientists to make stupid blunders (stupid in hindsight). I’ve speculated that he is really good at this. Rossi’s psychology is not necessarily simple, but it is obvious that his presence inspires some people to trust him. That could be the skill of a con artist (they can be amazing in this way, with people continuing to trust they were told long after it became obviously false. And this happens with very smart people, not stupid people. Konnikova, in The Confidence Game, points out that “gullible people” are generally happier. That is, a con artist takes advantage of a very functional human behavior: trust. People who cannot trust are seriously disabled.
  3. Rossi may also be insane, that is, he might actually believe the deceptions he pushes. He might be fooling himself.
  4. Until you can understand these possibilities, as generalities, you won’t understand the specifics, and until we understand each specific example, generalization from the specific to the general can be drastically off and heavily influenced by expectations and knee-jerk reactions.
  5. If you need someone else to invent an explanation, I might be able, but that will not establish what *actually happened.* All I have claimed is that, so far, there is no evidence I have seen sufficient to justify making a public claim of data falsification for any of the scientists involved. CimPy is libelling an entire field, and no wonder he is hiding behind anonymity

(Libelling a field is not actionable until and unless it becomes personal. The courts will dismiss it as bloviation, of no substance. If I were to say, “all liberals are pedophiles,” I would simply be an idiot, I could not be sued for it.)

I did ask many people to suggest me possible explanations, but I didn’t get any answer on the merit, that is nobody suggested a possible chain of events which could explain why, for example, it was erroneously reported a flow rate much higher than the max output of the pump.

Here, we are engaged in a discussion of this matter, and you have not clearly made your case. You keep repeating certain conclusions without providing a clear and connected factual basis.

– He cites a flow figure of 17.5 l/hr. That’s from a Macy report of an “exclusive interview with Levi. Yes, that would be oddly high if it is the 12 l/h pump involved. But that figure is different from Levi’s paper covering those tests.”

The flow rate announced in the Macy’s document (“146 g in 30 seconds” = 17.5 L/h) was the same reported a week later in the final calorimetric report (3) of the demo held on January 14 [Test 2], ie “146.4g +/- 0.1 per 30 +/- 0.5 s”, equivalent to 17.6 L/h. In the meanwhile this figure has been reviewed by many people, in Italy and in the US.

That figure is not so far above the rated flow that it’s impossible. It merely raises doubt. As well, this could be a single error that propagated. I don’t see evidence cited as to what pump was used in that specific demonstration.

As well, what you are doing is focusing on, relatively speaking, a fly, when there is an elephant in that living room, the use of a humidity meter to check steam quality, plus a complete absence of examination as to overflow water, which could make the calorimetry almost completely meaningless. Lack of consideration of alternative hypotheses afflicted all of the apparently successful Rossi demonstrations I know. In the early flow calorimetry, verification of complete evaporation was missing, it was based on some incorrect ideas. In the Lugano test, assumptions about measuring temperature with an IR camera badly afflicted the claimed results, and a calibration at full power — one of the most obvious verification measures, was missing, for reasons stated by the authors of the report, but almost certainly based on Rossi Bullshit, stated by them as if factual and sensible.

None of this, though, shows actual data falsification, merely naivete and error and, later, stonewalling, avoiding the obvious. Be careful! Details matter!

Bottom line, that you cannot understand something shows much more about you than about reality. It’s a failure of imagination, because a free human mind can always find “explanations” for anything. It’s what we do. For better and for worse. The task for adults is to sift through this and come up with sufficient analysis to create basis for action.

Should there be more investment in cold fusion research? How about more investment in Rossi? Industrial Heat? What action can members of the public take or encourage? We need facts, not more knee-jerk reactive analysis.

– I’d trust the paper over the interview, even if the interview was by email (where some will be incautious and errors abound).

As shown above, interview and calorimetric paper reported the same flow rate value (ie 17.6 L/h), whereas the max output of the pump was 12 L/h, that is the same value (12 L/h) mentioned by Levi during his speech before the test (4). The main problem is that, in the Macy’s interview, he also said: “After this calibration period I have checked that the pump was not touched and when we brought it here for the experiment it was giving the same quantity of water during all the experiment.” How do you explain this statement? Was this also an incautious declaration?

I get no impression from Levi of care and caution. The statement, however, does not seem odd to me, yet. That was not a report of an actual measurement, “the same quantity” is a coarse judgment, not a number, the result of an actual measurement. I find it difficult to parse — to understand — the statement you report. The language is confused, unclear. Normally, it is possible to clear these things up, by asking the scientist questions. That totally broke down.

So my own conclusion is that I don’t trust anything Levi says. He is emotionally involved and reactive, read his “unsworn declaration” in Rossi v. Darden, and also read the private investigator’s declaration.

But I have not seen any actual lies, just gross misinterpretations.

BTW, how can you say that the interview was by email?

I didn’t. So that’s an easy question to answer. Read it again.

(*) http://coldfusioncommunity.net/low-down-on-lie-bull/#comment-5420
(1) http://newenergytimes.com/v2/sr/RossiECat/docs/2011Lewan19AprilData.pdf
(2) http://i.imgur.com/rB93G1X.jpg
(3) http://lenr-canr.org/acrobat/LeviGreportonhe.pdf
(4) http://www.youtube.com/watch?v=Jr0ysNSN9Ng (at 9:46)

Thanks for giving the video time location. Many writers neglect doing that.

Watching that video, I’m impressed by how Levi became an advocate, far from a neutral observer and analyst. He is explaining the demonstration, as if he was working for Rossi. He leaps way ahead, instead of focusing on the critical issue, the heat level, he wants to exclude a chemical source. If we know the actual heat level and various other statistics, then “non-chemical” would fall out rather simply. It’s like the Lugano report, substantial energy devoted to a Rankin diagram, which is polemic and overheated analysis, not fact, while the most obvious facts — how bright was that thing glowing at, allegedly, 1400 C.? — are ignored. And later, when questions are asked, stonewalled.

But how this could happen, how scientists could stonewall, is not such a difficult question. They are human: embarrassed, defensive, or, as well, they might consider themselves bound by non-disclosure agreements, none of which would be at all surprising.

There is some of what Taubes called Bad Science there. So what else is new? What’s the reality? We will not find it by focusing on the errors of so-and-so. There is plenty of work which is not so afflicted, and there is more work to be done. That’s where we can find the future.

Even  if the future is that someone finally identifies the artifact or collection of artifacts that led me to think that deuterium is being converted to helium, in some “cold fusion” experiments, and demonstrates it with controlled experiment (as happened with N-rays and polywater) I’d break out the champagne (hah! just an expression, I’m a Muslim and don’t drink.). I completely trust reality, and my stand is that reality is better than anything I can imagine.

More from Ascoli65

Ascoli65 persists with beating a dead horse, long after reasonable utility. Well, maybe this will have some value. I’m skeptical, but I do lots of things just in case.  He wrote on fusionefredda: (15 settembre 2017 alle 12:12 am)

@ Abd UlRahman Lomax,
you replied to an above comment of mine (*) in your last post titled “Is cold fusion a fraud?” (**). As you know, I didn’t like very much to have been addressed in a post which deals with possible “fraud”, because, as I always said in all and every occasion, I’m not interested in this specific aspect. I would have preferred to read your answer in your previous post on CFC, where the pump issue was treated and a replication of my comment was still present (***).

This was corrected yesterday, per his email request. I’ll say that he might be judged by the company he keeps, it happens in real life.

(*) https://fusionefredda.wordpress.com/2017/05/26/df/#comment-61662
(**) http://coldfusioncommunity.net/is-cold-fusion-a-fraud/
(***) http://coldfusioncommunity.net/low-down-on-lie-bull/#comment-5426

Anyway, being still unable to post on your blog, I post here my answer to your reply.

He could email me, as one possibility. As before, I checked the spam filter. He attempted to post again on 14 September. As before it failed WP-SpamShield code ‘UA1004.’ I have been unable to find the significance of that code, and I have no other reports of failure that did not have a clear cause (the only other failure was a post with four links. His test post had no links. His email address is on the whitelist. The two attempts showed IP addresses from different service providers.

(I think WP-Spamshield does not post the codes because they don’t want spammers to know exactly what tests they are using. Combining the failure with the use of two different service providers makes me suspect some attempt to conceal identity, which I don’t mind in this case, but … there can be consequences. I don’t know that this is the cause.)

Ascoli65 is not providing me with precise information about what is happening. He reported a message that is not what WP-SpamShield allegedly displays to a user whose post is being blocked. There is no way I can test his access. The problem is not yet clear enough for me to file a support request, which I’m reluctant to do for free software (I have not paid for support). Back to the issues under discussion:

While I have nothing to add to what I already said about the pump issue, I’d like to answer these two points of yours.

Abd wrote:

– As well, what you are doing is focusing on, relatively speaking, a fly, when there is an elephant in that living room, the use of a humidity meter to check steam quality, …

I already pointed out many times, even to you (1), the issue of the presumed dry condition of the coolant at the outlet.

That is only one aspect of the issue. The aspect I mention is the use of an explicitly named meter, as reported by multiple sources, that can’t do what is claimed. It is an on-the-face error. However, the real situation is even worse, because even if the meter could measure steam quality, it would be possible to have high quality steam and water outflow at the same time. It’s possible accidentally. If we add the possibility of fraud, it could be even more possible (i.e., if there is a separate water pipe inside the steam pipe). When a technology that could be worth a trillion dollars if real, and with testing that did, in fact, attract investment in the many millions of dollars, fraud must be considered as a possibility, not on the part of scientists, necessarily, but on the part of the one who controls the tests. The magician, as it were.


is a post where Ascoli65 begins by quoting me. “Ascoli65 is a troll.” The good news is that he did link to my post, so what I was actually writing about was visible if anyone checks. I don’t call people “trolls” without, at least, some evidence, and merely being wrong or even idiotic does not make someone a troll. It is trolling when someone posts something, without necessity, that one would know, if at all careful, would be offensive, and he had done that — not to me, but another user.

The foundation of Ascoli’s claim is summarized in this faux fact:

– NO Air Quality meter has been ever used to measure the quality steam during the January 14, 2011, demo!

That is not a fact, it is an inference Ascoli65 made, long ago, from the absence of evidence, not evidence. That is, no photo of the necessary probe, as I recall. Photo showing some other probe. A claim that it would be impossible to change probes (which neglects that Rossi claims low pressure — a problem in itself, but a separate one). Given the testimony we have, from Levi and from Kullander and Essen, it is highly likely that an Air Quality probe was used, at least at some point.

Given the sloppiness of other reports, such as the Lugano report, it is possible that Rossi or Levi or someone said that such a probe had been used, and that it was not actually used at the specific time in question. Again, that would not be lying, exactly, it would be terminal sloppiness, which we know happened in Lugano (which also involved Essen), so I can’t say it’s impossible.

But it is most likely, in my opinion, that a probe was used. It’s simple and actually changes nothing, and it is far easier to establish that a humidity meter cannot do what was claimed than it is to claim as if a proven fact that there was no meter, a claim made by someone who was not a witness and who appears to be relying on shaky and indirect evidence.

Ascoli65 is operating on a well-known principle: I was right, and others are wrong. And he is stuck on it, after many years, even while it has become totally useless and probably impossible to resolve. It is impossible to prove a negative, another well-known principle. Did anyone photograph the humidity meter in use? Maybe. Would that satisfy Ascoli65? Maybe.

But I call this a mouse compared to an elephant. The mouse may squeak, but the elephant will break furniture. Reading over that Levi report, it reeks of unexamined and unchecked assumptions, with an effect of promoting a commercial interest and with displayed indifference to error, as to what we have seen in what came after.

I showed you that the real elephant in the living room is that the instrument (the humidity meter) mentioned in the Levi’s report doesn’t appear in anyone of the many pictures available on internet, and taken during the January 14 demo, even in the middle of the boiling phase (2). But I also learned that you are not willing to recognize this real elephant.

Something not showing in photos is not evidence that it was not used, unless those photos were continuous and clearly documented as such. It can create suspicion only, maybe we think it “should have” shown. Reality often, however, doesn’t match what we expect. This is very ordinary, so why is it not obvious to Ascoli65? I think there is an obvious answer: He committed himself to this claim years ago, and is unwilling to let it go. He thinks “It’s true, dammit!” But so what? So what if it is true? I pointed out above how it could be true and not indicate any fraudulent intent, only sloppiness.

If the Ascoli claim is false, which is possible, easily, the test is still badly defective. The humidity meter was actually irrelevant, that’s what was later realized. Kullander and Essen and Levi never responded to those issues, which were not claims of fraud, but of error.

“Steam quality” was actually a red herring, distracting from the major issue, overflow water. In considering steam quality, there is an unspoken assumption, that the only unevaporated water would be suspended droplets, i.e., “wet steam.” Ordinary steam from a boiler is normally wet to some degree. When water evaporation is used for calorimetry, though, there is another problem, bumped water, which looms larger than mere wet steam. And then the Rossi design, as I understood it, basically required that there be some overflow, or he’d be risking the boiler running dry with associated runaway (assuming the thing actually works). Once that is realized, the issue becomes “how much.”

Industrial Heat recognized the problem and installed steam traps on the Doral Plant. (a bit misnamed, they trap liquid water and drain it off.) Rossi removed the steam traps. Not part of the design, he was reported as saying. Indeed.

You’d rather prefer to imagine the most incredible explanations in the attempt to negate its presence (3).


Apparently, Ascolil considers the use of a product that, were I designing that test setup, I would surely use, to allow quick insertion of probes while the device is operating. He thought such a thing was impossible. That old post show that Ascoli65 is not understanding what he is reading.

The pump issue is the second elephant in the room that you are not willing to see. There is also a third one, which crown the wonder elephant trio (4), but I doubt you will to see it as well.

Yet I have seen all these issues, and have investigated them, considering them carefully. Ascoli confuses my ability to consider alternate scenarios “not seeing” what he is claiming. Let’s say I have dealt with that for many, many years. People think that if I don’t fall over and agree with them, that I don’t “see” what they “see.” Sure. It’s possible that they have seen something that I have not seen, but … they commonly don’t show it, don’t communicate it, and are creating certainty for themselves out of fluff or imagination. People do that all the time, under some conditions. They confuse “seeing” with agreement and understanding.

I have “seen” nothing new here. If there is, anyone is free to point it out. Going over old arguments, that were not accepted, called “beating a dead horse,” is what fanatics and trolls do. I have not seen anyone of weight accept Ascoli’s claims.

I did learn one thing, looking at the links Ascoli65 gave. “cam” on LENR Forum appears to be Camillo Franchine, from an oft-repeated and idiosyncratic argument. If it matters (right now it does not), I may look further.

In science, personal reputation matters. Pseudoskepticism is not science.

Abd wrote:

– Even if the future is that someone finally identifies the artifact or collection of artifacts that led me to think that deuterium is being converted to helium …

Let me doubt this, too.

You can doubt or believe anything you choose.

Sorry, but if you are not able to recognize the three elephants present in the January 2011 demo, ie the most simple, witnessed, celebrated, and documented test occurred in the whole CF history, I really doubt that anyone will be capable of convince you of any artifact presents in any other CF test.

First of all, I recognize all the claims, and the only one I find implausible is the claim that reports of the use of a humidity meter were lies, which is what Ascoli65 has effectively insisted on, in spite of a lack of probative evidence, only a weak ground for suspicion.

I’ll agree that it’s unlikely that someone will convince me of artifact with regard to the best work on heat/helium, but I have identified many possible artifacts in other CF work. Sometimes they may have have been real. I.e., just because an artifact is possible does not show that it actually happened. That takes much more work, work that often was never done.

And it doesn’t matter if I’m convinced or not. What matter is what appears to the editors of mainstream and other journals, what matters is what is actually tested experimentally and reported, what matters is what those who fund research think. They will trust me or not, but what I do, properly, is to present verifiable evidence, not mere claims.

Now that I look back, seeing how much time has been wasted discussing this, I’ll be a little more explicit: I would not present claims like what Ascoli65 is making to any serious investor or in an article for a peer-reviewed journal. I would, instead, flush it down the toilet where it belongs.

(1) https://www.lenr-forum.com/forum/index.php/Thread/3374-Jed-Rothwell-on-an-Unpublished-E-Cat-Test-Report-that-%E2%80%9CLooks-Like-it-Worked%E2%80%9D/?postID=30552#post30552
(2) https://www.lenr-forum.com/forum/index.php/Thread/3374-Jed-Rothwell-on-an-Unpublished-E-Cat-Test-Report-that-%E2%80%9CLooks-Like-it-Worked%E2%80%9D/?postID=30695#post30695
(3) http://coldfusioncommunity.net/if-i-repeat-it-enough-it-will-become-true/
(4) https://www.lenr-forum.com/forum/index.php/Thread/3374-Jed-Rothwell-on-an-Unpublished-E-Cat-Test-Report-that-%E2%80%9CLooks-Like-it-Worked%E2%80%9D/?postID=25650#post25650

Even more from Ascoli65

CimPy posted another response from Ascoli65, plus the latter made some comments in Italian that reveal more of his position, which, in spite of his denials, is quite similar to that of Camillo Franchine. The theme in the English comments seems to be that certain scientists would surely have known better than what they said or wrote, therefore something highly suspicious is going on, which he isn’t going to say, and please don’t mention the “F” word, but he can’t think of any other possibility. No wonder he was banned on LENR Forum…. do that kind of thing for a while, a moderator may well eventually act, and if the moderator is unskilled, there will likely be problems with how that’s done.

This is becoming tedious. It’s all about tests and reports from six years ago, and no matter how many times I point out that that those tests and reports were riddled with errors, “reeking” of them, Ascoli persists in his idea that he’s incredibly right and nobody else has figured it out. Who cares? Yes, there is some sort of ongoing responsibility for cleaning up institutional errors, but the field of LENR is full of examples where this never happened, and that is about “both sides” of the issues. Reading accounts of the people involved, I’m struck by how intense the emotions became, and nobody thinks and acts well when upset (and being certain about the believed errors of others is a kind of upset, it clouds the mind.)

So a few snippets from Ascoli65:

Abd wrote:

– Given the sloppiness of other reports, such as the Lugano report, it is possible that Rossi or Levi or someone said that such a probe had been used, and that it was not actually used at the specific time in question. 

I’m not interest in Rossi’s says, […]

Then he is not interested in understanding how it could happen that certain scientists stated certain things as fact that they did not necessarily actually observe themselves, or the analysis was fed to them and they accepted it because it did not occur to them that it was seriously off.

A general theme of Ascoli65 is that genuine scientists could not possibly make the mistakes the “professors” made, therefore there must be darker forces at work. Genuine scientists can make mind-boggling errors. It’s human. I’ll explain more below.

I am not going to research the claims Ascoli65 makes, unless they are clearly and specifically evidenced with links. If this was about the lawsuit, Rossi v. Darden, I have extensive resources and know exactly where to look. For old Rossi reports, they are all over the place, many different documents, and not a button push away. Ascoli is giving links for some claims, but not all.

nor in those coming from any other people different from the many professors who publicly took on themselves the responsibility to measure the excess heat, that the Ecat should have produced during the public demo held on the January 14, 2011. All of them, I guess, had the competence to distinguish a thermometer from a humidity meter, and all of them knew that such last an instrument is not able to measure the steam dryness.

First of all, nobody became “responsible” for “measuring the excess heat” simply by attending a demonstration. A series of inaccurate assumptions are being made. One cannot necessarily tell the difference between a temperature probe and an humidity probe, just by looking at it from a distance.. The meter was called an “air quality meter” and it apparently had a g/m^3 display, which could seem to someone unfamiliar with steam quality — and how that meter specifically worked — as if it was measuring steam quality. When I discovered the humidity meter issue (I think it may have been independent of others who made the same discovery) there were people arguing with me using the same argument Ascoli65 uses, that professors could not possibly make such a dumb mistake. In fact, Essen acknowledges his ignorance, in a Krivit interview, and it is utterly unsurprising. Any physicist would understand the physics involved, but not be familiar with the specific issues that arise with steam and steam calorimetry. It’s simply not difficult to understand how they made the mistakes.

What is more difficult to understand is why they then stonewalled all questions. Krivit did get some answers at first, then they clammed up. Krivit is a yellow journalist, always looking for scandal, and almost all CMNS scientists have stopped talking to Krivit; however the “independent professors” stonewalled the whole world. They talk to Mats Lewan, perhaps. Why? Mats does not ask difficult questions and does not follow up. Krivit quotes Essen: (my emphasis)

On July 15, 2011, New Energy Times telephoned Essén.

Krivit: What do you know about the calibration of the amount of steam coming out of Rossi’s device?
Essén: The steam amount was not measured. It was taken for granted that it all became steam.
Krivit: In either your experience or your efforts to inspect perpetual-motion claims, has anybody tried to claim anything on the basis of steam before?
Essén: No, I can’t recall that. I’m new at steam, unfortunately.
Krivit: Do you have any training in steam quality or steam enthalpy?
Essén: Just general thermodynamics.
Krivit: For example, like knowing the 1,600 times expansion rate?
Essén: I’d come across that before. I was aware of that.
[Note: Essén wrote nothing about the steam expansion rate in his and Kullander’s April 3, 2011, trip report.]
Krivit: When you pulled the hose out of the wall and saw the steam, did you think about the expansion rate?
Essén: No, I must admit I was thinking that I must check that the water is not draining out. I had this vague feeling that the water inlet flow wasn’t that fast, that the steam could be consistent with it, especially after some condensation in the hose. But we should have looked more into that, obviously, but there was not enough time. When we came, the setup was already there. To make any further studies, it was not possible.

“It was not possible” is a classic excuse. The problem was not that it was impossible to do a better job, but that Essen was inexperienced. Scientists are specialized, and often, operating out of their specialization, they are clueless. The problem was much larger than the humidity meter issue, which would only make a relatively minor difference in the heat measurement. The problem was twofold: there was not nearly enough steam for the claimed evaporation rate, and there was no check for overflow water. At 7 liters per hour, the hose could readily be pulled and checked and it might appear that there was no water flowing. Rossi, for Krivit, pulled the hose. We saw him walk the hose back to the drain, a maneuver clearly designed to drain any water from the hose. There would then be a few minutes in which to display the hose before putting it back.

But the lack of that high steam flow rate was utterly obvious. An electric steam kettle would show far more steam, with far less power than was being claimed to have been generated (about a tenth).

This is similar to the Lugano test: if the device had actually been running at 1400 C external temperature, it would have been blindingly white-hot. Instead, it was dull red. Yet the “scientists” trusted the IR camera and the setting of that camera, probably by Levi. Levi continued to argue that he had done it correctly, when many who have studied the issue know that it was a gross error, and the direct eyewitnessing should have been enough, but … it wasn’t. People can be fooled, sometimes, in ways that later seem impossible. Couldn’t they see?

Consider the Doral test, it’s much the same. Rossi was claiming that the Plant was producing a megawatt. Okay, where was that power going? The problem was out there for about a year, because a megawatt should have killed everyone in the Plant, unless there was a major heat exchanger taking the heat outside. Rossi eventually claimed that, indeed, he had built a heat exhanger, but it would have been noisy and the piping would have been very visible. Nobody reported having seen anything, and the warehouse was comfortable, far from what a megawatt would have done (and there still would have been a lot of heat in the building, unless Rossi could somehow convey the heat with very high efficiency to that upstairs room. Boiler rooms get very hot!)

Any observer who saw that demonstration and who had some idea of what a megawatt means, one would think, would be suspicious. We don’t know the reactions of those who visited during the “test.” Rossi’s original explanations, when asked about the heat dissipation, were completely inadequate, and that was clear. Even his own expert acknowledge that it would have been fatal without the heat exchanger. But when he was first asked, he mentioned no heat exchanger. He claimed the heat was “used” in the secret endothermic process. Then he claimed that it went out the back doors and through a vent in the roof. He mentioned no heat exchanger. Rossi lies. But many people who, we might think, should know better, have believed the lies.

(I often opine that Rossi is not necessarily “lying” in his own world. Rather, he’s insane. If not insane, he would know that he didn’t have a heat exchanger, just an idea for one! My guess, though, is that Rossi does know about the heat exchanger, that he didn’t actually make one, and, instead, he justifies the lies to himself (and some of his followers also invent justifications.)

One more item I came across. This was from Essen to Krivit.

On March 8, 2012, New Energy Times asked Essén for an update: “Considering all that has and has not transpired since [last year] and considering your failure to look for 11,200 liters of steam exiting from the Energy Catalyzer when you were there, is there a revised comment you would like to make on this matter?”

Essén wrote back the next day.

“Considering all the tests (apart from Kullander-Essén) I am aware of, at least two other, rather different, independent tests that give consistent results, either not involving steam or measuring it quantitatively, and other information that I have had since I first came across the Rossi E-Cat, I find it more interesting than ever.

“I am not aware that there have been any measurements of the amount of steam that contradict Rossi’s basic claims. Visual inspection cannot determine amount of steam since only condensed steam is visible.”

This is face-palm stupid. It is not terribly uncommon in people but less common in scientists that when it begins to appear that they made some mistake, they will scramble to invent possibilities that could make them right in the end. So … the Kullander and Essen test was not an “independent test,” and it was clear in Krivit’s earlier interview that Essen claimed the reason he had not made certain checks because it had all been “set up” and they were just observers. In fact, Essen could have noticed certain things and could have checked others, but didn’t, because he really wasn’t familiar with steam. However, perhaps that was harmless, because perhaps the E-Cat really works, and after all, others have confirmed it. However, there is only one substantial body of actually independent tests, those done by Industrial Heat, which was highly motivated to confirm, and, in the end, failed … or we could say, correctly showed that the devices were not working. All other tests were dominated by Rossi, just as was the Kullander and Essen observation.

It’s been noticed that Rossi kept changing the test methods. So with the Kullander and Essen test, there was a possible artifact from overflow water. Instead of setting up the same testing to then confirm that there was no overflow water, the system and test procedures were changed. Magicians do this all the time, they keep changing the tricks, so that one cannot confirm suspicions — or they use an earlier suspicion against the observer, who thinks he knows what is being done, but then the magician turns the hat over, or whatever. It’s different this time, and there are an unlimited number of ways to create false appearances.

Essen is desperately holding on to the idea that the E-Cat he witnessed actually worked. Then he falls into total preposterousness.

Yes. Of course, dry steam is invisible. Yet when dry steam hits room air, it immediately condenses and becomes visible. It does not appear that Essen ever did become familiar with steam. Dry steam is not nailed to the boiling point; if the measurements showed a temperature that was very close to boiling (even if it appears slightly above), the steam is now not at a controlled temperature. Wet steam must be at exactly the boiling point for the pressure (and steam exiting through a hose at some significant rate will be at an elevated pressure, though it might not be much. Just enough to nudge the temperature up slightly.) Dry steam would be very unlikely to be stable at that temperature. Making dry steam involves “superheating” it. So the temperature indications are that the steam, if it was steam, would be wet. And it would immediately condense when it hits the air,

One can readily estimate steam volume by observing the plume from a hose with the same diameter — by comparison. And that has been done. There wasn’t the level of steam flow that was claimed, not even close, and Essen could have confirmed this himself, by looking at how that much steam would appear. He didn’t because he is not looking for the error, he just wants to be right.

For a scientist, sad. Tragic, actually. Unless he wakes up and cleans this up. I can hope.

(Dry steam would also condense quickly, just not as quickly. If we look at the spout of a steam kettle, vigorously boiling, we can see the plume of steam coming out of the spout. It will be invisible as it comes out, for a short distance. If a steam generator is designed to superheat the steam (which isn’t easy, and it takes after-heating, generally, missing from the E-Cats, and this was an issue raised in Rossi v. Darden), that distance would increase, because the steam must cool before condensing. Live steam (the invisible stuff) is very dangerous. Never pass your hand through live steam, major burns would be instantaneous; you can do it with the visible fog kind of steam (though it’s still hot, it is not carrying nearly as much energy).


Krivit did very thoroughly cover the issues on this.

Fogbow and community discussions

Because it was linked from LENR Forum, I wrote some posts on Fogbow recently, and the experience reminds me of why I avoid such fora. This is not a particular problem of Fogbow, it is generic to open fora without disciplined moderation or clear and efficient decision-making structure.

I wrote this before noticing some comments that may shift my view. So what will be read here, first, is how this all occurred to me, is not some sort of final conclusion or definite and overall judgment.

The topic there is Rossi v Darden : Cold Fusion Trial

The motto of Fogbow is: “Falsehoods unchallenged only fester and grow.”

However, what is “challenged”? If someone writes, “The moon is made of green cheese,” is the falsehood challenged by someone writing “You are an idiot”? That comment would be a violation of Fogbox rules, as an insult. However, what if the person had asked “why do I think that the Moon is made of green cheese,” would “Because you are an idiot” be an insult?Yeah, probably. But if you say, “That’s an idiotic idea, like the other ideas you have advocated,” is that an insult? Apparently not, though the actual effect is almost identical. The direct insult to the person, however, is easily recognized, and sanctioned, it’s blatant, whereas insult to idea or an assumed general stand or an entire class of people is allowed, even if clearly and deliberately provocative.

Trolls, defined by the goal of enraging or outraging others, then become skilled at making statements that will provoke as insults, but not be immediately recognizable as such. Such a person may appear to those who don’t know the circumstances as merely opinionated or even correct. They may become skilled at making plausible allegations. Yet the goal is to enrage. That goal will not necessarily be visible in an immediate interaction, it could show as a pattern of behavior over time.

There is no clear dividing line between pseudoskeptics and “debunkers,” and trolls. The effect can be the same. Discussion sites like Fogbow and tend to become infested with trolls and pseudoskeptics. Sometimes “believers” can also troll, as to provoking the others.

Bottom line, understanding of truth is not spread by merely “challenging” falsehoods. That idea is common, and it fails. Falsehoods can be asserted with brief statements that convey complex ideas, to actually answer them better than a mere challenge (“Lies!”) takes lots of words, or sometimes it can be done relatively briefly with references. On discussion sites, though, the routine practice becomes sound bites, considered entertaining, and some people who are not trolls themselves enjoy the fray.

I concluded quite a while ago that there was mostly insufficient benefit in “confronting someone who is wrong on the internet.” It’s endless, and discussions where that is the norm commonly go nowhere, failing to create genuine corrective analysis and structure, efficiently accessible.

The topic of the Fogbow discussion that I posted in was the lawsuit, Rossi v. Darden, and LENR in general. LENR in general, when brought up anew in a forum, generates a host of very predictable comments, too often stated confidently by users with one of two positions: “this is the truth, and is how mainstream science views this topic,” or “here is my original idea, aren’t I brilliant and aren’t they stupid for not thinking of this.” The discussion format encourages this, and useful content is not built.

I am considered by many to be highly informed on LENR, familiar with the arguments. However, LENR is a fringe topic, or, possibly more reasonably, an emerging science, still considered fringe by many. I hope to be able to show, within the next year, some far stronger experimental evidence on something that was already strong, as, I hope, was shown in my Current Science paper (2015). However, that’s not what I want to focus on now. Last year, I began writing on Rossi v. Darden (mostly on LENR Forum). I recognized that there was no archive making the case documents readily available. (“Pacermonitor” was often represented as a place to get “the docket”, which was quite misleading. Various documents had been downloaded and were hosted in many different places, erratically. So I created an archive, originally in the filespace for the newvortex mailing list. Then I moved it to this blog, and it is recognized by many as the best such resource available. (There is also Eric Walker’s googledrive, but it is not indexed and organized for rapid access, and there are files on thenewfire, also not well-organized (but some of those documents are OCR’d which makes for easier quotation.)

But that is not all I did. I also studied the pleadings and created analytical pages where, say, all the cited documents were linked and page-referenced for fast access; to do this, with the Motions to Dismiss that I studied, required reading or at least literally seeing all those documents, and often rereading them. As a result of this, it is possible that I know more about this case than anyone else on the planet (possibly even including the lawyers and parties). I mentioned this on Fogbow. As could be expected, on a site like Fogbow, this attracted derision. The possibility that it might be true, or true in some ways, was totally disregarded.

There was an apparent lawyer commenting there. His comments were generally correct, in my view, about law, but were not well-informed about the particulars of the case. And that attracted support, and his comments were considered to be “correcting” me. I will look at that one narrow issue, but my decision to restrict my posting to Fogbow is much more about an issue of the allocation of time than about any specific offensive comment there. But here was that commentary (and Startibartfast may be one of the better writers there):

[better than I thought, see below for another post by Starti)

Startibartfast wrote:

[blue, first-level indent]

Mikedunford wrote:

I don’t – despite Slarti’s attempt to make my head swell – consider myself to be one of the “real lawyers.”

Sorry to embarrass you, but what you wrote essentially proves everything I said about you, so you kind of torpedoed your own modesty. In any case you once again demonstrated that you have some small understanding of what you are talking about.

I’m licensed, but I’m not a practitioner and have no immediate plans of becoming one. What I am is an early-career legal scholar

Even a baby legal scholar is still a legal scholar and I thought Abd needed to understand that. Thanks for showing him! :thumbs:

Um… what was shown to me? I responded to Mikedunford, assuming that he had knowledge of law, but not necessarily the particulars of this case, which is unlikely in anyone without extensive study, no matter how much they know about law. Yet we are seeing confident expression of opinion without that study. I will return to this.

(who really should be working on a 20K-word dissertation instead of procrastinating here),

And Abd really should be getting ready to travel to Miami to cover the case (and for reasons that are fairly obvious from what has routinely happened, “cover the case” seems to have been interpreted in some very weird ways, such as “testify as a witness” or “have some interest” — i.e., as an involved party.)

What is the value of writing on Fogbow? It is not building content that can be efficiently accessed. Right now the RvD discussion there is 120 comments, the RvD Developments discussion on LENR Forum is at over 8900 comments. The same claims are made over and over. Sometimes those who might correct them burn out, and stop. It cannot be assumed that the latest comments are the most cogent, it can merely indicate that the “survivor” was the most fanatic, the most stubborn. It’s a structural problem. Fogbow software is even worse than LENR Forum software. Quotations do not refer back to the original comment, so context cannot be checked, tracking the flow of a discussion becomes difficult. There is no method of creating a content hierarchy, of tagging individual posts with meaningful categories. (But threads can be categorized, but only so vaguely as to be nearly useless.) The flaws of Fogbow include most of the flaws of LENR Forum, but cutting a bit deeper.

Right there with you. For me it’s writing my father’s eulogy and preparing a brief for a meeting next week.

Sorry about the father.

with relevant degrees from a couple of places, a solid foundation in US law, and (hopefully) a better-than-the-average-lawyer understanding of global intellectual property law.

Do you have any idea how hot you look right now? :lovestruck:

In other words, MikeDunford may be an ordinary lawyer with some specialization (“better than average”) in intellectual property law. I have no difficulty accepting that. The only problem here is that IP law is not at all the core of the case.

Law360 got it wrong. This is not a licensing dispute, even though it involves a licence. There were some licensing claims in the original Complaint, they were dismissed, and what remains relating to them is very weak and mostly irrelevant.

I would suggest that if Rossi and HI et al. had a lawyer or two who understood global IP law when they were writing their deal they might not have needed to spend a combined $15 million on lawyers for a contract dispute.

Just sayin’.

This obviously assumes that the problem was an ignorance of “global IP law,” and that Andrea Rossi would be interested in and follow legal advice when writing that Agreement; on the other side, it assumes that it would have been practical for IH to modify what Rossi was suggesting according to their own legal advice. It is highly likely that IH had significant access to legal expertise. They were faced with a problem that is not even on the radar screen of this “just sayin'” writer. They knew full well that the investment was risky. IH accomplished what they set out to do, as one possible result. I’m not going to explain what I’ve seen as their strategy in detail, beyond mentioning that Dewey Weaver, one of their investors and the only one discussing the case in public, has affirmed it, and it matches what is in the IH depositions.

That Rossi would sue as he did was not something easily anticipated. He had no history of initiating legal action. He was paranoid. A choice apparently had to be made: allow him what he wants, or no deal, nothing discovered. The Agreement is obviously flawed six ways till Sunday, but the legal costs cannot be traced to flaws in that Agreement, since, as written, the Agreement protected IH adequately; Rossi basically ignored the Agreement and fact to sue. Putting in stronger protections, such as a provision for binding arbitration or something that would have weakened the decisive role of the ERV, would probably have led Rossi to bail. IH needed to know if Rossi had a functional secret, if his technology worked, because it would threaten any other LENR technology. So they bought it.

They found out, not as an absolute proof, but as a clear demonstration that nothing Rossi said could be trusted, that he would shamelessly cheat and lie, and that he also was able to fool scientists and others — there is a major trail of wreckage, where scientists (such as the “Swedish professors”) blackened their records with serious errors, and that is all still working out. And IH still has a hedge, the License, just in case Rossi pulls a Wabbit out of a hat.

IH really looked like they had screwed up, to me, when I started studying this case. However, as I went deeper, I came to see their plan as absolutely brilliant, even though I still do not agree with every detail of how it was executed. There is a proof: Woodford. The initial Rossi investment and followup was about $20 million. The IH goal was not profit, as such, their original interest was environmental, they are what is sometimes called “socially responsible investors.” Their goal was to support the possibility of LENR. They hope to make a profit with their investments, on average, and they commonly make risky investments in pursuit of their goals, and they are patient, willing to follow the long term. Woodford is similar, apparently, and invested $50 million in what became the parent company of IH, IH Holdings International. This was obviously set up to protect the Woodford investment from Rossi predation. Woodford also committed an additional $150 million if needed.

So Darden and Vaughn amplified their own $20 million, and that they took the risk with Rossi made the world safe for further investment, not in Rossi, but in other LENR research and technology. They are still cash ahead, even considering the legal costs, and they may be able to recover those, from two defendants: Rossi, who may own on the order of $10 million in Florida real estate, though that is probably being mortgaged, my guess, to pay his own legal bills, and Johnson, Rossi’s real estate lawyer, who supported the fraudulent representation that is quite obvious from case evidence. In addition, there are aspects of this case that call attention to possible lawyer misbehavior.

There is a pattern shown in the Rossi pleadings. He has accused Jones Day of legal misconduct, while his own lawyers may be more in line for sanctions for that, he accused Darden of perjury, whereas he has, himself, almost certainly committed perjury, demonstrable by comparing his depositions and attestations with clear evidence, his own emails, and, of course, there was the basic case filing itself, claiming fraudulent inducement, when there is no evidence of that on the IH side, and plenty on the Rossi side.

So, what did MikeDunford show me? His posts. Search for Rossi v Darden to see the seven posts (at this point)

Fri Jun 16, 2017 3:50 pm

I haven’t weighed in on the legal issues yet, and won’t unless/until I get a chance to read the papers in some detail. (Which is very unlikely to happen in the next several weeks.) I’ll also freely admit that my patent law knowledge could be getting blurred because it’s not my primary area, but it is one where I’ve done the basic-level class for multiple jurisdictions. That said…

My recollection is that the validity of a patent is generally relevant in a patent licensing dispute, because if there is no valid patent, there is nothing to license. Whether or not the invention actually does what it says on the tin is generally relevant to validity, because a patent for thing that can’t possibly do what it claims may be invalid for lack of utility.

So I do think that the science may be relevant. But this sounds like a strange arrangement of contracts, so I’d have to take a good long look to be sure.

Sounds like a smart lawyer, actually. What I would point out is that the validity of the patent has not been legally challenged. The idea that this was a patent dispute appears to be common. It isn’t. It is, indeed, a contract dispute, with a few odd claims relating to IP tossed in. IH is claiming that if Rossi knows how to make working devices, he didn’t show them, so he’d be in prior breach. The only relevance I know of patent law is application to some of the dismissed claims in the Complaint. Rossi claimed that by adding a co-inventor to a patent application, they had somehow infringed on Rossi’s patents, which, is, ah, cloud cuckoo land. I’m confident that Mike would agree.

IH is not asking for the patent to be invalidated.

Fri Jun 16, 2017 4:44 pm

Having skimmed a couple of the summary judgment motions, I feel very sorry for the judge and her law clerks. And that’s all I’m gonna have to say about that.

I responded to this with general agreement, but then some details. Mike came back with:

Sat Jun 17, 2017 3:30 am

This is complicated, but in summary, I had argued that the Judge erred in dismissing the Motions for Summary Judgment without looking at any fact and legal argument. What Mike asserted about Summary Judgment was all general truth, but Mike did not address my specific claim. He merely gave a conclusory comment, an opinion based admittedly on a shallow review. here were his notes:

1: Even if the other side has the burden at trial.
This was a note to “The burden to persuade the court that summary judgment is appropriate rests with the moving party”. That is correct, AFAIK.
2: It’s a lot harder for a plaintiff to win on summary judgment.
I think so, as well. The “Partial Motion for Summary Judgment” filed by Rossi was preposterous, not even close to what might have succeeded, in my opinion. As well, IH as counter-plaintiffs had a tough row to hoe. Most counterclaims required matters in controversy to be decided. There might have been some relatively simple ones. As a tactical matter, my impression is that Jones Day attempted way too much and so got nothing. But IANAL, and assessing the practical reality of that is beyond my pay grade.
3: I agree that the 4-page blanket denial was a bit of a slap at the lawyers; I’m not sure it was an unwarranted one. The motion I read (the Int’l Heat one) was very hard to get through and did not do a great job (IMO) of clearly setting out the basis for summary judgment.
It was not merely “hard to get through.” To actually study it required reading the SOMF, and to understand what was happening with the SOMF required reading the evidences asserted, and that was, as these documents exist, tedious. Did IH “do a great job”? No, they didn’t. That’s obvious. A great job would have won at least one issue for summary judgment. Or would have resulted in the Judge clearly rejecting the arguments and explaining why. What they got was zilch. No examination. In my training, when I get results like that, the training is to take responsibility. “I failed …” However, this wasn’t my pleading, I did not write it and wasn’t asked to review and perhaps edit it before it was filed.
Mike actually says he’s not sure. I am more sure, but have likely spent an order of magnitude more time studying those documents. This is not about familiarity with law. Mike and I appear to agree on the legal principles. Mike did not actually address my central claim, that the Judge didn’t do her job, reviewing and accepting or rejecting arguments. She just threw up her hands in … despair or disgust? It’s hard to tell. This was not the assessment of uncontested fact that I would have expected. The result: the Rossi strategy of generating massive smoke screens worked. He could make up a set of unsupported arguments and she took this as a “disputed fact.” It didn’t matter if those arguments had any relevance or evidentiary basis. I think that’s error.

The result is a complex trial expected now to take a month. Some of this might have been unavoidable. She apparently is pushing for settlement. If she had dismissed what was dismissable, based on uncontradicted evidence and arguments (and particularly on the original complaint issues, thus the standard should have been easier, this was IH as a defendant), settlement might have become more possible.

Mon Jun 19, 2017 4:45 pm

This got convoluted. I pointed out that the term “absolutely” was a “bit strong,” he wrote “not a bit strong,” but we actually agreed on the substance, and his restatement did not use “absolutely,” nor any equivalent.

As I said above, technically speaking the defendant doesn’t need to produce any evidence in opposition. It’s a good idea for the defendant to try to produce evidence, of course, but the defendant can – through argument – convince the finder of fact that the presented evidence is simply insufficient to meet the burden of persuasion.

In the most significant and clearest of the issues covered by the IH MSJ, IH was the defendant. I did not claim that all the IH MSJ issues were worthy of much attention, and Mike’s argument, apparently thinking of IH as plaintiff, focuses on plaintiff arguments, but I still am concerned about what the Judge did. This was a complex case, with two initial plaintiffs (and confusion over the identity of one of the plaintiffs), four initial defendants, and then counterclaim plaintiffs and originally about eight counterclaim defendants, reduced by one when Penon could not be found for service. The Judge wanted all elements included in a single motion, of restricted size. She also created a much earlier trial schedule than what the parties had agreed upon, and refused to allow consensual postponement of deadlines. That all raised my eyebrows. Other than not allowing the parties to have what they agreed upon, however, her prior rulings all seemed within reason.


At a point where I agree with Mike (saying “that is correct,’) he wrote:

I’m relieved to learn that my years of legal education have not been entirely in vain.

Not a good sign….

Nothing shown to me here that I did not already know. I was thinking I’d write more detail, because Mike went on to present speculations as if they were facts …. but I’m losing interest rapidly. Mike is clearly knowledgeable about law, but then made hosts of assumptions about the specific facts. He did ask me for an example of what MSJ might have been granted, but I’m not convinced the question was sincere. I’ve covered that extensively here. Someone else can answer him.

And then:

Tue Jun 20, 2017 4:32 am

tjh wrote:

So … ONE person (though not an attorney) who knows BOTH the law AND the technology? My vote’s for Abd.

Mine isn’t.

Abd’s knowledge of the law is clearly substantially weaker than Abd thinks it is.

Apparently his vote is for himself. Surprise? I am not a legal expert, I merely have more knowledge of law than many lay writers. Mike imagines he knows what I think. He did come up with a stronger statement of what he thinks are my errors.

Tue Jun 20, 2017 8:29 am

It’s tempting to respond to him, but …. no. I will lay out what I will do, but what I will not do is to engage in these bar conversations. His comment above is an insult, a comment made either as trolling or in reckless disregard of normal responses. His subsequent comment actually addressed issues, but … context matters. If anyone has questions regarding any of what I wrote or what he wrote there, ask me here. Comments are open; only the first comment from a user requires approval. There are some loose ends to tie up. First of all, thanks to tjh for the kind comment. However, we are not running for office and there is no job on offer, nobody is to be established as The Authority. I merely know more than the usual about some things, but I make mistakes and that is one reason why I generally provide sources and links. I don’t always do that, so if anyone disagrees with what I’ve written and it was not sources, please ask. If you have the question someone else might, as well.

So, tjh. I had not seen his post.

Mon Jun 19, 2017 11:21 pm

vic wrote:

Sterngard Friegen wrote: [quoting Abd, adding a highlight]

“I don’t need this forum for anything in particular, I posted here Just Because I know more about the topic (that lawsuit) than almost anyone else on the planet, and this discussion was mentioned elsewhere.”

Regarding the highlight – an ego is a terrible thing to waste.

I’m the one who created this topic, and referenced it on https://www.lenr-forum.com — which might be why Abd came here.


But I will endorse his comment “I know more about the topic (that lawsuit) than almost anyone else on the planet”.

Let me put it this way: I’ve spent a year studying the suit, and then creating the resources on coldfusioncommunity.net, I read the documents again and again. There are some people who know things that are not public, and sometimes people notice things about the documents I have missed, but … when I read the comments of those who have not studied the documents, I notice the many errors that are common, and I know how I know what I know, because I’ve been over and over those documents, reading what others write about them, and my comment was an opinion that might be fact in some ways. And the reception was chilling, overall. People mostly go away when treated that way, sane people do (women will almost always not tolerate it)

One commenter imagined I didn’t know what a troll was. I’ve been dealing with on-line community since the 1980s on the W.E.L.L. People confuse their own ignorance or differences of opinion with the ignorance of others. “Troll” is a word. What it means is up to us. We use language, or we let it use us. I prefer the former.

Rossi’s and IH’s attorneys may know more about the law …

They certainly do. Some abuse it. My knowledge will also be spotty, incomplete. I often comment from a common-law perspective, more or less equivalent in some ways to “common sense,” though common sense is not necessarily common.

but they know (and care) little or nothing about the technology. Read the depositions.

Right. Jones Day has a real blooper in one of their pleadings. This is what I know about professionals in my life: they know more in general, almost always, but they don’t know my situation as well as I do. So I use professionals without making them into gods. I’m responsible for my choices, not the professionals I might consult. They are responsible for sharing their experience and knowledge with me, but they are advisors, not governors.

(From the technology end I would love to cross-examine ALL of the “technical experts”. How to do it legally … no idea. I do know that major cases can hinge on ONE question, eg “Is there any possibility you MIGHT have seen the microcode?”)

One of the nutty things that was tossed at me was the idea that I was trying to intervene in the case, to get the Judge to read my work. Basically, people make up what fits their preconceptions, so what I wrote was read that way. In fact, what I had suggested was that a clerk might use certain documents here that had links added; the clerk would not trust the document, but would verify that the links were what they purported to be, that the copies were true, etc. That would be much faster than creating it from scratch. Maybe ten times as fast. I spent many days creating some of those documents. With such a document, hypertext, reading the MSJs would be far easier.

(I never completed those documents, they would still be useful to someone who wanted to make it easy for the Judge to review. Frankly, my opinion, attorneys should be required to present documents like that, instead of what they have been doing for way too long. It should be possible to verify a claim in a pleading as to what is in evidence, in seconds, not several minutes per claim.

Lots of people (with whom I have corresponded on forae and by email) know lots about the technology. (eg Rothwell, Storms) …
[Edit]: but little or nothing about the law.

That’s what they tell me, they are honest about it.

Abd has an excellent technical reputation in this the technical area (I met him first online on vortex, but he got thrown off for rationally defending a religious attack).

Given Fogbow, it’s ironic. The fellow was a birther and that was a major part of what I confronted. That is, in fact, where I learned about that flabber.

So … ONE person (though not an attorney) who knows BOTH the law AND the technology? My vote’s for Abd.

(He sure ain’t modest, he sure ain’t polite — he’s dinged me for posting some hignorant stuff. )

Sorry. Not about not being modest (though simply saying that I may know more than the vast majority of people on some topic is not immodest, if it’s factually based), but about any hurt feelings. I have learned what I learned by writing and, on occasion, being corrected by those knowledgeable enough to accomplish that. Some have been polite and some not, but the opportunity is there for me. I would probably learn much on Fogbow, but it ain’t gonna happen. Most of those conversations were far too boring, on matters where I discussed the stuff to death years ago.

AND I’m still not going to defend Cold Fusion / LENR here.

It doesn’t need defense, or, at least not on Fogbow, which will make zero difference in what happens with LENR. In fact, I’m strongly suggesting that people without high knowledge stop arguing about LENR, and people with high knowledge usually have something better to do.

And then Startibartfast.  Tue Jun 20, 2017 12:05 am

[I am creating links for his footnotes, and backlinks just for fun]

I find it fascinating how quickly bad blood can arise from a failure to understand each other’s position (and grumpiness too, also1). In an effort to get an interesting thread back on track and prevent someone who seems to me to be making a worthwhile contribution from getting turned off, let me see if I can help explain… or at least make things worse.

Since I was a moderator on the W.E.L.L., I have been noticing social pathologies in on-line discussion, probably related to the lack of direct visual and auditory cues, and the depersonalization related to the low bandwidth of text. It’s an issue I have worked on since then, because there are also vast possibilities from there being a clear and accessible written record of conversations. However, what I saw, then, and continue to see, is that this possibility is largely missed because it is overwhelmed by social phenomena and how people routinely form opinions. To review the record to find the original of conflicts was, in practice, almost useless, because people mostly will not read the record, and will assume that references to the record are “cherry-picked” or otherwise simply reflecting the political position of the one making the references. This is an aspect of general dysfunction in how we form our identities and beliefs. To move beyond it generally takes training, and that training is not routinely supplied or expected.

Those who might be expected to see beyond these reactive patterns often don’t. I saw a professor of linguistics argue with one of the most skilled trainers on the planet, that he was using words wrongly. If anyone should know that language is a tool, not  truth, it would be such a professor. He walked out, because he could not tolerate “wrong.”


I don’t think Abd is trying to peddle woo, I believe he is just someone who, based on his own informed opinion, believes that cold fusion is real4 and hopes that, one day, it will result in commercially viable energy production.

Thanks. To be clear, I am informed more than most, and less than a few. I am sufficiently informed to be able to participate usefully in conversations with experts, and to be able to write a review paper and see it pass an initially negative peer review and have it be published, and cited by the person I most respect of all the experts. However, I do not “believe” that cold fusion is “real.” To be sure, the word “believe” carries many possible meanings. A more neutral statement of how I think is that I have concluded through a preponderance of the evidence, pending the availability of better evidence, that at least some of the reported effects sloppily called “cold fusion” are real, not merely artifact, and that it is nuclear in nature. This view is probably consistent with the view of the majority of informed experts. Cold fusion, like some other fields, is afflicted with experts who do not know the evidence, so “informed experts” would mean those who are somehow tasked with a review and study. People like McKubre and Robert Duncan. I just noticed that a Rossi voir dire asked if jurors had seen the CBS special on Cold Fusion, where we saw Duncan investigating cold fusion.

I use the term “cold fusion” for political purposes. That is, the evidence shows that the reaction is likely the conversion of deuterium to helium. That conversion, regardless of mechanism, would routinely be called “fusion” as to effect. Steve Krivit has never understood this and argues at great length that most in the field are promoting a wrong idea, fusion. But then he means by fusion “d-d fusion,” which is easily understood as either impossible or in any case not what is happening with the Fleischmann-Pons Heat Effect and the production of gammas. Huizenga point it out long ago when he noticed the heat/helium evidence, considered this an amazing report (it was!), that it would explain a major mystery of cold fusion (the ash!), but that it would probably not be confirmed (because no gammas!). That opinion was obviously based on an assumption that if heat and helium were correlated, the reaction must be d-d fusion. That is only an assumption. There are other possible pathways.

An information cascade formed in 1989-1990, where a “scientific consensus” arose, meaning broad and common opinion among scientists, that was never based on completed or conclusive scientific study and findings. Gary Taubes wrote the best skeptical book on Cold Fusion, Bad Science. Even though he finished the book after the Miles announcement of heat/helium correlation, he never looked at it, and the reason is obvious: his simple story of bad science, a long-term theme of his, became really complicated, and he needed to finish the damn book! Later, he investigated some other information cascades and wrote compellingly about them. These cascades are still in place, but falling apart as real research is done. Taubes, indeed, founded NuSci to facilitate that research. I like Taubes, a lot, even though some of my LENR friends hate his guts. He worked his butt off. For some understanding of how information cascades work, google “Taubes Tiernan information cascade”. Here:

Diet and Fat: A Severe Case of Mistaken Consensus

How the Low-Fat, Low-Fact Cascade Just Keeps Rolling Along

Information cascades are not “bad.” They are a mechanism by which society creates more efficiency, but they can fail to recognize anything that is outside normal thinking or what is easily accessible. Overcoming them can be quite difficult. I’ve been looking recently at the history of the recognition that h. pylori infections case gastritis, ulcers, and stomach cancer. The creation of review bypasses could have saved many lives and improved the quality of many more. The cost of the rejection cascade was in the billions of dollars. My guess is that the collective cost of such phenomena is in the trillions of dollars per year. That does not mean that people should be so open-minded that their brains fall out. Rather, it only takes a few to review and spread the news, if structures are in place.

Creating those structures is my goal, long term. Cold fusion is merely one example of an information cascade where what became insanely strong rejection, if it delays the commercial application of LENR, costs about a trillion dollars per year in lost opportunity cost. Even if the probability of such applications is low, this would be worth many millions of dollars in review costs, including, of course, definitive experimentation.

In discussions of LENR, N-rays and polywater are often mentioned as prior examples of “pathological science,” tossing cold fusion in that basket. However, N-rays were shown to be artifact by a conclusive experiment. That experiment did not “prove” that N-rays were not  real, but that the evidence for them was not based on objective observation, but was a product of observer expectation and interpretations that “seeing is believing,” even if the seeing is … at the edge of clear. Polywater was shown to be artifact by an experiment that conclusively provided a prosaic (though remarkable in itself!) explanation, contamination of the water by condensed sweat from the researchers.

The core findings of LENR were never shown to be artifact, i.e., the heat. The early neutron radiation report was, indeed, artifact, retracted. That was often considered proof that the heat effect could not be real, because d-d fusion would always generate copious neutrons, but the interpretive error is obvious. As well, the conclusion that the heat was nuclear in nature was premature. Pons and Fleischmann actually had, when they initially announced, three evidences of “nuclear.” First, the level of heat was beyond chemistry, in their judgment, and chemistry was their expertise. Second, they saw evidence for neutrons. Third, they found tritium. The neutrons and the tritium, however, were far below the levels expected from d-d fusion. The neutron evidence was artifact. However, that was never shown for the heat, nor for tritium, and both of those effects were widely reported, confirmed. A few neutrons have even been shown, but those findings are not confirmed.

As such, this trial is of interest to him just like many other trial threads on the Fogbow are of interest to you and the rest of the boogle2.

Yeah. It was doubly interesting, because it is a convergence of two significant interests. It might be a good place to ask legal questions, for reasons that Starti makes clear. However, it’s also a public comment forum, with very loose administration, with all the down sides of that. I broke a rule. No administrative warning, just some blame from a troll and friends. Yes, some explained the rule I had violated. Yet from the common severe disrespect and contempt shown, the initial offense, the kind that seriously damages discussions and tends, for example, to drive away women or others not interested in bulls butting heads, and endless waste of time in discussions that never go anywhere, that rarely accomplish any measurable benefit, was tolerated, and it was repeated. I.e., the judgment of “insult” was superficial. This is a product of the limitations of narrow administration without decent structure. That is a discussion forum default because it’s easy and familiar and can be controlled by the owner. There are far more powerful options. Hybrids, essentially, and few have experience with them.

You might find cold fusion to be nonsense, but Abd doesn’t and seems willing to discuss LENR on the merits.

Yes. If you look around this blog, you will find serious discussions with serious skeptics. I don’t expect a knowledgeable skeptic to lay down and play dead. My stand is for all to express what they know. Emphasis on know. As part of the process, there is the expression of opinion, which is reactive, not exactly knowledge (though necessary in human process).

More precisely, the opinion that “cold fusion is nonsense” is obviously an unsupported judgment as apparently held. It would depend on a definition of “cold fusion,” wouldn’t it? I’ve had this argument with some atheists. Speaking at a university on Islam, a young man stood up, proud to express his opinion. “I don’t believe in God.” Great. I asked him, “in what God do you not believe?” It appeared that nobody had ever asked him that question, he was dumbfounded. I then said, “The God that you do not believe in, I don’t believe in either.” Now, I’ve had this discussion with serious atheists, who were not naive college students. Their ultimate objection: I capitalize God, and I capitalize Reality, and I define God as Reality. Period. No ideas attached, not as belief. There are some explorations and possibilities, that’s all.

The “cold fusion” that is nonsense is an idea in the mind of the pseudoskeptic, typically unquestioned, almost invisible, because it is assumed that we know what is being talked about, i.e., say, the claims of Pons and Fleischmann. However, they did not actually claim fusion. Their paper claimed an “unknown nuclear reaction.” In the title, as I recall, they had Fusion? at the end. The editors lost the question mark.

The history of cold fusion is an extensive comedy of errors, a demonstration of how very smart people can make very stupid mistakes. All of us can. In my ontology, “mistakes” are the fastest way to learn, if we pay attention and are not attached to being right.

Which is perfectly reasonable from a scientific point of view3.

Thanks. To echo Mike, I’m grateful that my fifty years of observation and study and training have not been wasted. (But I actually do thank you, I am not being sarcastic.)

Anyway, I think Abd is adding value to the discussion (and certainly a lot of knowledge about the particulars of the case) and, at the very least, isn’t doing any harm.

I doubt that whats-his-face, the user I set to ignore, will leave because of my “insult.” The insult was actually calling him a troll, as I recall, which was very obviously reasonable, i.e., if someone trolls, they are, in that interaction, a troll. No action exclusively creates identity. I was not claiming and would not claim that the only thing the fellow does is troll, that he is a “pure troll,” only that he was obviously trolling, and I drew a conclusion from that, which was personal, that I was not going to continue interaction. If he wants to communicate with me, this blog is open for comments. I have no assumption that he has nothing of value to contribute; such an assumption would violate my basic ontology and stand. Mike is merely opinionated and quick to judge, I didn’t see trolling there. Mike has actually raised an issue worth exploring, which I intend to do here, but not today, I need to get ready to travel to Miami.

In any case, I don’t think he really deserves all of the scorn you’ve leveled at him. Certainly not because he chose not to answer a hostile comment on Saturday afternoon by Sunday morning7. Just my opinion.

Indeed. That was trolling, highly offensive, provocative, and … obviously tolerated, and, my guess, much from him is tolerated, probably because he is seen as a “valuable contributor.” That is an error very common in site administration. It is possible to create and enforce civility without losing truly valuable contributors; that this is thought not possible is a result of failure to respect the capacity of users to cooperate, when that is tested. Most will cooperate with civility rules, if they are clear, and clearly and reliably enforced, but it takes some administrative work, and admins are typically overworked and definitely underpaid.

p.s. I didn’t know the story about your avatar, so, if nothing else, I’m grateful to Abd for getting you to share that.

You’re welcome. My comment about his avatar was not a claim — as he represented — that he had created the avatar to insult me, which would have been stupid and egotistical — more or less his point in making the claim. Rather it appeared to be a symbol of his interactions, not just with me, but with many. It’s not just grumpy, it is in-your-face grumpy. It is or has become his identity.


Please correct me if any of my suppositions above are untrue. You seem very forthright and write long, detailed comments (see below :towel: ) and you’re arguing the counter-orthodoxy5 without, in my opinion, crossing the line, all of which gets my sympathy, but I think you’ve made some (very understandable) blunders due to circumstances you aren’t aware of.

That’s life. I don’t think they are “blunders,” however. When I toss a pebble in a pond and its splashes, it would not be a blunder unless it creates damage to some goal important to me. In fact, the splash tells me far more about the pond than a more cautious approach would. I assess actions based on outcomes, not on presumed freedom from “error” as if that were an intrinsic characteristic of the actions, which the language of “blunder” incorporates. If my goal were not to break rules, it would be a blunder, or, in my training, that is called a “breakdown.” But it is also said that “from breakdowns come breakthroughs.”

I became, as a result of the comment, very quickly aware of many aspects of the situation that I might not have learned for a long time. Not only has no harm been done, I saved myself a great deal of wasted work. Writing details responses takes much time. Mark Twain said, about a long letter, “I would have written less but I didn’t have time.” That is, writing effective polemic, if it is to be deeper than “you’re an idiot,” takes time. Providing sources takes time (and this is part of how I learn when writing sourced material. To provide a link, I have to look at the source again. So I end up seeing sources over and over. Basic method of learning: exposure to material. It can actually be superior to what we call “understanding,” which is often an illusion (meaning that we have some conclusion that fits into our world-view).

This forum, while having long ago branched out, started as an anti-birther forum. Conspiracy theorists in general6 are still a major focus.

What I see as the Fogbow condition correlates with that. Moletrap was started by Steorn debunkers. RationalWiki was started by Conservapedia debunkers. These become insular, self-reinforcing social structures. RationalWiki does build content, but it is heavily biased in a particular direction. Moletrap doesn’t, generally.

It is not that the debunkers are “wrong.” It is that contrary views are buried in mud. On Moletrap it was quite obvious. That community effectively denied the existence of pseudoskepticism, which is an extreme view, with no distinction being made between pseudoskepticism (which fails to be self-skeptical) and genuine skepticism (which does not require brains falling out, it does not require accepting and believing “woo,” and the very term “woo” is pseudoskeptical, it has no clear definition other than “stuff we think is loony.”

As such, two things are true: first, some of the people, especially those who have been here for a long time, have a very quick trigger when they think people are supporting frivolous arguments or woo, and, secondly, while the membership here is very diverse, it is still skewed heavily towards lawyers.

This could be both a strength and a weakness. Lawyers are skilled in argument, at inventing arguments to support any position whatever, including attacking and discrediting the views of others. Some lawyers are skilled at dispute resolution and mediation. Some are fight-to-the-bitter-end-never-give-up hired guns. And then they follow those same principles with their own opinions, a busman’s holiday.

Unfortunately, you happened to run afoul of one of the most well-respected8 and grumpy of those lawyers, who seems to have thought that your comments implied beliefs that were frivolous or unscientific and, as you pointed out, he trolled you about them. Now, you’re certainly right that he showed contempt for your ideas, and while the motivation for your insult was certainly understandable, you are the one who broke the rules.

The rule I broke was calling him what he obviously was, i.e., the name of one who engages in his behavior. That was from one incident, and would not, in itself, an identity define, but what I saw was clear enough to make the call, and what is being said here confirms that the call was not just my own opinion, but matches the community opinion. But he is “one of us,” and I wasn’t. One of the claims made as a result of my comment (besides a call to effectively ban me —  sorry, not allowing comment on the topic of interest, but only in the Cesspool or the Dungeon or whatever it is called may not be “censorship,” but neither is total ban, because the banned person is not prevented from expressing their opinions except in one place. It would still be a ban) was that I didn’t know what a troll was. Which would, of course, be inviting argument, since I have thirty years of experience with on-line conferencing. I was not claiming that the fellow was an “actual troll,” which would require showing that he lives under a bridge, but rather was behaving like a troll, showing signs of habitual trolling, and that claim is confirmed here. But apparently accurate description of behavior is not allowed on Fogbow, if it gores the valuable contributor. This is very common, and boring.

Now that’s certainly not a cardinal sin and, even if you do get thrown in the FEMA camp (and I don’t believe you should or will), you probably wouldn’t even notice the difference (except that people would be free to insult you and vice versa),

FEMA Camp is a user group. From Fogbow Forum information:

FEMA Campers is a closed group. Birthers, SovCits, trolls, and anyone else who joins the forum in order to hassle us are put in this group. Then they can only post in FEMA Camp 7½, a hidden forum.

The FEMA Staff & Visitors group can see the FEMA camp. If you don’t join, you don’t see us dealing with the troublemakers.

Sterngard Friegen is in a group of his own, for reasons that will become apparent when you get to know him. He is the Super Grumpy Geezer.

Why in the world would I write for FEMA camp? I can write on Quora, say, and have 2.6 million page views, I can write on my blog and create useful pages and discussions (and blog posts, i.e., opinions, though some pages express opinions), and have many appreciative readers and why should I care about the others — they don’t care about me. (If they do, they will comment and I respect them and generally reply, even if they are telling me what I’ve heard for as long as I’ve been writing, I write too much. To that comment I say, “Don’t read it, then. Or ask for a summary. Or wait until someone comments and reply to that. Your choice.”

I would surely notice that I was not allowed to post in a topic of interest. Or if somehow that post is there (not rejected by the software), I would notice that I couldn’t see it when not logged in. I don’t know how Fogbow implements this ban that it pretends isn’t a ban.

Fogbow administration obviously has decided that Stern is an exception and may insult others (perhaps as long as he avoids the direct insults that are easily seen without having any idea of the topic). So he can troll others, those people who come to Fogbow to “hassel us, ” because that serves a useful function: when the person, generally a noob, responds like an ordinary human, returning insult for insult, that person can be FEMA camped for breaking the rules. I saw this strategy used to great effect on Wikipedia, there were users who freely broke the rules, in order to tempt “POV-pushers” to violate the rules, to, then, provide easy cover for administrators, their friends, to ban those people. The administrators had points of view that they pushed, but often had difficulty with what they called “civil POV pushers.” Those who followed the rules to push a POV. Wikipedia fell into some internally contradictory tropes, such as the idea that neutrality can be found by excluding people with strong points of view. It often excludes, then, experts, from participating in the discussions.

In this case, if I were to tendentiously argue that this was all unfair, that Stern was truly a troll, i.e., had been trolling — there is no other objective definition — the community, with established habits, would pile on and I could be actually FEMA camped. I won’t do that on Fogbow, and, in fact, I’m not going to argue on Fogbow at all. What I will do will not be argument, itself. Mostly, though, I won’t be reading or following Fogbow, but may look at discussions there pointed out to me. Whatever, it depends somewhat on how much free time I have and what I have to do with that time. I wrote that I posted on Fogbow “Just Because.” I.e., no particular good reason, and I’d chalk it up to testing the waters.

but, if you’re going to hang around here9, I would suggest that a sincere apology to Stern for the insult would probably go a long way towards getting people to take the time to look at who you are instead of who they think you are.

What would a “sincere apology” look like? My opinion, now strengthened, is that Stern trolls users, at least he was trolling me. I don’t see any sign that he was harmed, other than possibly being, himself, trolled into making some stupid comments. But his friends think he is brilliant. Personally, I think that the community is enabling him and harming him. I’m also an “old geezer” (73), and think that when people conspire with my stupidity, they are truly harming me.

So how could I apologize “sincerely”? I know how to influence public opinion in situations like this. But do I want to? Is Fogbow my target audience? (No. Not lawyers, for the most part. Scientists and decision-makers in funding agencies. My blogging is to create a channel for meeting possible supporters for the long-term work, to recruit leaders and empower them and “leaders” can include genuine skeptics who will actually study a topic, seeking deeper understanding.)

I am not willing to lie or deceive in order to generate popularity. I will shut up about some things, not every truth or opinion must be stated. I’m not going to break the rules, though what I’ve found is that if someone is considered an outsider, the rules may be interpreted to ban them, it’s common. What I will do on Fogbow may indeed create some deeper tests. Anyone watching will be able to learn from this.

It’s a small matter and everyone knows you didn’t violate the rules intentionally (and that Stern is a expert at walking the line without crossing it — not to mention really grumpy), but it would be a show of respect for the community and probably enough to let the matter die and return the discussion to the case (or cold fusion in general), which I believe is what you would like.

I am not maintaining the discussion on Fogbow. If that community wants to beat a dead horse, they can continue the conversation. Communities like Fogbow typically prefer to discuss personalities rather than principles and objective fact. What happened on Fogbow is quite common.

You said:

Abd wrote:
I am not a “real lawyer,” for sure, but I’m in regular consultation on these issues with one, and others are chiming in.

Which was simply true.

You clearly want the respect that you think you are due for your knowledge and expertise,

I actually DGAF. However, I understand that if I have knowledge, I have an obligation to share it. It is up to others if they take advantage of this or not. Those who do, learn, those who don’t — I am not responsible for them. They make their choices. I do not “hide my light,” under some idea of pious humility. I don’t consider that kind of humility to be a virtue, at all. Genuine humility, to which I aspire: I know I make mistakes and will consider what is pointed out to me as error.

However… trolling never brings this out, not directly, though I can still take advantage of the opportunity.

but, in trying to convince us that you deserve respect you unknowingly disrespected the knowledge and expertise of this community. Roughly half of the people that are engaging with you are real lawyers (and good ones).

If I tried to convince people of that, the effort would be self-contradictory and doomed. Human beings deserve respect, even from lawyers. (Cue a series of Bad Lawyer Jokes.)

Most people (including friends who don’t know me face-to-face) will not correctly assess my goals and motivations. That’s just the way it is.

In particular, in your exchanges with Mike Dunford it is very clear that you don’t understand that, even in a group of outstanding attorneys, Mike is special. When he gives his opinions, everyone listens carefully, because after over 7,000 posts demonstrating his knowledge and insight he’s earned enormous respect. When he says, “I’m relieved to learn that my years of legal education have not been entirely in vain.”, everyone here is quite aware of just how erudite a legal scholar Mike is.

I don’t doubt it. However, he was making assumptions about the case based on shallow knowledge of it. The greatest expert in the world who does that is out on a limb. The number of posts on a discussion Forum like Fogbow is not a particularly impressive credential, by the way, I place more credence in your own opinion.

Which is not to say that your knowledge and insight into this case isn’t welcome, but it is generally a good idea for IANAL types to be careful about asserting themselves as legal authorities, especially when in discussions with actual lawyers (which is pretty much every thread here).

I have a habit of assertive writing. I will describe things as I see them. IANAL (I am not a lawyer, folks) will cover that there will be things that I misunderstand or miss, but in real-life conversations with real-life lawyers, these are easily fixed. Real-life lawyers, in my experience, listen to my comments, because I’m coming from outside the box and I might see something that, out of habit, they might have missed. Or not. I might be seriously mistaken, so they say so, directly, and if they are true experts instead of stuffed shirts, they can and will tell me why, ordinarily.

If you do a little listening and then ask some questions, I’ll bet you will learn some new things about the law yourself. I certainly have11

I may ask questions, though I do have a lawyer I can call for that.


Abd wrote:
I posted here Just Because I know more about the topic (that lawsuit) than almost anyone else on the planet, and this discussion was mentioned elsewhere. I’ve been funded to cover the trial, and I have multiple places to publish that coverage.

Okay, so you’ve been trolled and scolded and talked about and you’re probably thinking, “why should I bother to stick around?” What you just said is why. I don’t believe you can find a more discerning audience to which to publish your coverage or a more knowledgeable group with which to discuss the merits of the case.

The Fogbow software sucks and is not designed to handle the kind of writing I would want to do. I will publish here (or maybe in Infinite Energy, it’s been suggested, but I have no agreement with them.)

Another place to publish with a wide audience is Quora, where I have many followers, and where there are deep experts on just about everything.

There’s a long standing tradition on the Fogbow of having BOTG (Boots On The Ground) for trials of interest. Members (both lawyers and non-lawyers) post their notes and then the ask questions and start speculating on the meaning and significance of what happened. There is much popcorn and good times all around.

I’m on a low-carb diet. However, I have nothing against good times. If Fogbow sends a Boot, we might have some good times if we meet. I’m big on real-life meetings, it is far more fun than pounding on a keyboard. Or Fogbow could consider me a Boot. It will be up to the users and how they use the opportunities that I present.

So here’s my challenge to you: stick around long enough to post some coverage from the trial and answer the questions you get from Stern and the other lawyers and then see if the analysis they give is correct. I bet it will be. And I bet you will find it a worthwhile experience too. also. What have you got to lose?

Everything and nothing. I stand for the nothing part. I’m not LANCB. I call that “binding the future,” and it is generally a stupid thing to do. People do it because they don’t trust themselves, which is a generally disempowering position.

Questions, I haz some. You say you are being funded to cover this trial, by whom and what is their (and your) interest?

I don’t ask them. Some donors may be seen publically on the GoFundMe site. Some donations have come from a lawyer who saw what I was doing and offered to cover Pacer costs. He wants to be anonymous. But I can say that he has no connection with the parties in the case. Indeed, so far, no donor has any known connection with the parties. What has been said is that they are supporting my reporting, the Rossi v Darden resources on this blog, and they trust my honesty. Most would be called, perhaps, “believers,” i.e. they think LENR is real.

However, that does not bias my reporting, at least I hope not!

My interest is in the outcome of the first major investment by a commercial entity in LENR in a long time. My interest in going to Miami is to see the parties and witnesses myself, personally, instead of just what is written. We can’t see the video depositions, which might convey something. I also may meet with some of the involved people. That is likely, though not arranged yet. I am, as part of this trip, visiting Washington, D.C. and will meet with at least one scientist there. Maybe two.

Mostly, though, I’m interested because It’s There. I like fact and evidence, much more than opinion and conclusions.

What are your relevant credentials and experience? I assume from your name that you are (or were) a graduate student, is that correct, and if so, what did you study?

No. I never completed college, nor was I a graduate student. Abd is not “All but degree.” It is the first noun in my Muslim name, I accepted Islam in about 1970, and have written more about Islam, overall, than about any other topic, over the years. The name is Abd ul-Rahman, “servant of the merciful.” (“Abdul” is not actually a Muslim name, but a fragment of a phrase taken as if it were a word.)

I attended Cal Tech, sitting in the Feynman lectures in 1961-63. I dropped out, became a musician and became involved with “spiritual communities,” and was recognized as a teacher. I created a career as a kind of electronics engineer, and still have some income from the design service I started. I retired on social security, but then went through extensive training from Landmark Worldwide, perhaps specializing in community projects (not “Landmark community,” the training actually prohibits projects involving Landmark graduates specifically, but must be “outside community,” with measureable results. I was a Wikipedia editor, known as standing for community rights vs the “administrative cabal,” which was a Jimbo Wales term. Later, if you called them a “cabal,” you were labelled as a conspiracy theorist, but … no conspiracies are needed. Cabal behavior functions through shared watchlists and interests, cabal members defend each other and attack “enemies.” Sometimes very effectively, if there are members who are administrators. Wikipedia is largely helpless to deal with it.

You referred to later work (after P & F) verifying LENR. Could you give us a layman’s summary of that work and the strength of those results? It might help if you could give us a clear statement about what you think is established science and what you believe that hasn’t been demonstrated yet.

That’s a huge topic. There is a video published by Jed Rothwell that is decent. Focusing on what is the most established science would be my paper published in Current Science in 2015.

I do not agree with everything in the video. But nobody is perfect.

On an unrelated note, do you know anything about Steven Jones, former colleague of Pons and Fleischmann? I’m curious as to the quality of his earlier work given what he did later13.

I’ve met Jones, at ICCF-18 in 2013. Jones is far from popular in the LENR community. His work was entirely different from the FP Heat Effect. He was reporting very low levels of neutrons, and a reaction rate far below what could generate major heat. I shook his hand, congratulating him for being the only skeptic to actually critique the published work of Melvin Miles on the heat/helium ratio, in a peer-reviewed journal. What is unfortunate, though, is that though he pointed to possible heat measurement errors (probably not real, but this is a very ordinary objection) and possible helium measurement errors (the standard one is leakage from ambient, though some results are above ambient, just not the Miles results), he did not address the correlation, which is very difficult to explain with a theory of artifact. It is the correlation, not the separate results, that was significant about Miles.

As to his later ideas, well, sometimes people go off the rails. It does not tell us much about his earlier work. There are mysteries in the 9-11 evidence and there is common thinking that goes “if it isn’t explained, it must be …. [fill in theory].” When someone actually creates a theory that fills in a few blanks, they can become quite enthusiastic about it.

I concluded years ago that there are mysteries that will never be resolved. That is more or less meaningless. What a mystery shows is that for someone, something is not explained, they don’t know enough. So if one wants to know, investigation is in order, but most people are looking for quick answers, real investigation is far too much work. Or might even be impossible. I’ve looked at the videos. There are people who believe that the radio tower vaporized, and that one is obviously an appearance, unsupported by the videos if one looks carefully (this is an element in a directed-energy-beam theory).

Anyway, sorry your welcome to the Fogbow has been a little rough, but know that your comments have been appreciated and I hope that you will persevere and discover the quality of this group. I may be a wee bit biased, but I think the Fogbow is quite simply the best community on the internet.

Not in my book, though, to be sure, I don’t know Fogbow other than only one set of interactions. I was threatened with FEMA camp, but not warned by any administrator, nor did any administrator suggest to me that either I was safe, or in danger, or warn me.

However, Quora is fantastic, with a community of some of the most skilled writers on the planet. It has problems, mostly due to naive administration (Facebook people!). But, still, there are writers there who are, routinely, a joy to read. The format more or less discourages the kind of endless argument that is common on some blogs and sites like Fogbow.


It has been bugging me for a while now and I gots to know… WTF is “1 Cranch 137, 177”?

1 Cranch 137, 177 is a device used by a lawyer who wants to display his insider knowledge, his familiarity with esoterica. To others it would Marbury v. Madison.

From Wikipedia, “while serving as a Circuit judge, Cranch also served as the second reporter of the Supreme Court from 1801 to 1815. At the time, the reporter was an unofficial post and he used his own funds to produce the reports.[citation needed] Cranch took on the responsibility because of his respect for precedent.[citation needed] He was slow in producing his reports of cases and their accuracy was questioned.[citation needed]

So what might be cited as 5 US is instead cited as 1 Cranch, the reporter. “5 US” would be a later name, 1 Cranch is the original publication. Volume 1, I imagine. 137 may be a page number or docket number, I didn’t find that. Someone who actually looks at the book may find this. Someone familiar may simply know. Remarkably, Googlebooks does not seem to have it.


Thanks for starting this topic! I’m really enjoying it.
:thumbs: :popcorn:

I personally find the topic fascinating, a drama, a comedy of errors, one ridiculousness after another, stranger than fiction in many ways. Shallow, knee-jerk reactions appear common in all directions.

1. To Abd: “Too also” is a common Fogbowism, not some kind of speech impediment. (back)

When in Rome, too, also.

2. To Abd: a collective noun used to refer to the membership of the Fogbow. I believe it is the name for a group of weasels or some such. (back)

Something like that. I was put in that group.

3. So long as a hypothesis isn’t falsified (and no one has proven LENR can’t happen), a scientist is always free to argue for it on the merits. (back)

In fact, scientists, like everyone, are free to argue for anything forever, regardless of flabber like “proof.” By the way, it is generally considered impossible to prove that “LENR cannot happen.” That was in the first U.S. DoE review. Rather, it could happen that evidence appears to discredit reasons to think it exists. Unfortunately for the knee-jerk “impossible” debunkers, cold fusion is known and accepted to exist, as muon-catalyzed fusion. (Steve Jones’ specialty, by the way, but this is not controversial). So the question is whether or not there are any other possible catalytic or other processes. I consider the heat/helium evidence very strong, and widely confirmed, with no substantial negative evidence, but … many people remain skeptical because blah, blah, hence the effort to increase precision. That is a classic test of fringe or pathological science: does the effect disappear when precision increases? (Researchers in the field already know that in some cases, it doesn’t, but skeptics can always claim “file drawer effect,” which is a genuine hazard but does not apply to the best research.

4. Which is to say that it will be scientifically demonstrated one day. (back)

My hope is always in the revelation of reality, I trust reality, not my ideas about it or anyone’s ideas.

5. Which I know is hard. (back)

Only if one is attached to convincing someone. My training is not to convince, but to offer opportunities. I have had little trouble, though, finding skeptics who agree that testing heat/helium is a great idea. Pseudoskeptics keep repeating “bogus,” or “even if it’s real, it could never be practical,” or “you are just a stupid believer,” or they say it more politely on occasion. I really only care about encouraging scientists to do genuine, careful research and encouraging those who want to see that happen to support and fund them. So Andrea Rossi can be seen as a huge distraction, someone who wasted millions of dollars in his own fantasies.

I was thinking about this on the way home. In some ways, some of the evidence indicates that he believed his effect was real. There are other ways where he clearly lied, but sometimes fanatic believers will lie, thinking it is justified by necessity. In any case, that’s basically over. Anyone who invests in Rossi or anything like his claims will likely be far more careful in the future. No more pandering to paranoia.

6. Such as sovereign citizens. (back)

We are sovereign, but idiots have appropriated the concepts and live in cloud cuckoo land, or that probably is a nicer concept than the cobwebs filling some minds.

7. I’ve certainly done much, much worse myself… :towel:  (back)

Basic discussion rule: nobody is ever obligated to answer anything if it doesn’t come by service of process or at least registered mail. If someone is asked a relevant question, and that is confirmed by others, and keeps on posting repetitive nonsense where that question’s answer may be significan, this might shift as to what is socially acceptable, but trolls imagine that they make the rules for everyone to follow. Except for them, of course.

8. For good reason. (back)

I.e., excuses.

9. And I sincerely hope that you do. (back)

Thanks. Not going to happen. You are welcome here, and I am likely to occasionally ask questions on Fogbow, as long as that generates value, and I may post occasional comments there, but only as links to this blog. I’m not going to write the kind of explanatory posts that are obviously disliked by some, the expression is pearls before swine, which is not a claim that my comments are pearls of wisdom or that Fogbowers are swine, but that my writing appeals to some and not to others, and writing for Fogbow, the little I did, is not fun, too much work for too little value. I can write for Quora and get millions of page views, if readership is what I want. But at this point, I’m not writing much for Quora, and am almost entirely writing here. And people who like my writing can cite it and link to it, and those who don’t like it can ignore it.

11. I can cite 4 centuries of jurisprudence making President Obama a natural born citizen.12 (back)

I’m sorry.

12. Which is now, of course, totally irrelevant. :crying: (back)

There, there. Remember that it was fun while it lasted.

13. He completely abandoned his scientific integrity to become a 9/11 truther. (back)

I’d rather not sit in judgment of the scientific integrity of a man just because, on some topic, he goes off the rails. If I had time or interest, I’d look more closely at his claims. But I don’t.

There are millions of stories in the Big City. I choose stories that create inspiration. That one doesn’t. Doesn’t mean it’s wrong, but … the stories we follow create the lives we lead. What does that one create?

Ah, one more point before I publish this. Mike brought up a question that is worth answering. What elements in the Industrial Heat Motion for Summary Judgment were worthy of acceptance? I was vague about that, and focused on the failure of the Judge to cover the facts and arguments. Mike has an impression that the Motion was not well-argued. Is that true?

This is not a question to be answered off-the-cuff, and I won’t get to it, until, at least, I’m on the bus to Miami or even later. I would expect to take at least a full day to write something like that, even though I created some study documents that will make it easier.

How not to address summary judgment

My free subscription to Law360 expired, so I can’t easily read the whole article there. However, it reminds me to examine the Altonaga decision, which at the time struck me as woefully uninformed.

My guess is that Altonaga did not read and consider the evidence and arguments, but, instead, simply took the word of one (or both) parties that the alleged facts were “disputed.” She was overwhelmed by verbiage, claiming “dispute,” where the underlying facts were not, in fact, disputed. Rather, the disputes actually alleged were over possible interpretations or implications of the facts, and by taking a dispute as being “factual,” she was left with nothing to judge. Continue reading “How not to address summary judgment”

Don’t pee on my leg and tell me it’s raining

Please. Don’t.

That’s the title of the book by Judge Judy that apparently led to her extremely popular TV “arbitration” show, presented as if it were a small-claims court. As an actual judge, Judy Sheindlin was known as outspoken, but on the TV series, she takes this to extremes. She’s smart, and she’s quick, fully “self-expressed.”

A comment by Sam, here, pointed to Youtube of her work, which I watched.

I think we might get somewhere if they let this
Judge handle Rossi VS Darden.

I dive into the world of Judge Judy, new to me. Continue reading “Don’t pee on my leg and tell me it’s raining”

She’s underpaid or understaffed

The judge. Faced with three motions to dismiss, and not having the time to review all the claimed “undisputed facts,” she punted.

It took me months of study on this case to come to the point where I might be able to see through the fog. I never finished the study pages, though I may still work on them for historical value, but at this point it is moot. An appeal of a dismissed MSJ is not likely, and that it might even be possible is controversial.

The judge wrote,

The parties’ voluminous, competing briefing and submissions plainly show the record is brimming over with disputed issues of material fact. Indeed, the Court is hard-pressed to locate any material facts on which the parties agree. Disputed factual issues are for the jury to determine.

In reviewing the MSJs, Oppositions, and Replies, what I found, way too commonly, was fact, clear from the record, that was nevertheless “disputed,” ending up as a matter to be adjudicated, when the asserted fact in the Motion was not at all in dispute, but rather possible implications.

Continue reading “She’s underpaid or understaffed”

Physician, heal thyself

This is just too funny to pass up. On LENR Forum, Zeus46 wrote:

maryyugo wrote:

I used to know an old doctor, now dead, who actually met and treated Papp for [redacted]. He said Papp was a flaming nut case (not his words– he said [redacted]).

Some interesting bits and pieces from California’s Confidentiality of Medical Information Act:

“CMIA prohibits a health care provider, health care service plan, or contractor from disclosing medical information regarding a patient, enrollee, or subscriber without first obtaining an authorization, except as specified.”

Note: I have redacted the medical information. (Not entirely, a doctor who treats someone and calls him a “flaming nut case,” would probably be violating HIPPA and CMIA, and repeating this could still be a violation.) I’m not a California resident, but just to make the point. CMIA prohibits any person from releasing private medical information, not only the providers listed. There are sources warning the media, for example, about publishing such information without permission. I’m reminded of the physician who accessed the medical information, particularly death certificate information, for Atkins, the cardiologist who developed the Atkins Diet, and then released it for political purposes (and it was misleading). 

Zeus46 went on to quote many relevant regulations and issues. Without doing extensive legal research myself, it looks like, on the face, the regulations set up sanctions for physicians, in particular, but also some other individuals or entities, for disclosing information similar to what maryyugo has posted.

It is possible that the original disclosure by Papp’s doctor was not a violation of regulations at the time, but this does not excuse maryyugo from the present violation. It is obvious to me that Zeus46 knows the real-life identity of maryyugo, it is not difficult to find, since he outed himself years ago, but continued using the “anonymous” identity. The real person, I’d give it more than 99% probability, is a physician licensed in California.

It appears that “Mary” is so eager to present classic debunkery, and so eager to prove it with “evidence,” that he completely ignores legal risk from his profession.

Zeus46 did not actually reveal that maryyugo is a physician, so he did not violate LENR Forum rules against outing or doxxing.


I had assumed, as did others, that the CMIA rules applied to health care providers. They do, but they also apply to everyone. From LENR Forum:

THHuxleynew wrote:

maryyugo wrote:

I’m surprised you can put your clothes on by yourself in the morning. You can, can’t you? PS: dead people can’t sue for damages nor can anyone on the behalf. Not to mention that I am not releasing any of Papp’s sordid records because I never saw any. I am not even reporting facts about Papp! I am simply reporting an anecdote about what someone told me. Hear say. Also you seem to have lost track and wandered into the wrong thread. Anyway sue me. Give it a try. I am terrified.

FWIW, Abd’s comment on this related not to anyone suing you (ridiculous) but to professional disciplinary action for which no doubt the rules are different. However, I have no idea what is your profession, nor any of the details here, so what he suggested remains for me highly speculative.

I would assume that Zeus46 knows Mary Yugo’s identity. It is trivial to find. I have confirmed the identity and “Mary” has revealed, at various times, personal history that matches that of the identified person. One will see people, in various fora, calling Mary by the real name. Mary denies it, but the real person could trivially torpedo this, if different.

I was concerned that the comment here might not be from Mary, but could be a troll. This has definitely happened in the past. So I checked. The information I have as admin here is consistent with the known identification; more than that I will not say. Absent necessity, I will respect user rights.

Mary Yugo is a licensed physician living in California. He has a history of debunking (and has done real investigation, qualifying him as a skeptic in some cases). However, he is also highly opinionated and knee-jerk contemptuous of others who might be pointing something out that he does not understand, and this sequence shows it.

The risk is low, but Mary has not understood the risk. I do not know how CMIA is enforced, there might be no precedent, but the situation Mary describes is of a physician treating Papp revealing what would now be illegal to reveal (I don’t know about then). According to Mary, that physician is deceased, but CMIA also prohibits any person from revealing such information. And any person may file a report. If there are no provable actual damages, the potential fine is limited to $2500.

Mary claims it’s “hearsay.” Yes, it is. Hearsay about medical information, and it is contrary to CMIA regulations to repeat that. Theoretically, to anyone. So far, the walls don’t have ears, and in a case like this, my guess is that the courts would rule that CMIA does not trump ordinary freedom of private speech. But this was not private speech.

It was also unnecessary and irrelevant in context. Mary is a gossip.

There are resemblances, to be sure, between Papp and Rossi. And as to what is involved here, an alleged physician’s diagnosis, that merely demonstrates what was already known: Papp was not necessarily, himself, a reliable witness, and from the submarine incident, may have been capable of staging an elaborate fraud. The diagnosis, however, does not show that the Papp engines did not work, and from what I’ve seen, there is sufficient evidence that they did, in fact, work, to keep this affair in the realm of mystery. Mallove wrote an extensive article on this, and I consider some of his expressed opinions there unfortunate and not yet supported by reliable evidence, but … there are some things that we may never know. Or maybe the “Papp effect” will be confirmed in some way. What I have seen in this line is quite unconvincing.

We also know, then, that Rossi is an unreliable witness and is capable of arranging an elaborate fraud (the fake customer!). We know that Rossi was accused of various frauds in Italy; the ultimate disposition of all that remains a bit unclear to me. Rossi has claimed that all charges were dismissed and all fines refunded, but I have not seen that conclusion from any independent investigator. However, all that does not demonstrate that there is no Rossi Effect.

One statement that IH has made has raised concern for me. From the joint stipulation, IH introduces their “Statement of the Case” with:

Plaintiffs claim to have invented a technology called the “E-Cat” capable of violating the law of conservation of energy by producing far more energy than it consumes.

First of all, the plaintiffs do not claim that the E-Cat is capable of “violating the law of conservation of energy,” and the concept of “consuming” energy is scientifically defective. What is referred to is input energy, and, yes, it is claimed that the E-Cat generates more heat than could be produced by input energy. However, this does not violate conservation of energy if there is a fuel.

As a trivial example, it takes energy to detonate a stick of dynamite, but there is no violation of energy conservation just because the explosion releases far more heat than is generated by the blasting cap that triggers it. Energy “input” must include the potential energy of all system components.

Rossi did not originally provide any theoretical basis for his claims, but he was generally working with LENR, so the general claim would be that there is a nuclear transformation releasing the energy.

If the Industrial Heat investors did not think this possible, without violating conservation of energy, they had no business investing in such a claim. It sometimes occurs that skeptics dismiss LENR as involving “perpetual motion machines.” It would not be that. The energy available from a nuclear fuel is limited. It is not “free energy.” It would not be “perpetual.”

That introductory comment was just plain wrong, because Rossi doesn’t make that claim, and a working Rossi device would not violate conservation of energy. Conservation of energy is an aspect of the first law of thermodynamics, and the IH experts have pointed to violations, but that was in the testing, as to the behavior of steam, not about the claimed effect itself, which would presumably be nuclear in origin. Have the attorneys misunderstood?

If possible, this should be corrected. LENR should not be on trial in Florida.

About transcripts of federal court hearings

Sometimes I have seen claims on lenr-forum.com that the public can obtain transcripts of court hearings by paying for them. I may have said this myself, here, because the filings imply this. However, during the 90 day period before hearing transcripts are published to PACER, it appears that only parties and attorneys may obtain transcripts, they are limited:

During the 90-day period (which may be extended by the court), access to the transcript in CM/ECF is restricted to court staff, public terminal users, attorneys of record or parties who have purchased the transcript from the court reporter/transcriber, and other persons as directed by the court (e.g., appellate attorneys). Also, during this time, parties may redact personal identifiers. After the 90-day period has ended, the filed transcript will be available for inspection and copying in the clerk’s office and for download from the court’s CM/ECF system through the judiciary’s PACER system.

Just as any member of the public may attend the actual hearings, any member of the public may use the “public terminal” in the court to read the transcript.

There are two obvious concerns. First of all, a hearing transcript may reveal personal information, that could be redacted. This is covered by Privacy Policy for Electronic Case Files. The court will not publish the files, other than on the public terminal — which does not allow printing, but, ah, google glass? — ; however, the concerns are to have been addressed within 31 days of the filing of the transcript. Even short of that, it is unclear that publication by an attorney (i.e., providing the transcript to media), if any private data has been redacted, would be a violation. American Bar has a discussion.

The personal identifiers to be redacted are Social Security numbers, names of minor children, financial account numbers, dates of birth, and, in criminal cases, home addresses2.

This brings up the other concern, an attempt to influence the case by “extrajudicial” comment.

Several topics presumed prejudicial to proceedings relate specifically to criminal proceedings. This reflects the comment’s recognition that certain types of proceedings, notably civil matters triable to a jury, criminal matters, and matters that could result in incarceration, are particularly likely to be prejudiced by extrajudicial statements. See Model Rules of Prof’l Conduct R. 3.6 cmt. [6]. These concerns further explain the additional limits on extrajudicial comments (discussed below) that Model Rule 3.8(f) imposes on prosecutors.

Statements Presumed Not Likely to Create Material Prejudice
While the comment sets forth a list of topics presumed to create prejudice, Model Rule 3.6(b) itself provides a “safe harbor” of statements that a lawyer can publish with considerably less concern about whether a pending adjudication may be substantially prejudiced. According to Model Rule 3.6(b), and the majority of comparable state rules, there are seven categories of information that presumably may be disclosed publicly:

the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;
information contained in a public record;
that an investigation of a matter is in progress;
the scheduling or result of any step in litigation;
a request for assistance in obtaining evidence and information necessary thereto;
a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation, and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time, and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

This list is not intended to be an exhaustive list of topics on which extrajudicial statements are permitted. Rather, Model Rule 3.6(b) is intended only to provide lawyers with a list of categories they can discuss publicly with little fear of violating the rules of professional conduct. See Model Rules of Prof’l Conduct R. 3.6 cmt. [4]. For an interesting case discussing application of the safe harbor where a lawyer effectively paraphrases statements in the public record, see PCG Trading, LLC v. Seyfarth Shaw, LLP, 460 Mass. 265, 951 N.E.2d 315 (Mass. 2011).

Is the transcript “information contained in a public record”? Any member of the public may access the transcript. The intention is to avoid revelation of private information, on the one hand, and to avoid prejudice, but this is being balanced with the right of the public to know, and of media to report on the proceedings. Media could send a reporter to the hearing, who could take notes (even verbatim notes if the reporter has that skill, i.e., the skills possessed by an old-fashioned court reporter or stenographer). See Media rules and also General Order 58.

A related concern is that transcripts may contain information that could not be presented to a jury as evidence. However, if it is public record, too bad. A party may request the court to redact anything prejudicial, it is not routine.

So to the present practical reality. It has been claimed that IH is attempting to dominate discussion of the case, while there is no evidence for that.

The argument is that IH would want to appear to the public as the “savior” of LENR. However, sending stooges to the blogs is a very poor way to do that; they could simply issue press releases with facts that are already public record. If they were interested in astroturfing — the definition of which does not resemble anything operative in Rossi v. Darden — there are other actions they could take. How about sending gobs of money to, say, LENRIA or Infusion Institute Inc.? Hint! So far, not a penny to III from IH or anyone reasonably accusable of being an IH stooge. As far as I know, no supporter of III has received any benefit other than information from IH or IH employees or contractors.

I’ll be setting up crowdfunding, though, and there would be no way to prevent such contributions, but … I would certainly disclose any attempt to prejudice my reporting.

(Setting up organizations that pretend to be grass-roots movements but that are actually under the influence and control of the master organization, for the purpose of influencing legislation, through letter-writing campaigns, was “astroturfing,” and that still goes on, but has nothing to do with LENR or Rossi v. Darden. Example, APCO apparently advised the tobacco industry, their clients, to set up such organizations, to pretend that there was a mass movement to protect the rights of smokers — to kill themselves with cigarettes without being informed about the involved science. There are anti-AGW organizations now that are reasonably considered astroturfing, but not all anti-AGW comment is from such, and, in the end, it shouldn’t matter if legislators keep their eye on the ball. On the other hand, if the legislator is corrupt, influenced by campaign donations, always a worry, and lazy, i.e., doesn’t verify the alleged public stand but uses it as an excuse, astroturfing could work.)

Any party could reveal transcripts extrajudicially, bearing in mind the limitations and rules, but, to my knowledge, no party has done so. Publishing excerpts from hearings, as evidence for motions, has been routinely done when relevant. That is not “extrajudicial.” If I were in Florida, I could go to the public terminal and take notes, it appears that this does not violate the rules.

I find it all quite odd, because notes can be inaccurate and biased, and as a non-party and non-attorney, I could not be readily sanctioned for publishing my notes. What would make much more sense would be an accelerated schedule for the public availability of transcripts. There seems to be no stated justification for that requiring 90 days.

Suppose the public sees that some party is being unfairly treated in court. The public could intervene by donating to a defense fund, for example. However, if the transcripts that might show this are not available until, say, after the trial, not to mention all the pretrial maneuvering, the right of the public, the very purpose of requiring public access, is frustrated and only useful for possible appellate review, which can be too late for some important issues.

As part of searching for sources for information on this issue, I found no example of sanctions for public review not showing some egregious violation. The case cited above, PCG Trading, LLC v. Seyfarth Shaw, LLP , involved a denial of an appearance pro hoc vice based on an alleged comment in a law review article. In the end, this denial was rejected by the appeals court, because it fell within the “safe harbor,” in the judgment of that court. Remarkable case: there what stands out is an attorney (Seyfarth Shaw) with an undisclosed conflict of interest who screwed his client over by filing a motion to dismiss a case against the other client. That motion was then used as evidence to allow a filing against his continued client.

I did find a remarkable case where an attorney was sanctioned for uncivil behavior. That was extreme behavior compared to anything I’ve seen in this case, though I’ve seen what could be called uncollegial behavior, aggressive toward opposing attorneys, accusing them of misconduct, and the ruling on that case distinguishes between aggressive promotion of a client’s interests and incivility. What I find especially remarkable in this case was that the respondent blamed others for his own out-of-control behavior. They made him do it, by being such assholes. (including all the other involved attorneys and any judge that ruled against his arguments.) I kid you not. Who could blame him for shouting, in the presence of such extreme provocation? Remarkably, a referee determined a 90 day suspension. It appears that the attorney contested it instead of entering a consent order. The court upped it to two years, more than the Bar Association had requested (one year), required that respondent appear in court for a public reprimand, set up an 18-month probation on the end of the suspension, and recommended (perhaps required) counselling. And this was two strikes, three and additional sanctions would be applied. Disbarment. I hope that the fellow took this seriously. What I know about making mistakes like his is that if one declares and stands for responsibility, it can all go away, eventually. He’d become a more effective attorney. His attempts to blame others were the giveaway that this was not some accident. This also is not just about behavior in Court, this applies to life as a whole.

I also found reference to a case regarding how an attorney is to act if the attorney discovers perjury on the part of the client. It was an extreme case.



Rossi v. Darden docket and case files

This is a compilation of most Rossi v. Darden case files, except as noted.

Files 2016 April–June
Files 2016 July-September
Files 2016 October–December
Files 2017 January–March
Files 2017 April-July

Neutral analysis links
Discussion and opinion links


This page will be updated to reflect new filings, notes, and corrections. Please note corrections in comments below. Such correction comments will be acknowledged but may be deleted when handled if not otherwise relevant where placed.

Eric Walker is also compiling case files. Sometimes he has a file sooner than us. Pacermonitor is a site that sells access to case files, the docket for the most recent files is free. Pacermonitor does not continue to provide free access to the docket beyond a short period of time, and files cannot be read without payment. (At the moment, 5/10/2017, Pacermonitor is not showing any files created after May 3, something appeared broken. I emailed them; they fixed it.)

PACER is a U.S. government site, with free registration (with a credit card). Documents are $0.10 per page, with a limit per document of $3.00, and the minimum billing is $15 per quarter, or 150 pages, below that it is free. (Dockets and certain other reports do not have the $3 limit, be careful!) Files that are 2 MB or larger may have a file size given.


The docket is only periodically downloaded. Every document should be shown in the Files section below (except as noted). Files (are updated as available, usually every day.)

0000-0_docket_up_to_12-06-2016 documents 1-85
0000.1.pdf_Docket_through_2016 documents 86-100
0000.4_docket0309.pdf documents 101-164
0000.5_Docket0317 documents 165-176

Files 2016 April–June

04/05/2016 0001-0_complaint
== 0001-1_exhibit_a 2015 Rossi US Patent
== 0001-2_exhibit_b License Agreement
== 0001-3_exhibit_c 1st amendment to License Agreement
== 0001-4_exhibit_d 2nd Amendment to License Agreement
Document files 2-16 are not downloaded from PACER. These were not, at the time, considered important. If anyone has them, I would appreciate them, and would put them here. Eventually, I may download these for completeness. See 0000-0 above, all files are described in the docket.
06/02/2016 0017-0_darden_motion_to_dismiss MOTION TO DISMISS 1 (Complaint)
06/17/2016 0018-0_rossi_memorandum_opposing_mtd
06/27/2016 0019-0_darden_reply_supporting_mtd
06/29/2016 0020-0_joint_scheduling_report
== 0020-1_joint_proposed_schedule
== 0020-2_joint_election_to_magistrate_jurisdiction
06/29/2016 0021-0_darden_interested_parties
06/30/2016 0022-0_rossi_interested_parties

Files 2016 July-September

07/01/2016 0023-0_order_setting_schedule Trial set for period of 6/26/2017 and other orders
07/19/2016  0024-0_order_on_mtd ORDER granting in part and denying in part 17 Motion to Dismiss for Failure to State a Claim. Counts II, V, VII, and VIII are DISMISSED without prejudice. All other counts remain intact
07/22/2016 0025-0_ordered_mediation Deadline having passed for proposed joint order, the judge orders compliance by July 26.
07/26/2016 0026-0_order_scheduling_mediation Order scheduling mediation for January 12, 2017.
07/28/2016 0027-0_motion_for_extension_of_time_to_file Moves extension to August 5, 2016
== 0027-1_proposed_order for judge to sign
07/29/2016 0028-0_order_extending_time_to_answer until August 5
08/05/2016 0029-0_answer Industrial Heat et al Answer. OCR:29
== 0029-1_exhibit_1 Official critique of Rossi patent
== 0029-2_exhibit_2 Official critique of Rossi patent
== 0029-3_exhibit_3 Six Cylinder Unit photos
== 0029-4_exhibit_4 Rossi blog posts August and September 2015
== 0029-5_exhibit_5 Queries from Murray to Penon
== 0029-6_exhibit_6 list of patent applications
== 0029-7_exhibit_7 Assignment of License from IH to IPH
== 0029-8_exhibit_8 April 2013 Leonardo Certificate
== 0029-9_exhibit_9 Rossi email re Validation Test and “Health Office.”
== 0029-10_exhibit_10 http://arxiv.org/abs/1305.3913 … the “independent professors” Ferrara report
== 0029-11_exhibit_11 Agreement with USQL (Fabiani)
== 0029-12_exhibit_12 Rossi email September 10, 2012 re Hydro Fusion
== 0029-13_exhibit_13 Rossi email Mon, Sep 10, 2012 re European licensees
== 0029-14_exhibit_14 Levi et al, Lugano paper
== 0029-15_exhibit_15 Articles of Incorporation, J.M. Chemical Products, Inc.
== 0029-16_exhibit_16 Rossi email July 05, 2014 re renting to JM in Florida
== 0029-17_exhibit_17 Term Sheet for rental of 1 MW unit to JMC
== 0029-18_exhibit_18 JM Products reports of power used
== 0029-19_exhibit_19 Rossi email Jul 13, 2015 refusing access to IH engineer
== 0029-20_exhibit_20 Original was a large pdf, this is a reduced size jpg of the Bass business card
== 0029-21_exhibit_21 Fabiani emails (2016) 2/23, 4/6, and 4/14, replies of Joseph Murray, 4/26, 5/16
== 0029-22_exhibit_22 Cook and Rossi paper
== 0029-23_exhibit_23 Jones Day (IH) letter to Annesser (Rossi) re patent assignment. 2/7/2016
== 0029-24_exhibit_24 Rossi blog posts Aug 18, 2015 – Sep 13, 2015 (duplicates Exhibit 4?)
== 0029-25_exhibit_25 Rossi blog post April 14, 2016, claiming new sales to Customer of 1-year test.
== 0029-26_exhibit_26 Summons Penon
== 0029-27_exhibit_27 Summons Fabiani
== 0029-28_exhibit_28 Summons Johnson
== 0029-29_exhibit_29 Summons J.M. Products, Inc.
== 0029-30_exhibit_30 United States Quatum Leap, LLC [sic, Quantum] 08/11/2016 0030-0_answer-amended
== 30-1 to 30-25 not downloaded, presumed identical to 29-n.
== 0030-26_exhibit_26 photos of warehouse and customer area
08/11/2016 0031-0, summons, superseded by document 32.
08/12/2016 0032-0_summons_usql Fabiani’s company, mispelled
== 0032-1_summons_penon
== 0032-2_summons_johnson I have no idea why this PDF is so large.
== 0032-3_summons_jm_products
== 0032-4_summons_fabiani
08/16/2016 0033-0_appearance Annesser, Turner, Evans, and Chaiken, of Perlman, Bajandas, Yevoli & Albright, P.L., appear for Rossi
08/22/2016  0034-0_turner_appearance formal individual appearance of attorney for Rossi
08/22/2016 0035-0_evans_appearance formal individual appearance of attorney for Rossi
08/23/2016 0036-0_waiver_of_service For 3rd party defendants, J.M Products, Inc., Henry Johnson, and United States Quantum Leap, LLC
== 0036-1_waiver_of_service
08/25/2016 0037-0_hearing-notice hearing before Magistrate on 8/30 on plaintiff objection to 3rd party subpoenas
08/30/2016 0038-0 (not available)
Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 8/30/2016. John Annesser, Ryan Chaiken and Porpoise Evans for plaintiff; Christopher Pace and Christopher Lomax for defendants and Francisco Leon De La Barra for third-party defendants. (Digital 11:01:25.) (cg1)
08/30/2016 0039-0_motion_to_strike Plaintiff (Rossi) motion to strike affirmative defenses (of IH)
08/31/2016 0040.0 (no document)
PAPERLESS NOTICE of Hearing on 39 MOTION to Strike Affirmative Defenses MOTION for More Definite Statement: Motion Hearing set for 9/27/2016 10:30 AM in Miami Division before Judge Cecilia M. Altonaga. (ps1)
09/01/2016 0041-0_motion_to_dismiss_counterclaims Motion by Plaintiff (Rossi) to Dismiss IH Counterclaims
09/02/2016 0042-0_order_re_motion_to_quash Quashes subpoenas to T.D. Bank, BankUnited, and Accountant James Travis and abates subpoena to T-Mobile four days to give Johnson time to provide information about James Bass. (from hearing per doc. 37)
09/02/2016 0043-0_darden_motion_for_judgment Motion for immediate judgment on pleadings, Count 1.
09/09/2016 0044-0_rossi_response_to_mfj Rossi response to Darden Motion for Immediate Judgment on the Pleadings
09/15/2016 0045-0_darden_motion_to_amend_answer
== 0045-1_exhibit Draft Second Amended Answer
09/15/2016 0046-0_darden_motion_for_time
== 0046-1_draft_order
09/16/2016 0047-0_order_granting-45_-mooting-39-41-46
09/16/2016 0048-0 (no access) (listing kept for historical purpose, the transcript is now available, see the link immediately below.)
TRANSCRIPT of Discovery Hearing held on 8/30/16 before Magistrate Judge John J. O’Sullivan, 1-44 pages, Court Reporter: Carl Schanzleh, 305-523-5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/11/2016. Redacted Transcript Deadline set for 10/20/2016. Release of Transcript Restriction set for 12/19/2016. (Attachments: # 1 Designation Access Form)(hh) See DE 0040, 42.
09/16/2016 0048.0_Hearing_transcript
== 0048.1_Designation_access_form (only of transient interest, probably not now relevant)
09/16/2016 0049-0_darden_notice_of_withdrawal_of_MfJ  Withdraws 43 Motion for Judgment on the Pleadings without prejudice
09/19/2016 0050-0_second_amended_answer (Industrial Heat et al)
50-1 to 50-26 not downloaded, presumed identical to 29-1 to 25, and 30-26.
== 0050-27_exhibit_27 IPH assignment from IH
09/20/2016 0051-0 motion_re_substitution_of_rossi_counsel Removing Silver Law Group as counsel firm for Rossi
== 0051-1_stipulation_re_rossi_counsel
== 0051-2_draft_order_re_rossi_counsel
09/21/2016 0052-0_order_re_rossi_counsel Order substituting new firm for Silver Law Group (new counsel already appeared)
09/21/2016 0053-0_fabiani_attorney_appearance Rodolfo Nuñez, Esq
== 0053-1_fabiani_waiver_of_service
09/23/2016 0054-0_rossi_motion_to_strike Plaintiff’s Motion to Strike in part Defendants’ Second Amended Answer, Affirmative Defenses, Counterclaims and Third Party Claims, or in the alternative, Motion for a More Definitive
09/26/2016 0055.0 (no document)
PAPERLESS NOTICE of Hearing on 54 MOTION to Strike 50 Answer to Complaint, Third Party Complaint, Counterclaim, in Part Second Amended Answer, Affirmative Defenses, Counterclaims, and Third Party Claims, or in the Alternative, MOTION for More Definite Statement: Motion Hearing set for 10/14/2016 08:30 AM in Miami Division before Judge Cecilia M. Altonaga. (ps1)
09/29/2016 0056-0_rossi_motion_to_dismiss MOTION TO DISMISS DEFENDANTS’ AMENDED  COUNTERCLAIMS

Files 2016 October–December

10/03/2016 0057.0 (no document)
PAPERLESS NOTICE of Hearing: Status Conference, re: service of Third Party Complaint, set for 10/7/2016 12:30 PM in Miami Division before Judge Cecilia M. Altonaga. (ps1) (Entered: 10/03/2016)
10/05/2016 0058.0 PAPERLESS NOTICE RESETTING (no document) [Hurricane!] PAPERLESS NOTICE RESETTING Hearing: Status Conference, re: service of
Third Party Complaint reset for 10/14/2016 08:30 AM in Miami Division before
Judge Cecilia M. Altonaga. (ps1) (Entered: 10/05/2016)

10/10/2016 0059-0_ih_response_in_opposition_to_mts_ IH Argument re Rossi Motion to Strike aspects of IH Answer, affirmative defenses, and Counterclaims.
10/11/2016 0060-0_mtd_fabiani Fabiani’s motion to dismiss IH third party complaint
10/11/2016 0061-0_mtd_johnson Johnson’s motion to dismiss IH third-party complaint
10/13/2016 0062-0_order-to-combine_60_61 Dismissal without prejudice of motions 60 (Fabiani) and 61 (Johnson), order to combine as a joint motion, to avoid duplicated arguments.
10/13/2016 0063-0_rossi_reply_to_response_to_mtd Final Rossi arguments on Motion to Strike before hearing 10/14
10/13/2016 0064-0_joint_-motion_for_protective_order Moving to create designations of confidentiality of disclosures in discovery, counsel for all parties agreed.
== 0064-1_text
10/14/2016 0065-0_protective-order signed by Magistrate per joint motion. Allows parties to designate information disclosed in discovery as confidential, with restrictions on who can see it, all subject to court review if requested.
10/14/2016 0066.0_Minute_Entry_Hearing_10-14 Re 54 Rossi Motion to Strike, and status conference, service of 3rd party complaint. See 0067.0 for hearing result.
Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Motion Hearing held on 10/14/2016 re 54 MOTION to Strike 50 Answer to Complaint, Third Party Complaint, Counterclaim,,,,,,,,, in Part Second Amended Answer, Affirmative Defenses, Counterclaims, and Third Party Claims, or in the Alternative, MOTION for More Definite Statement filed by Leonardo Corporation, Andrea Rossi ; Status Conference re service of third-party complaint held on 10/14/2016. Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov (cmz) (Entered: 10/14/2016)
10/14/2016 0067-0_order-on-rossi_motion-to-strike Granted in part and denied in part
10/17/2016 0068-0_ih_response_opposing_rossi_mtd Replies due by 10/27/2016
10/20/2016 0069-0_3rd_party_motion_to_dismiss Joint MOTION TO DISMISS Answer to Complaint … by James A. Bass, Fulvio Fabiani, J.M. Products, Inc., Henry Johnson, United States Quantum Leap, LLC. Responses due by 11/7/2016
10/25/2016 0070-0_rossi_hearing_notice_re_discovery Thursday, October 27, 2016 at 3:00 p.m before Magistrate re Rossi requests for production and interrogatories
== 0070.1_IH_response_to_1st_Rossi_interrog
== 0070.2_IH_response_to_1st_Rossi_prod_req
== 0070-3_ih_response_to_2nd_rossi_prod_request
== 0070-4_vaughn_response_to_1st_rossi_interrog
10/27/2016 0071.0 Hearing Minute Entry hearing set up in document 70 before Magistrate 10/27/2016. The transcript is not available on-line.
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 10/27/2016. John Annesser and Ryan Chaiken/plaintiffs; Christopher Pace and Christopher Lomax/defendants. (Digital 14:51:20.) (cg1) (Entered: 10/27/2016)
10/27/2016 0072-0_rossi_reply_to_ih_response-on-rossi-mtd legal arguments, Annesser reply to IH response to Annesser Motion to Dismiss counterclaims.
11/07/2016 0073-0_ih_opposition_to_69_mtd
11/08/2016 0074-0_order_re_discovery relating to hearing doc 71
11/08/2016 0075-0_ih_hearing_notice_re_75-1 Discovery hearing December 6, 2016 at 2:00 p.m., on Plaintiffs/Counter Defendants’ Responses and Objections to Defendants’ First Request for Production to Plaintiffs.
== 0075-1_rossi_response_and_objection_to_rfp
11/16/2016 0076-0_order_on_rossi_mtd ORDERED AND ADJUDGED that the Motion to Dismiss [ECF No. 56] is DENIED.
11/17/2016 0077.0_3rd_party_reply_re_MTD Third-party Defendants’ combined reply to Counter-Plaintiff’s response in opposition to third-party Defendant’s motion to dismiss Counts III, IV, and V of Counter-Plaintiff’s Second Amended Counterclaims and third-party claims.
11/23/2016 0078-0_3rd_amended_ih_answer Per Judge’s Order DE 67.
== 0078.1 through 0078.27 are presumed the same as 0029.1 – 0029.25, 0030.26, and 0050.27.
11/23/2016 0079-0_ih_notice_of_3rd_answer
11/29/2016 0080-0_rossi_motion_for_time_to_file
Deadline for filing answer was 7 days from order denying Rossi MTD, this asks for seven more days, but then confuses it, so a new version was filed as DE 81.
== 0080-1_proposed__order_text
11/29/2016 0081-0_rossi_motion_for_time
Asks for 14 days to file (due December 14), or 7 days from date of order on 3rd party defendant’s MTD, whichever is shorter.
== 0081-1_proposed__order_text
11/29/2016 0082-0_order_granting_time
12/05/2016 0083-0_dismissal_of_3rd_party_mtd DE69 dismissed sua sponte as moot, as IH counterclaim amended.
12/05/2016 0084-0 Hearing transcript (no access) (listing kept for historical purpose, the transcript is now available, see the link immediately below.) TRANSCRIPT of the Motion Hearing and Status Conference held on 10/14/16, before Judge Cecilia M. Altonaga, 1-60 pages, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/27/2016. Redacted Transcript Dead line set for 1/5/2017. Release of Transcript Restriction set for 3/6/2017. (smn) See DE66,67.
12/05/2016 0084.0_Motion_hearing_and_status_conference
12/06/2016 0085-0_hearing_time_change  ORDER re-setting Discovery Hearing. Hearing re-set for 12/6/2016 02:30 PM in Miami Division before Magistrate Judge John J. O’Sullivan.) **TIME CHANGE ONLY** Signed by Magistrate Judge John J. O’Sullivan on 12/6/2016. (tro) (Entered: 12/06/2016)
12/06/2016 0086-0_hearing_cancelled (Dec. 6 hearing, by IH attorney)
12/07/2016 0087-0_hearing_notice Discovery Hearing set for 12/20/2016 03:00 PM (Rossi request, reviewing 1st and 2nd production requests to IH)
12/09/2016 0088-0 Hearing transcript (no access) Duplicate of DE 84.
TRANSCRIPT of the Motion Hearing and Status Conference held on 10/14/16, before Judge Cecilia M. Altonaga, 1-60 pages, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/30/2016. Redacted Transcript Dead line set for 1/9/2017. Release of Transcript Restriction set for 3/9/2017. (smn)
12/14/2016 0089.0_Rossi_Answer (to the countercomplaint)
12/19/2016 0090.0_3rd_party_MTD refiled after original MTD mooted (per order, D.E. 83)
12/20/2016 0091.0_IH_objection_to_hearing_notice
12/20/2016 0092.0 Minute entry (no access)
minutes Discovery Hearing Tue 3:56 PM
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 12/20/2016. Total time in court: 50 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, Brian W. Chaiken, Christopher Perre. (Digital 15:01:04) (cg1)

12/20/2016 0093.0_JMP_interested_parties
12/20/2016 0094.0_USQL_interested_parties
12/23/2016 0095.0_Rossi_Motion_to_file_late D.E. 89 was filed late.
12/27/2016 0096.0 order (no access)
Order on Motion for Leave to File Tuesday, December 27, 2016 3:40 PM
ORDER denying without prejudice 95 Motion for Leave to File due to the failure to provide a proposed order, as is required by the Local Rules. Signed by Judge Cecilia M. Altonaga (CMA)

12/28/2016 0097.0_Transcript_of_Magistrate_hearing (see below for actual transcript)
TRANSCRIPT of discovery hearing held on 12-20-2016 before Magistrate Judge John J. O’Sullivan, 1-43 pages, Court Reporter: Dawn Savino, 305-523-5598 / Dawn_Savino@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/18/2017. Redacted Transcript Deadline set for 1/30/2017. Release of Transcript Restriction set for 3/28/2017. (dwh)
12/28/2016 0097.0 Transcript of Magistrate Hearing
12/28/2016 0098.0 _Rossi_Motion_to_file_late (renewed with proposed order)
== 0098.1_Proposed_order
12/28/2016 0099.0_IH_Opposition_to_Motion 98
12/29/2016 0100.0_Order _granting_95

Files 2017 January–March

01/03/2017 0101.0_IH_Opposition_to_3rdP_MTD Replies due by 1/10/2017
01/04/2017 0102.0_IH_notice_of_discovery_hearing  January 5, 2017, 2:00 p.m.
== 0102.1_Johnson-Bass_response
== 0102.2_Fabiani_response
01/05/2017 (no doc number) 3:29 PM Util Set/Reset Hearings
Discovery Hearing set for 1/10/2017 at 10:00 AM in Miami Division before Magistrate Judge John J. O’Sullivan. (tro)
01/05/2017 00103.0_Discovery_Order Magistrate order re 12/20 Discovery Hearing. (re Rossi requests for IH)
01/05/2017 0104.0 (no doc) minutes Discovery Hearing Thu 3:50 PM
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 1/5/2017. Total time in court: 43 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Christopher Rebel Jude Pace, Christopher Martin Lomax, Rodolfo Nunez, Brian W. Chaiken, Erika Handelson. (Digital 14:00:42)
01/09/2017 0105.0_Discovery_Hearing_Notice
== 0105.1_Rossi_Response_to_IH_requests
01/10/2017 0106.0 (no doc) Hearing transcript. (see next entry for released transcript)
TRANSCRIPT of discovery hearing held on 1-5-2017 before Magistrate Judge John J. O’Sullivan, 1-39 pages, Court Reporter: Dawn Savino, 305-523-5598 / Dawn_Savino@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/31/2017. Redacted Transcript Deadline set for 2/10/20 17. Release of Transcript Restriction set for 4/10/2017. (dwh)
01/10/2017 0106.0 Hearing Transcript
01/10/2017 0107.0 Minute Entry (no doc)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 1/10/2017. Total time in court: 45 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, Erika Handelson, Christopher Perre. (Digital 10:05:32) (cg1) (Entered: 01/10/2017)
01/10/2017 0108.0_Rossi_Motion_for_Sanctions
== 0108.1_Patent Exhibit A
== 0108.2_Rossi_email_2-5-2015 Exhibit B
== 0108.3_Rossi_email_3-17-2015 Exhibit C
== 0108.4_Darden_email_4-10-2015 Exhibit D
01/10/2017 0109.0_IH_Motion_to_admit_Bell new IH attorney
== 0109.1_Certification_of_Bell
== 0109.2_Proposed_Order
01/10/2017 0110.0_3pD_Reply_to_IH_response_to_MTD Re DE 90 & 101
01/11/2017 0111.0_Order_on_motion_to_appear
01/11/2017 0112.0_Order_on_motion_for_sanctions
01/11/2017 0113.0_Fabiani_M_for_leave, attend mediation by internet
01/12/2017 0114.0_Order_granting_motion_for_leave (DE 113)
01/12/2017 0115.0_IH_Proposed_discovery_order re hearing 104
== 0115.1_Proposed_text used in 116.
01/12/2017 0116.0_Order_on_discovery re 3rd party defendants, see 102.
01/13/2017 0117.0_Mediator_notice_of_impasse
01/13/2017 0118.0_IH_motion_for_60_day_extension (discovery delays)
== 0118.1_Exhibit_A emails, Rossi to Bass and Johnson’s legal assistant
== 0118.2_Exhibit_B copy of DE 116
01/13/2017 0119.0_Notice_of_filing of proposed order for 60 days
== 0119.1_Text_of_proposed_order for 60 days
01/17/2017 0120.0_Order_on_3rd_Party_MTD Count III intact, Counts IV & V dismissed.
01/17/2017 0121.0_Order_denying_Motion_for_time
01/27/2017 122.0_Notice_IH_draft_discovery_order
== 122.1_draft_order
01/27/2017 123.0_Order_per_122
01/27/2017 124.0_IH_motion_to_file_4th_AACT
== 124.1_proposed_AACT Exhibit A
== 124.2 – 124.28 27 Exhibits assumed unchanged, see Doc 50 and prior
== 124.29_Fabiani_contract_renewal Exhibit 28
== 124.30_Fabiani_email_re_contract Exhibit 29
== 124.31_Proposed Order
01/30/2017 0125.0_Order_to_expedite
01/30/2017 0126.0_USQL_opposition
01/30/2017 0127.0_JMP-Bass_opposition
01/30/2017 0128.0_Rossi_opposition
== 0128.1_Exhibit_1 part of Penon Report?
== 0128.2_Exhibit_2 JMP electrical billing
01/31/2017 0129.0_IH_reply
== 0129.1_Exhibit_A Chart showing daily utility usage vs Penon and Fabiani
02/01/2017 0130.0_Order_allows_4th_AACT
02/01/2017 0131.0_Rossi_Notice_of_Discovery_hearing  February 7, 2017
02/01/2017 0132.0_4th_amended_AACT (Answer and countercomplaint)
== 0132.1 – 0132.29 Exhibits 1-29 as with Doc 124 and previous. Links for convenience:
== 0029-1_exhibit_1 Official critique of Rossi patent
== 0029-2_exhibit_2 Official critique of Rossi patent
== 0029-3_exhibit_3 Six Cylinder Unit photos
== 0029-4_exhibit_4 Rossi blog posts August and September 2015
== 0029-5_exhibit_5 Queries from Murray to Penon
== 0029-6_exhibit_6 list of patent applications
== 0029-7_exhibit_7 Assignment of License from IH to IPH
== 0029-8_exhibit_8 April 2013 Leonardo Certificate
== 0029-9_exhibit_9 Rossi email re Validation Test and “Health Office.”
== 0029-10_exhibit_10 http://arxiv.org/abs/1305.3913 … the “independent professors” Ferrara report
== 0029-11_exhibit_11 Agreement with USQL (Fabiani)
== 0029-12_exhibit_12 Rossi email September 10, 2012 re Hydro Fusion
== 0029-13_exhibit_13 Rossi email Mon, Sep 10, 2012 re European licensees
== 0029-14_exhibit_14 Levi et al, Lugano paper
== 0029-15_exhibit_15 Articles of Incorporation, J.M. Chemical Products, Inc.
== 0029-16_exhibit_16 Rossi email July 05, 2014 re renting to JM in Florida
== 0029-17_exhibit_17 Term Sheet for rental of 1 MW unit to JMC
== 0029-18_exhibit_18 JM Products reports of power used
== 0029-19_exhibit_19 Rossi email Jul 13, 2015 refusing access to IH engineer
== 0029-20_exhibit_20 Original was a large pdf, this is a reduced size jpg of the Bass business card
== 0029-21_exhibit_21 Fabiani emails (2016) 2/23, 4/6, and 4/14, replies of Joseph Murray, 4/26, 5/16
== 0029-22_exhibit_22 Cook and Rossi paper
== 0029-23_exhibit_23 Jones Day (IH) letter to Annesser (Rossi) re patent assignment. 2/7/2016
== 0029-24_exhibit_24 Rossi blog posts Aug 18, 2015 – Sep 13, 2015 (duplicates Exhibit 4?)
== 0029-25_exhibit_25 Rossi blog post April 14, 2016, claiming new sales to Customer of 1-year test.
== 0030-26_exhibit_26 photos of warehouse and customer area
== 0050-27_exhibit_27 IPH assignment from IH
== 124.29_Fabiani_contract_renewal Exhibit 28
== 124.30_Fabiani_email_re_contract Exhibit 29
02/06/2017 0133.0_IH_Notice_of_Hearing 2/9 re Fabiani deposition and discovery
02/07/2017 0134.0 Minute Entry (no doc avail)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 2/7/2017. Total time in court: 1 hour(s) : 10 minutes. Attorney Appearance(s): Erika Stephanie Handelson, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, Christopher Perre. (Digital 10:02:47/10:12:39) (cg1)
02/07/2017 0135.0_Notice_of_hearing 2/9 Rossi, re Protective Order re 3rd P depositions.
02/09/2017 0136.0_Minute_Entry (no doc avail)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 2/9/2017. Total time in court: 1 hour and 25 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Christopher Martin Lomax, Rodolfo Nunez, John William Annesser, II. (Digital 10:08:10) (cg1)
02/14/2017 0137.0_Hearing_Notice Rossi objection to privilege and demand for insurance info, 2/23
02/14/2017 0138.0_IH_Motion_-_Protective_order re expected Rossi motion
== 0138.1_Mazzarino_Affidavit covering founding of IH and relationship with IH
== 0138.2_Hearing_transcript hearing 2/7 over this issue
02/16/2017 0139.0_Order-motion_for_protective_order (IH motion Denied)
02/16/2017 0140.0_Rossi_Answer amended per IH amended countercomplaint
02/16/2017 0141.0_Johnson_and_Bass_Answer
02/16/2017 0142.0_Order_re_USQL deadline 2/21 for Fabiani to Answer or show cause
02/16/2017 0143.0_IH_Memo_re_privilege for Deep River Ventures communications with counsel
02/20/2017 0144.0_Rossi_hearing_notice  2/23 re objections to privilege
02/21/2017 0145.0_Discovery_Order misc. including Rossi screen names order
02/21/2017 0146.0_Discovery_Order various including Boeing deposition
02/21/2017 0147.0 Discovery Hearing (no document)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 2/21/2017. Total time in court: 15 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, D. Porpoise Evans, Christopher Perre (Digital 10:50:40) (cg1)
02/21/2017 0148.0_Discovery_Order re deposition in Dominican Republic, site inspection
02/21/2017 0149.0_USQL_Answer (Fabiani)
02/21/2017 0150.0_IH_Hearing_Notice 2/23 re bank subpoenas, Rossi/JMP non-response
02/21/2017 0151.0_Rossi_Memo_re_138 Mazzarino privilege claim
02/23/2017 0152.0_Discovery_Order_re_privilege (Hearing 2/23)
02/23/2017 0153.0_Rossi_memo_opposing_143 re Deep River Ventures privilege
02/23/2017 0154.0 Discovery Hearing (no document)
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 2/23/2017. Total time in court: 1 hour(s). Attorney Appearance(s): Erika Stephanie Handelson, Christopher Martin Lomax, D. Porpoise Evans and Christopher Perre. (Digital 15:04:01/16:12:01) (cg1)
02/23/2017 0155.0 Discovery Transcript (no document yet)
TRANSCRIPT of Discovery Hearing Proceedings held on 2/9/17 before Magistrate Judge John J. O’Sullivan, 1-50 pages, Court Reporter: Bonnie J. Lewis, 305-523-5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/16/2017. Redacted Transcript Deadline set for 3/27/2017. Release of Transcript Restriction set for 5/24/2017.(hh)
02/23/2017 0156.0 Discovery Transcript (no document yet) see 0156.0 Discovery transcript
TRANSCRIPT of Discovery Hearing Proceedings held on 2/7/17 before Magistrate Judge John J. O’Sullivan, 1-55 pages, Court Reporter: Bonnie J. Lewis, 305-523-5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/16/2017. Redacted Transcript Deadline set for 3/27/2017. Release of Transcript Restriction set for 5/24/2017.(hh)
02/23/2017 0156.0 Discovery transcript (from 283-01, not from release on PACER)
02/24/2017 0157.0_IH_reply_to_151 (Rossi opposition to Mazzarino privilege claim)
03/02/2017 0158.0_ IH_reply_to_153 Rossi opposition to DRV (Dewey Weaver) privilege claim.
== 0158.1_Dewey_Weaver_declaration (on behalf of DRV)
03/08/2017 0159.0_Rossi_Disc_hearing_notice March 9, re 02/23/2017 ruling and IH objections
03/08/2017 0160.0_Rossi_Motion_to_seal Motion for Sanctions (DE 108? or new Motion?)
== 0160.1_Proposed_order
03/08/2017? 0161.0 Struck Rossi “Motion for Sanctions for Bad Faith Litigation Conduct,” see DE 163
== (Assumed exhibit filings) Struck. See DE 167, possibly the same.
03/09/2017 0162.0_IH_Disc_hearing_notice
03/09/2017 0163.0_Order_denying_160_striking_161
03/09/2017 0164.0 (no document) CLERK’S NOTICE of Compliance pursuant to 163 Order (nc)
03/09/2017 0165.0 (no document) Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 3/9/2017. (Digital 14:00:28) (cg1)
03/09/2017 0166.0- Order hearing on 138 and 143 protective order set for 3/14/2017.
03/09/2017 0167.0_Rossi_Motion_for_sanctions
== 0167.1_proposed_order
== 0167.2_Exhibit_1 Email from Darden to Sloan, 3/7/2014 (OCR’d version)
== 0167.3_Exhibit_2 Lugano report, scan filed, link here is to original
== 0167.4_Exhibit_3 Discovery Hearing transcript 1/10/2017
== 0167.5_Exhibit_4 Declaration of Levi
== 0167.6_Exhibit_5 Email from Darden to Zalli and Uzi
== 0167.7_Exhibit_6 Email Weaver -> Bo Hoisted -> Levi -> Rossi
== 0167.8_Exhibit_7 Deposition of Dewey Weaver
03/13/2017 0168.0_IH_Hearing_Notice 3/14 adding JMP bank record issue
03/14/2017 0169.0 (no document) PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 3/14/2017. Total time in court: 1 hour(s). Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, John William Annesser, II and Robert Bernstein. (Digital 15:01:04) (cg1)
03/14/2017 0170.0_Discovery_Order
03/15/2017 0171.0 Hearing transcript (doc not available yet)
TRANSCRIPT of Discovery Hearing Proceedings held on 3/9/17 before Magistrate Judge John J. O’Sullivan, 1-48 pages, Court Reporter: Bonnie J. Lewis, 305-523-5635. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/4/2017. Redacted Transcript Deadline set for 4/14/2017. Release of Transcript Restriction set for 6/12/2017. (Attachments: # 1 Designation Access Form)(hh)
03/15/2017 0170.0 Hearing transcript (from 283-02, not from formal release)
03/15/2017 0172.0_IH_notice per Magistrate request in hearing 3/14.
== 0172.1_Proposed_order (covers more issues than DE 170)
03/16/2017 0173.0_Discovery_Order as proposed DE 172.1.
03/16/2017 0174.0_Rossi_Motion_to_seal
== 0174.1_Proposed order re Plaintiffs’ Motion for Sanctions against Defendants, Cherokee Investment Partners and IPH International, B.V. for Failure to Comply with Rule 30(b)(6).
03/16/2017 0175.0 (Presumed, no document) Plaintiffs’ Motion for Sanctions against Defendants, Cherokee Investment Partners and IPH International, B.V. for Failure to Comply with Rule 30(b)(6)
03/16/2017 0176.0 Order (no document) 10:17 PM ORDER denying 174 Motion to Seal. Signed by Judge Cecilia M. Altonaga (CMA)
03/16/2017 0177.0 Clerk’s Notice, presumably about removal of DE 175 per denied seal.
03/17/2017 0179.0_Rossi_Motion_for_sanctions
== 0179.1_Exhibit_1 Rossi Notice of Taking Videotaped Depositions, lists issues
== 0179.2_Exhibit_2 Cherokee Objections to Plaintiff’s notice
== 0179.3_Exhibit_3 Amended notice of taking videotaped depositions, adds new issues
== 0179.4_Exhibit_4 Industrial Heat Objections to Notice
== 0179.5_Exhibit_5 IPH Objections to Notice
== 0179.6_Exhibit_6 Deposition of Vaughn
== 0179.7_Exhibit_7 Deposition of Fogelman for IPH
== 0179.8_Exhibit_8 Deposition of Fogelman for Cherokee
03/20/2017 180.0_Order_denying_179 as improper
03/20/2017 181.0_IH_notice_of_hearing re JMP discovery
03/20/2017 0182.0_Rossi_Notice of hearing re subject of 179 March 23, see error correction in 185
03/20/2017 0183.0_IH_appeal re DRV attorney-client privilege, replaced by 184.
== 0183.1_Exhibit_A Meyers Bigel representation agreement
== 0183.2_Exhibit_B IH-DRV agreement
== 0183.3_Exhibit_C February 7 hearing excerpt
== 0183.4_Exhibit_D Declaration of Dewey Weaver re NK Patent Law
== 0183.5_Exhibit_E February 9 hearing excerpt (obsolete)
03/20/2017 0184.0_IH_amended_appeal re DRV attorney-client privilege
== Exhibits the same as for 183.1 – 183.4 but 183.5 was changed
== 0184.5_Exhibit_E February 9 hearing excerpt
03/20/2017 0185.0_IH_notice_of_hearing Thursday March 23, not “Tuesday.”
03/20/2017 0186.0_Rossi_request for more time (3/21 to 3/22) and more pages
== 0186.1_Proposed_Order
03/20/2017 0187.0_Joint_Motion_to_file_under_seal
== 0187.1_Proposed_Order
03/20/2017 0188.0_IH_Motion_to_exceed_page_limits for Motion for Summary Judgment & replies
== 0188.1_Proposed_Order
03/21/2017 0189.0_IH_Motion to exceed_page_limits for MSJ statment of material facts
== 0189.1_Proposed Order
03/21/2017 0190.0 Notice of Hearing (no document)
PAPERLESS NOTICE of Hearing on [184] Defendant’s APPEAL of Magistrate Judge [183] Defendant’s APPEAL of Magistrate Judge to District Court to District Court, [183] Defendant’s APPEAL of Magistrate Judge to District Court: Motion Hearing set for 3/24/2017 09:30 AM in Miami Division before Judge Cecilia M. Altonaga. (ps1)
03/21/2017 0191.0 Clerks Notice to Filer re 183 Defendant’s APPEAL of Magistrate Judge to District Court . Document Not Linked; ERROR − The filed document was not linked to the related docket entry. The correction was made by the Clerk. It is not necessary to refile this document. (lk)
03/21/2017  0192.0_Order re 183-184, 186-189, motions for time, for pages, for seal, and appeal.
03/22/2017 0193.0_IH_Amended_Hearing_notice
03/22/2017 0194.0_IH_Motion_for_Sanctions re spoliation, Rossi et al
== 0194.01_Exhibit 1 Expert report of Rick A. Smith, P.E.
== 0194.02_Exhibit_2 Deposition of T. Barker Dameron (IH engineer)
== 0194.03_Exhibit_3 Deposition of Leonardo Corp by Rossi + Darden-Penon emails
== 0194.04_Exhibit_4 Discussion of “megawatt” from NRC.
== 0194.05_Exhibit 5 Expert disclosure of Joseph A. Murray (not the disclosure, a description.)
== 0194.06_Exhibit_6 Video Deposition of Wong (Rossi expert)
== 0194.07_Exhibit_7 Video Deposition of Rossi
== 0194.08_Exhibit_8 Video Deposition of JM Products by Rossi
== 0194.09_Exhibit_9 Deposition of Fabio Penon
== 0194.10_Exhibit_10 Deposition of Fulvio Fabiani (apparently)
== 0194.11_Exhibit_11 3.8 MB file USQL consulting agreement
== 0194.12_Exhibit_12 December 4, 2015 email Pace to Annesser
== 0194.13_Exhibit_13 emails Rossi to IH, August 3, 2015, Vaughn to Rossi and Johnson, December 4, 2015, Pace to Annesser, December 9, 2015, Johnson reply, and Pace to Johnson, February 22, 2016.
== 0194.14_Exhibit_14 email Annesser to Pace, December 14, 2015
== 0194.15_Exhibit_15 Declaration of J.T. Vaughn
== 0194.16_Exhibit_16 spreadsheet maintained by Fabiani
03/22/2017 0195.0_Rossi_Motion_to_seal (denied 208)
== 0195.01_Proposed_order
03/22/2017 0196.0 (Presumed deleted) Rossi Motion for Partial Summary Judgment and (2) Daubert Motion to Strike and Exclude Defendants’ Experts with Attached Exhibits
03/22/2017 0197.0_IH_Motion_to_exclude_Rossi_expert
== 0197.01_Exhibit_1 Expert disclosure of Kaifui V. Wong
== 0197.02_Exhibit_2 Video deposition of Wong
== 0197.03_Exhibit_3 7.7 MB file Penon report
03/22/2017 0198.0 (temporary seal?)
03/22/2017 0199.0_JMP_etc_Motion_to_seal [denied 209] 03/22/2017 0200.0 (deleted?)
03/22/2017 0201.0_IH_Motion_to_seal [denied 210] == 0201.1_Proposed_order
03/22/2017 0202.0 (sealed and deleted?)
03/22/2017 0203.0_IH_Motion_for_Summary_Judgment
03/22/2017 0204.0 (sealed?)
03/22/2017 0205.0 (sealed?)
03/22/2017 0206.0 (sealed?)
03/23/2017 0207.0_Defendants_support_of_MSJ (“Statement of Material Facts”)
== 0207.01_Exhibit_1 10.5 MB file License Agreement
== 0207.02_Exhibit 2 Deposition of Rossi
== 0207.03_ Exhibit_3 email Rossi to Darden and Vaughn, April 23, 2013.
== 0207.04_Exhibit_4 Rossi to Darden and Vaughn, April 24, 2013.
== 0207.05_Exhibit_5 1st Amendment to License Agreement
== 0207.06_Exhibit_6 Declaration of Thomas F. Darden
== 0207.07_Exhibit_7 Assignment of License Agreement to IPH
== 0207.08_Exhibit_8 Rossi certification re representations in Agreement
== 0207.09_Exhibit_9 7.3 MB file Deposition of Darden
== 0207.10_Exhibit_10 Deposition of Penon
== 0207.11_Exhibit_11 email Penon to Darden Validation Test 2013
== 0207.12_Exhibit_12 Deposition of Cassarino (Ampenergo)
== 0207.13_Exhibit_13 $3,219,950 paid, IH to Ampenergo, 2013.
== 0207.14_Exhibit_14 formal Admissions of Rossi
== 0207.15_Exhibit_15 2nd Amendment to License Agreement
== 0207.16_Exhibit_16 Contribution Agreement, IH & Ampenergo
== 0207.17_Exhibit_17 Deposition of Leonardo, rep by Rossi
== 0207.18_Exhibit_18 email Cassarino, Rossi, Darden, Boeing
== 0207.19_Exhibit_19 deposition of Industrial Heat, rep by Vaughn
== 0207.20_Exhibit_20 Six Cylinder Unit (photos)
== 0207.21_Exhibit_21 Rossi Deposition of Vaughn
== 0207.22_Exhibit_22 (Filed under seal) see 247-01 – Exhibit 22
== 0207.23_Exhibit_23 (blank) see 251-01 – Exhibit 23  Declaration of Vaughn
== 0207.24_Exhibit_24 Rossi responses to interrog.
== 0207.25_Exhibit_25 Rossi emails to supporters
== 0207.26_Exhibit_26 IH responses to interrog.
== 0207.27_Exhibit_27 Pace to Annesser 2/17/2016 re patent assignment
== 0207.28_Exhibit_28 Declaration of Pace re Exhibit 27
== 0207.29_Exhibit_29 IPH reponses to Rossi interrog.
== 0207.30_Exhibit_30 (filed under seal) see == 247-02 – Exhibit 30
== 0207.31_Exhibit_31 (filed under seal) see 247-03 – Exhibit 31
== 0207.32_Exhibit_32 (filed under seal) see 247-04 – Exhibit 32
== 0207.33_Exhibit_33 (filed under seal) see 247-05 – Exhibit 33
== 0207.34_Exhibit_34 emails Rossi (prev exhibit 16) re Doral proposal
== 0207.35_Exhibit_35 email Rossi/Darden, re Ampenergo, IH Memo to investors
== 0207.36_Exhibit_36 Deposition of JMP, represented by Rossi
== 0207.37_Exhibit_37 Deposition of Johnson
== 0207.38_Exhibit_38 JMC/JMP corporate papers
== 0207.39_Exhibit_39 Darden/Rossi negotiations re Test Sheet
== 0207.40_Exhibit_40 Darden/Rossi re JM not wanting to disclose identity
== 0207.41_Exhibit_41 Rossi describes interactions with the customer “in London.”
== 0207.42_Exhibit_42 marked up Term Sheet
== 0207.43_Exhibit_43 Johnson provides OFAC declaration of ownership to IH
== 0207.44_Exhibit_44 Rossi March 2015 RFP for Johnson Matthey for 10 kg platinum sponge
== 0207.45_Exhibit_45 Term Sheet (prev exhibit 17)
== 0207.46_Exhibit_46 Rossi email to Johnson about rental of Doral and eviction
== 0207.47_Exhibit_47 various Rossi emails
== 0207.48_Exhibit_48 Deposition of Bass
== 0207.49_Exhibit_49 Rossi to Darden 2/19/2015
== 0207.50_Exhibit_50 Rossi – Johnson re power reports to IH & “Johnson Matthey”
== 0207.51_Exhibit_51 Bass business card
== 0207.52_Exhibit_52 deposition of James Stokes, Florida Department of Health
== 0207.53_Exhibit_53 Rossi 9/2014 to Johnson
== 0207.54_Exhibit_54 Rossi to Johnson re address of JMP
== 0207.55_Exhibit_55 Penon data
== 0207.56_Exhibit_56 deposition of Fabiani
== 0207.57_Exhibit_57 deposition of Murray (for full copy see 0215.03)
== 0207.58_Exhibit_58 Penon all reports as of February 23, 2016
== 0207.59_Exhibit_59 Florida Power & Light data
== 0207.60_Exhibit_60 deposition of T. Barker Dameron
== 0207.61_Exhibit_61 deposition of Barry West
== 0207.62_Exhibit_62 Rossi instructions to Bass, March 24. 2015, and February 15, 2016
== 0207.63_Exhibit_63 Rossi to Vaughn refusing entry to Murray 7/13/2015 (former Exhibit 19)
== 0207.64_Exhibit_64 12/9/2015, Vaughn to Rossi/Johnson requesting visit, Johnson response
== 0207.65_Exhibit_65 Queries for Penon by Murray, former Exhibit 5.
== 0207.66_Exhibit_66 payments from IH to USQL
== 0207.67_Exhibit_67 3.9 MB file IH/USQL Agreement
== 0207.68_Exhibit_68 4.2 MB file  Vaughn/Fabiani mails re 2014 Agreement
== 0207.69_Exhibit_69 11.3 MB file IH/USQL Agreement 9/1/2015 to3/31/2016
== 0207.70_Exhibit_70 3.5 MB file Fabiani to Vaughn 4/2016, Murray to Fabiani 5/2016
== 0207.71_Exhibit_71 Murray to Fabiani 3/22/2016 and 4/1/2016
== 0207.72_Exhibit_72 Murray to Fabiani 4/26/2016 and 5/16/2016
== 0207.73_Exhibit_73 Mail from Fabiani to Murray 4/25/2016
== 0207.74_Exhibit_74 Fabiani to IH 4/6/2016
== 0207.75_Exhibit_75 corporate confirmation Leonardo New Hampshire active 3/21/2017
03/23/2016 0208.0 no document ORDER denying [195] Motion to Seal. Signed by Judge Cecilia M. Altonaga (ps1)
03/23/2016 0209.0 no document ORDER denying [199] Motion. Signed by Judge Cecilia M. Altonaga (ps1)
03/23/2016 0210.0 no document ORDER denying [201] Motion to Seal. Signed by Judge Cecilia M. Altonaga (ps1)
03/23/2016 0211.0 no document CLERK’S NOTICE of Compliance pursuant to [208] Order Denying [195] Motion to Seal (nc)
03/23/2016 0212.0 no document CLERK’S NOTICE of Compliance pursuant to [209] Order Denying [199] Motion to Seal (nc)
03/23/2016 0213.0 no document CLERK’S NOTICE of Compliance pursuant to [210] Order Denying [201] Motion to Seal (nc)
03/23/2016 0214.0_Rossi_Motion_for_Partial_Summary_Judgment
== 0214.01 Exhibit_1 Affidavit of Andrea Rossi
== 0214.02 Exhibit_2 Deposition of Fogelman for Cherokee
== 0214.03 Exhibit 2A Cherokee web page
== 0214.04 Exhibit 3 Deposition of Vaughn for Industrial Heat
== 0214.05 Exhibit 4 3.6 MB file License Agreement and 2013 wire transfer
== 0214.06 Exhibit 5 First Amendment to License Agreement
== 0214.07 Exhibit 6 Assignment to IPH
== 0214.08 Exhibit 7 2.1 MB file Second Amendment to License Agreement
== 0214.09 Exhibit 8 Amended Assignment and Assumption to IPH
== 0214.10 Exhibit 9 Deposition of Darden
== 0214.11 Exhibit 10 Rossi email re Validation Test
== 0214.12 Exhibit 11 Dewey Weaver critique of Validation Test protocol
== 0214.13 Exhibit 12 Penon report on 2013 Validation Test
== 0214.14 Exhibit 13 Deposition of Vaughn
== 0214.15 Exhibit 14 Deposition of Murray (see also full deposition at 215.03)
== 0214.16 Exhibit 15 Validation Agreement re 2013 transfer of payment and IP
== 0214.17 Exhibit 16 Validation verification notice
== 0214.18 Exhibit 17 IPH deposition by Fogelman
== 0214.19 Exhibit 18 IH response to Rossi Interrogatory 2
== 0214.20 Exhibit 19 email Weaver to Vaughn, and Vaughn to Darden re 2013 test
== 0214.21 Exhibit 20 deposition of T. Barker Dameron
== 0214.22 Exhibit 21 Vaughn to Darden 2013 re activities
== 0214.23 Exhibit 22 7.0 MB file IH business plan and 2014 memo
== 0214.24 Exhibit 23 Rossi to Darden about Validation test. (duplicates Ex. 11?)
== 0214.25 Exhibit 24 Vaughn, 2012-2014 timeline
== 0214.26 Exhibit 25 Rossi/Penon “test plan.” 2/10/2015
== 0214.27 Exhibit 26 Rossi to Darden 2/19/2015
== 0214.28 Exhibit 27 Deposition of Smith (see full copy at 215.04)
== 0214.29 Exhibit 28 12/2/2013 Vaughn to Weaver experimental report
== 0214.30 Exhibit 29 2/19/2015 Rossi to McLaughlin (APCO)
== 0214.31 Exhibit 30 2/2/2015 Joe Pike to Rossi
== 0214.32 Exhibit 31 2/21/2015 Pike to Rossi
== 0214.33 Exhibit 32 2.1 MB file draft Penon Report
== 0214.34 Exhibit 33 IH responses to Rossi interrogatories 1
== 0214.35 Exhibit 34 April 2015 Darden Memo to Lamacraft (Woodford)
== 0214.36 Exhibit 35 Lamacraft March 4, 2016 on IH press release
== 0214.37 Exhibit 36 Final Penon report
== 0214.38 Exhibit 37 Vaughn re Rossi/Cook paper
== 0214.39 Exhibit 38 Darden to Rossi re Rossi/Cook paper
== 0214.40 Exhibit 39 Darden to Rossi congratulating him on Rossi/Cook paper
== 0214.41 Exhibit 40 Rossi to Vaughn explaining that his attorney being CEO of JMP is a “guarantee.”
== 0214.42 Exhibit 41 Darden to Pike raising “picky issues,” 3/23/2015
03/23/2017 0215.0_Rossi_motion_to_strike expert testimony of Murray and Smith
== 0215.01_Exhibit_A Expert Disclosure of Joseph A. Murray
== 0215.02_Exhibit_B Expert Report of Rick A. Smith, P.E.
== 0215.03_Exhibit_C 5.6 MB file Full Deposition of Murray
== 0215.04_Exhibit_D 5.9 MB file Full Deposition of Smith
== 0215.05_Exhibit_E 2.6 MB file License Agreement
== 0215.06_Exhibit_F 2013 mails Rossi – Vaughn re Validation Test and ERV
03/23/2007 0216.0_Order denying Motions for Sanctions 167 and 194
03/23/2007 0217.0_Rossi_Appeal_of_Magistrate_Ruling re privilege
3/24/2017 0218.0_Order by Magistrate, redeposition of Cherokee and IPH, awarding costs to Rossi
03/24/2017 0219.0 (no document) PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Miscellaneous Hearing held on 3/24/2017. Total time in court: 1 hour(s) : 11 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, John William Annesser, II, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
03/24/2017 0220.0 (no document) NOTICE of Hearing on [217] Plaintiff’s APPEAL of Magistrate Judge to District Court On Magistrate Judge O’Sullivan’s Ruling that document IH-00079768 Is A Privileged Communication: Hearing set for 2/28/2017 02:00 PM in Miami Division before Judge Cecilia M. Altonaga. (ps1)
03/24/2017 0221.0 (no document) CORRECTED PAPERLESS NOTICE of Hearing on [217] Plaintiff’s APPEAL of Magistrate Judge to District Court On Magistrate Judge O’Sullivan’s Ruling that document IH-00079768 Is A Privileged Communication: Hearing set for 3/28/2017 02:00 PM in Miami Division before Judge Cecilia M. Altonaga. (ps1)
03/24/2017 0222.0 (no document) clerk error?, see 223
03/24/2017 0223.0 (no document) Clerks Notice to Filer re [207] Supplemental MOTION for Summary Judgment [Statement of Material Facts]. Wrong Event Selected; ERROR – The Filer selected the wrong event. The document was re-docketed by the Clerk, see [de#222]. It is not necessary to refile this document. (lk)
03/24/2017 0224.0 (no document) TRANSCRIPT of Motion Hearing held on 3/14/2017 before Magistrate Judge John J. O’Sullivan, 1-55 pages, Court Reporter: Diane Miller, 561-514-3728 / Diane_Miller@flsd.uscourts.gov. (Digital 15:01:04.) Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/14/2017. Redacted Transcript Dead line set for 4/24/2017. Release of Transcript Restriction set for 6/22/2017. (dmr)
03/24/2017 0225.0_Order per Hearing [219], IH Appeal [184] granted. (re DRV atty-client privilege)
03/25/2017 0226.0_Rossi_Supplement_to_appeal [217] of Magistrate ruling re IH privileged document
== 0226.1_Attachment_1 Darden to Zalli and Uzi, previous 167.6
== 0226.2_Attachment_2 Motion for sanctions, previous 167.0
== 0226.3_Attachment_3 Deposition of Thomas Darden re lack of Ampenergo signature & GPT
== 0226.4_Attachment_4 transcript of Magistrate hearing 2/23/2017
== 0226.5_Attachment_5 transcript of Magistrate hearing 3/9/2017
03/25/2017 0227.0 (no document or description available, date assumed for sorting purposes)
03/27/2017 0228.0_IH_filing_notice exhibits for March 28 hearing (Rossi appeal of Magistrate’s order)
== 0228.1_Exhibit_A Darden testimony
== 0228.2_Exhibit_B Declaration of Uzi Shaya re Levi Declaration
== 0228.3_Exhibit_C copy of Zalli Jaffe’s biography
03/27/2017 0229.0 (no document) TRANSCRIPT of discovery hearing held on 2 23-2017 before Magistrate Judge John J. O’Sullivan, 1-29 pages, Court Reporter: Dawn Savino, 305-523-5598 / Dawn_Savino@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/17/2017. Redacted Transcript Deadline set for 4/27/2017. Release of Transcript Restriction set for 6/26/2017. (dwh)
03/28/2017 0230.0 (no document) PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Miscellaneous Hearing held on 3/28/2017. Total time in court: 36 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
03/28/2017 0231.0_Order per ECF 230, denying 217, Rossi appeal of Magistrate ruling on privilege
03/29/2017 0232.0_Rossi_hearing_notice 4/20/2017, re motions for sanctions and remand of privilege finding
3/30/2017 0233.0_Rossi_response_to_IH_Motion_to_Exclude Rossi expert Wong (DE 197)
== 0233.1_Exhibit_A Expert disclosure of Murray (duplicates Rossi 0215.01_Exhibit_A)
== 0233.2_Exhibit_B Expert report of Smith (duplicates Rossi 0215.02_Exhibit_B)
== 0233.3_Exhibit_C Expert disclosure of Wong (duplicates IH 0197.01_Exhibit_1)
== 0233.4_Exhibit_D Deposition of Rick A. Smith (excerpt from Rossi 0215.04_Exhibit_D)
== 0233.5_Exhibit_E Deposition of Murray (excerpt from Rossi 0215.03_Exhibit_C)
3/31/2017 0234.0 TRANSCRIPT of Discovery Hearing Proceedings held on 3/23/2017 before Magistrate Judge John J. O’Sullivan, 1-100 pages, Court Reporter: Bonnie Joy Lewis, 954-985-8875. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/21/2017. Redacted Transcript Deadline set for 5/1/2017. Release of Transcript Restriction set for 6/29/2017.(apz)

Files 2017 April-June

04/03/2017 0235.0_IH_Opposition_to_Rossi_215 Motion to Strike and Exclude IH experts
== 0235.01_Exhibit_1 Smith expert report
== 0235.02_Exhibit_2 about Murray expert report
== 0235.03_Exhibit_3 IH request for access to Doral premises
== 0235.04_Exhibit_4 negotiations re access 3 MB file.
== 0235.05_Exhibit_5 Declaration of Smith re results of access to Doral
== 0235.06_Exhibit_6 Deposition of Rossi
== 0235.07_Exhibit_7 Deposition of Rossi
== 0235.08_Exhibit_8 Deposition of JMP represented by Rossi
== 0235.09_Exhibit_9 Murray — Supplemental documents
== 0235.10_Exhibit_10 Smith supplemental report 2 MB file.
== 0235.11_Exhibit_11 Composite: Murray/Darden/Fabiani/Vaughn/etc., July 2015 concerns 3 MB file.
== 0235.12_Exhibit_12 Disclosures of parties
== 0235.13_Exhibit_13 Deposition of Smith
== 0235.14_Exhibit_14 Deposition of Penon
== 0235.15_Exhibit_15 Deposition of T. Barker Dameron
04/04/2017 0236.0_IH_Opp_to_SOMF_214_Rossi MSJ
== 236-01 – Exhibit 1 Deposition for Cherokee by Fogleman
== 236-02 – Exhibit 2 Declaration of Darden
== 236-03 – Exhibit 3 Deposition of Darden 7 MB file
== 236-04 – Exhibit 4 Deposition for Ampenergo by Cassarino
== 236-05 – Exhibit 5 Deposition for Industrial Heat by Vaughn
== 236-06 – Exhibit 6 Deposition of Vaughn
== 236-07 – Exhibit 7 Notes from telephone conversations, Cassarino (Ampenergo)
== 236-08 – Exhibit 8 Deposition for IPH by Fogleman 4.9 MB file
== 236-09 – Exhibit 9 emails Darden and Rossi June 2015
== 236-10 – Exhibit 10 Term Sheet (signed Rossi, Vaughn, Johnson)
== 236-11 – Exhibit 11 IPH resp and obj to 1st Rossi interrog
== 236-12 – Exhibit 12 Rossi JONP (blog) posts
== 236-13 – Exhibit 13 Deposition for Leonardo by Rossi
== 236-14 – Exhibit 14 Leonardo Fed Inc tax returns 2012, 2013 15.9 MB file
== 236-15 – Exhibit 15 Deposition of Rossi
== 236-16 – Exhibit 16 Email Vaughn, Rossi 2013
== 236-17 – Exhibit 17 Deposition of Penon
== 236-18 – Exhibit 18 Email Penon to IH, first eval, May 2013
== 236-19 – Exhibit 19 Email Rossi – IH, 2012
== 236-20 – Exhibit 20 Agreement – Ampenergo and IH 2013 modifying 2012 Agmt
== 236-21 – Exhibit 21 Email Rossi, Vaughn, Cassarino, Boeing, 2014
== 236-22 – Exhibit 22 6 Cylinder Unit photos
== 236-23 – Exhibit 23 Rossi response to 1st IH Request for Admissions
== 236-24 – Exhibit 24 IH responses and obj to 2nd Rossi interrog
== 236-25 – Exhibit 25 Feb. 2016 Letter Pace to Annesser re license assignment 3.8 MB file
== 236-26 – Exhibit 26 Declaration of Pace, IH counsel, re 236-25
== 236-27 – Exhibit 27 IH journal entries payments to Rossi
== 236-28 – Exhibit 28 Rossi – Darden 2014 emails
== 236-29 – Exhibit 29 email July 2014 Darden-Cassarino-Vaughn-Mazzarino-Rossi
== 236-30 – Exhibit 30 deposition of Johnson
== 236-31 – Exhibit 31 Rossi 2014 emails to Darden and Vaughn re customer identity
== 236-32 – Exhibit 32 2014 emails Johnson-Vaughn, including signed OFAC declaration
== 236-33 – Exhibit 33 JMP deposition by Rossi
== 236-34 – Exhibit 34 deposition of Bass
== 236-35 – Exhibit 35 Rossi instructions to Johnson secretary
== 236-36 – Exhibit 36 deposition of Stokes
== 236-37 – Exhibit 37 Leonardo sublease Doral to JMP
== 236-38 – Exhibit 38 2015 emails Rossi-IH-Mazzarino et al-Johnson-Cassarino et al-Bass
== 236-39 – Exhibit 39 February 2015 emails Rossi-IH-J&D Pike
== 236-40 – Exhibit 40 Johnson to IH invoice requests – email Rossi – Johnson (Sauer)
== 236-41 – Exhibit 41 Bass business card as Director of Engineering for JMP
== 236-42 – Exhibit 42 Rossi instructions to Johnson re JMP address and invoice request
== 236-43 – Exhibit 43 Plant data – Penon report – handwritten temperature record 3.3 MB file
== 236-44 – Exhibit 44 deposition of Fabiani
== 236-45 – Exhibit 45 deposition of Murray
== 236-46 – Exhibit 46 email Feb 2016 Penon to IH – Expert Disclosure of Murray 2.5 MB file
== 236-47 – Exhibit 47 Florida Power & Light subpoena and data 3.6 MB file
== 236-48 – Exhibit 48 deposition of Dameron
== 236-49 – Exhibit 49 deposition of West
== 236-50 – Exhibit 50 emails Feb-Mar 2015 Rossi-Bass
== 236-51 – Exhibit 51 emails July 2015 Rossi-Vaughn re Murray visit etc
== 236-52 – Exhibit 52 2015 emails IH-Rossi-Johnson re proposed December plant visit
== 236-53 – Exhibit 53 Murray queries for Penon, original exhibit 5
== 236-54 – Exhibit 54 report of IH payments to USQL (Fabiani)
== 236-55 – Exhibit 55 certificate of good standing, Leonardo New Hampshire
04/04/2017 0237.0_IH_Opp_to_214_Rossi_MSJ
04/04/2017 0238.0_Rossi_Resp_to_203_207_IH_ MSJ exhibits continue from 214
== 238-01 – Exhibit 43 Incorporation Leonardo Florida 2010 1.9 MB file
== 238-02 – Exhibit 44 2013 email Rossi-IH re Validation Test
== 238-03 – Exhibit 45 deposition of Rossi
== 238-04 – Exhibit 46 affidavit of Rossi supporting opposition to IH MSJ
== 238-05 – Exhibit 47 deposition for IPH by Fogleman
== 238-06 – Exhibit 48 deposition of Vaughn
== 238-07 – Exhibit 49 2013 email Vaughn-Rossi re closing on $10 million payment
== 238-08 – Exhibit 50 deposition of Darden
== 238-09 – Exhibit 51 2014 radiation safety email to Darden
== 238-10 – Exhibit 52 deposition for Industrial Heat by Vaughn
== 238-11 – Exhibit 53 2014 emails Rossi-Darden re customer for plant power
== 238-12 – Exhibit 54 2013 emails Rossi-IH re Validation Test
== 238-13 – Exhibit 55 deposition for Ampenergo by Cassarino
== 238-14 – Exhibit 56 emails 2014 Rossi-IH re customer plan
== 238-15 – Exhibit 57 deposition of Johnson
== 238-16 – Exhibit 58 June 2014 email Rossi to IH and Joe Pike
== 238-17 – Exhibit 59 deposition for Leonardo by Rossi
== 238-18 – Exhibit 60 Term Sheet revision display
== 238-19 – Exhibit 61 Darden July 2014 email re Term Sheet
== 238-20 – Exhibit 62 Johnson OFAC declaration
== 238-21 – Exhibit 63 deposition of Barry West
== 238-22 – Exhibit 64 deposition for JMP by Rossi
== 238-23 – Exhibit 65 deposition of Penon
== 238-24 – Exhibit 66 expert disclosure of Wong
== 238-25 – Exhibit 67 test (by IH? 2014?) showing COP 4 2.1 MB file
== 238-26 – Exhibit 68 deposition of Mazzarino
== 238-27 – Exhibit 69 2013 Vaughn to Darden re 6 cylinder unit
== 238-28 – Exhibit 70 2014 IH internal mails re testing
== 238-29 – Exhibit 71 supplement to IH responses and obj to 1st Rossi interrog
04/05/2017 0239.0_3pDef_Motion_for_leave_to_file due to inadvertence, IH not opposed
04/05/2017 0240.0_Rossi_appeal_for_sanctions over alleged 30(b)(6) failure to instruct witness
04/05/2017 0241.0_Order_granting_0239 allowing 242
04/05/2017 0242.0_3pDef_Motion_for_Summary_Judgment (Partial) see
== 242.1 Exhibit A deposition of Darden
== 242.2 Exhibit B deposition for IH by Vaughn
== 242.3 Exhibit C deposition of Mazzarino
== 242.4 Exhibit D deposition of Barry West
== 242.5 Exhibit E deposition of Bass 3.1 MB 
== 242.6 Exhibit F deposition of Vaughn
== 242.7 Exhibit G deposition of Murray
== 242.8 Exhibit H deposition of Penon
== 242.9 Exhibit I  deposition of Dameron
== 242.10 Exhibit J deposition of Johnson
== 242.11 Exhibit K airline record for Johnson from Rossi 7/28/2014
== 242.12 Exhibit L emails Sauer-Bass 9/2014
== 242.13 Exhibit M affidavit of Rossi re Fabiani and Bass
== 242.14 Exhibit N IH resp to 1st Rossi interrogatories
04/05/2017 0243.0 _3pDef_Opposition_to_IH_MSJ 203 & 207
== 243-01 – Exhibit A deposition of Darden excerpts
== 243-02 – Exhibit B deposition for IH by Vaughn excerpts
== 243-03 – Exhibit C  deposition of Mazzarino excerpts
== 243-04 – Exhibit D deposition of West excerpts
== 243-05 – Exhibit E  deposition of Bass excerpts 3.1 MB
== 243-06 – Exhibit F  deposition of Vaughn excerpts
== 243-07 – Exhibit G deposition of Murray excerpts
== 243-08 – Exhibit H deposition of Penon excerpts
== 243-09 – Exhibit I deposition of Dameron excerpts
== 243-10 – Exhibit J header says Johnson dep, actually OFAC draft
== 243-11 – Exhibit K Flight itinerary Rossi and Johnson 7/28/2014
== 243-12 – Exhibit L deposition of Dameron excerpts
== 243-13 – Exhibit M Affidavit of Rossi in support of 3pDef MSJ
== 243-14 – Exhibit N IH responses to 1st Rossi interrog excerpts
== 243-15 – Exhibit O deposition for IPH by Fogelman excerpts
04/05/2017 244_IH_Opp_to_3pDef_MSJ 242
04/05/2017 0245.0 _IH_ Opp_ to 3rdP_Statement_of_Fact
== 245-01 – Exhibit 1 License Agreement 10.5 MB
== 245-02 – Exhibit 2 Term Sheet – AACT Ex. 17, Complaint Ex. B 2.0 MB
== 245-03 – Exhibit 3 Email Rossi/IH drafts of Term Sheet
== 245-04 – Exhibit 4 from deposition of Darden 11.5 MB
== 245-05 – Exhibit 5 from deposition of Vaughn 17.5 MB
== 245-06 – Exhibit 6 from deposition of Rossi 10.5 MB
== 245-07 – Exhibit 7 from deposition of JMP by Rossi 15.2 MB
== 245-08 – Exhibit 8 from deposition of Johnson 34.8 MB
== 245-09 – Exhibit 9 incorporation J.M. Chemical Products, Inc.
== 245-10 – Exhibit 10 from deposition of Vaughn for IH 19.3 MB
== 245-11 – Exhibit 11 email Rossi to Vaughn, re customer
== 245-12 – Exhibit 12 from deposition of Leonardo by Rossi 21 MB
== 245-13 – Exhibit 13 from deposition of Bass 11.1 MB
== 245-14 – Exhibit 14 from deposition of Murray 17.3 MB
== 245-15 – Exhibit 15 plant data and expert disclosure of Murray
== 245-16 – Exhibit 16 FPL data
== 245-17 – Exhibit 17 IH-USQL Agreement Sept. 2013
== 245-18 – Exhibit 18 from deposition of West 15.0 MB
== 245-19 – Exhibit 19 from deposition of Fabiani 19.0 MB
== 245-20 – Exhibit 20 from deposition of Penon 11.2 MB
== 245-21 – Exhibit 21 emails Rossi about customer, was AACT Ex. 16
== 245-22 – Exhibit 22 emails IH, Cassarino, Rossi
== 245-23 – Exhibit 23 OFAC signed by Johnson
== 245-24 – Exhibit 24 email Rossi to Matthey re purchase 3/22/2015
== 245-25 – Exhibit 25 declaration of Darden
== 245-26 – Exhibit 26 Doral sublease: Leonardo to JMP
== 245-27 – Exhibit 27 emails Rossi-IH February 2015
== 245-28 – Exhibit 28 February 2015 emails Rossi-IH
== 245-29 – Exhibit 29 March 2015 communications Rossi-Johnson
== 245-30 – Exhibit 30 Bass business card
== 245-31 – Exhibit 31 deposition of Stokes 5.8 MB
== 245-32 – Exhibit 32 Rossi-Johnson emails
== 245-33 – Exhibit 33 Rossi-Bass emails
== 245-34 – Exhibit 34 July 2015 Rossi: Murray “cannot enter.”
== 245-35 – Exhibit 35 Vaughn to Johnson & Rossi about December visit, Johnson reply
== 245-36 – Exhibit 36 Murray questions for Penon, AACT Exhibit 5
== 245-37 – Exhibit 37 Fabiani-IH correspondence, February-April 2016 (AACT Ex. 21) 3.6 MB
== 245-38 – Exhibit 38 Murray to Fabiani April 2016
== 245-39 – Exhibit 39 Murray-Fabiani April-May 2016
== 245-40 – Exhibit 40 Fabiani-Murray April 2016
== 245-41 – Exhibit 41 IH Leonardo and USQL payments
== 245-42 – Exhibit 42 Declaration of Vaughn
04/06/2017 0246.0_Order_re_Rossi_appeal denying 240
04/06/2017 0247.0_IH_supp_207_MSJ previously filed under seal
== 247-01 – Exhibit 22 Cassarino (AEG) handwritten notes
== 247-02 – Exhibit 30 IH payments to Rossi and AEG
== 247-03 – Exhibit 31 2012 Tax Return Leonardo EID 90-0780933 2.9 MB
== 247-04 – Exhibit 32 2013 Amended return Leonardo EID 90-0780933 12.3 MB
== 247-05 – Exhibit 33 Rossi Personal Tax Return 1040NR 2013
04/06/2017 0248.0_IH_reply_Rossi_233_Opp_197 re IH motion to exclude Wong
== 248-1_Exhibit_1 Expert disclosure of Wong 2.9 MB
== 248-2_Exhibit_2 deposition of Wong
== 248-3_Exhibit_3 deposition for Leonardo by Rossi
== 248-4_Exhibit_4 deposition of Rossi
== 248-5_Exhibit_5 deposition for JMP by Rossi
== 248-6_Exhibit_6 supplemental expert report of Smith 2.1 MB
04/11/2017 0249.0_IH_amended_hearing_notice Magistrate 4/20 various topics
04/11/2017 0250.0_Rossi_notice_of_hearing add-on 4/20 re IH privilege claim (Zalli)
04/11/2017 0251.0_Missing_exhibit_from_207
== 251-01 – Exhibit 23 (0207.23 was blank) Declaration of Vaughn
04/11/2017 0252.0_Rossi_reply_re_MTS-Exclude
== 252-01 – Exhibit A Annesser to Pace 12/14/3015
== 252-02 – Exhibit B from Murray deposition
== 252-03 – Exhibit C expert disclosure of Murray
== 252-04 – Exhibit D expert report of Smith
== 252-05 – Exhibit E supplemental expert report of Smith 2.0 MB
== 252-06 – Exhibit F from deposition of Smith
04/11/2017 0253.0_IH_reply_to_Rossi_opp_to_MSJ
== 253-01 – Exhibit 1  Italian law
== 253-02 – Exhibit 2 from Darden deposition
== 253-03 – Exhibit 3 from deposition for IPH by Fogleman
04/11/2017 0254.0_Rossi_reply_re_R_MSJ
== 254-1 Exhibit A from deposition for IH by Vaughn
== 254-2 Exhibit B from deposition of Vaughn
== 254-3 Exhibit C from deposition of Vaughn
== 254-4 Exhibit D from deposition of Vaughn
== 254-5 Exhibit E from deposition of Darden
== 254-6 Exhibit F from deposition of Murray
04/12/2017 0255.0_3PD_reply_re_Opp_245
04/12/2017 0256.0_IH_reply 3PD Opp MSJ (file misnamed)
== 256-01 – Exhibit 1 deposition for JMP by Rossi 15.2 MB file
== 256-02 – Exhibit 2 deposition of Darden 11.5 MB file
== 256-03 – Exhibit 3 deposition of Johnson 35.8 MB file
== 256-04 – Exhibit 4 deposition of Bass 11.1 MB file OCR of pp 110-121
== 256-05 – Exhibit 5 deposition of Vaughn 17.5 MB file
== 256-06 – Exhibit 6 deposition of Murray 17.3 MB file
== 256-07 – Exhibit 7 deposition for Ampenergo by Cassarino
04/13/2017 0257.0_Rossi_Motion_for_time — two weeks, from April 18 to May 2.
== 257-1 Proposed order
4/13/2017 0258.0_Rossi_amended_M_for_time
== 258-01_Proposed_order
4/13/2017 0259.0_IH_resp_Rossi_Mf time
== 259-01_Hearing_transcript
04/14/2017 0260.0_Order_extending_time to May 2, but not for motions in limine
04/18/2017 0261.0_Magistrate_Order from discovery hearing March 23
04/18/2017 0262.0_Rossi_motion_to_exclude (in limine)
== 262-01 Exhibit 1 Deposition for Industrial Heat by Vaughn
== 262-02 Exhibit 2 First Amendment to License Agreement
== 262-03 Exhibit 3 Email 2013 Rossi-IH re Validation Test ERV
== 262-04 Exhibit 4 DRV 2013 memo re Validation Test
== 262-05 Exhibit 5 Deposition of Darden
== 262-06 Exhibit 6 Penon Validation Test report
== 262-07 Exhibit 7 Deposition of Vaughn
== 262-08 Exhibit 8 Expert Report of Smith
== 262-09 Exhibit 9  Email Rossi to IH at startup of Doral power delivery
== 262-10 Exhibit 10 Deposition of Murray
== 262-11 Exhibit 11 Deposition for IPH by Fogleman
04/18/2017 0263.0_Johnson-Bass_Motion_to_exclude
04/18/2017 0264.0_IH_Motion_to_Exclude re spoliation
== 264-01 – Exhibit 1 Deposition of Rossi 4.2 MB
== 264-02 – Exhibit 2 Expert Report of Smith
== 264-03 – Exhibit 3 Deposition of Dameron
== 264-04 – Exhibit 4 Deposition for JMP by Rossi
== 264-05 – Exhibit 5 “What is a Megawatt?” from nrc.gov
== 264-06 – Exhibit 6 Expert Disclosure of Murray
== 264-07 – Exhibit 7 Deposition of Wong
== 264-08 – Exhibit 8 Deposition for JMP by Rossi
== 264-09 – Exhibit 9 Deposition of Penon
== 264-10 – Exhibit 10 Deposition of Fabiani
== 264-11 – Exhibit 11 IH-USQL Agreement 2013 3.8 MB
== 264-12 – Exhibit 12 8/2015 letter from Rossi to IH, 12/2015 reply Jones Day for IPH
== 264-13 – Exhibit 13 12/9/015 mail IH-Rossi/JMP re proposed 12/2015 visit, Johnson reply
== 264-14 – Exhibit 14 12/2017 mail Annesser (Rossi) to Pace (IH) re dispute and anticip. breach
== 264-15 – Exhibit 15 Declaration of Vaughn
== 264-17 – Exhibit 17 Rossi JONP posts April 6-18, 2017
== 264-18 – Exhibit 18 Penon Final Report 7.9 MB
== 264-19 – Exhibit 19 Deposition of Murray
== 264-20 – Exhibit 20 Deposition of Darden
04/19/2017 0265.0_IH_hearing_notice before Magistrate 4/20
04/20/2017 0266.0_Order hearing 4/20 denying motions, req. new 30(b)(6) IPH/Cherokee depositions
== full transcript of 4/20 Magistrate hearing (notice to Docket not seen).
04/21/2017 00267.0 (no doc) minutes Discovery Hearing
PAPERLESS Minute Entry for proceedings held before Magistrate Judge John J. O’Sullivan: Discovery Hearing held on 4/20/2017. Total time in court: 2 hour(s) : 30 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Christopher Rebel Jude Pace, Erika Stephanie Handelson, Christopher Martin Lomax, John William Annesser, II, Robert Bernstein. (Digital 15:02:08) (cg1)
04/21/2017 00268.0 (no doc) Notice of Hearing on Motion
PAPERLESS NOTICE of Hearing on 262 Plaintiff’s MOTION in Limine, 264 Defendant’s MOTION in Limine, 197 MOTION to Exclude The Opinions and Testimony of Dr. K. Wong, 263 MOTION in Limine: Motion Hearing set for 5/23/2017 10:00 AM in Miami Division before Judge Cecilia M. Altonaga. (ps1)
04/21/2017 00269.0 (no doc) Clerk’s Notice (Other)
CLERK’S NOTICE re 268 PAPERLESS NOTICE of Hearing; hearing on 197 MOTION to Exclude The Opinions and Testimony of Dr. K. Wong set in error; the only motions scheduled for this hearing are docket entries 262, 263, and 264. (ps1)
04/27/2017 0270.0_Annesser-Chaiken_address Annesser & Chaiken, PLLC (PBY&A not on service list)
05/01/2017 0271.0 Transcript see 217, Notice 221, minute entry 230, & Order 231, Rossi appeal denied.
TRANSCRIPT of the Motion Hearing held on 03/28/17, before Judge Cecilia M. Altonaga, 1-28 pages, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/22/2017. Redacted Transcript Deadline set for 6/1/2017. Release of Transcript Restriction set for 7/31/2017. (smn)
05/01/2017 0272.0 Transcript see 183/184/185,190, minute entry 219 & Order 225 IH appeal granted.
TRANSCRIPT of the Motion Hearing held on 03/24/17, before Judge Cecilia M. Altonaga, 1-60 pages, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased by contacting the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/22/2017. Redacted Transcript Deadline set for 6/1/2017. Release of Transcript Restriction set for 7/31/2017. (smn)
05/02/2017 0273.0_Rossi_Motion_for_time
== 273-01 – Proposed order
05/02/2017 0274.0_Order granting time until 5/05 for all parties to present trial exhibit lists
05/02/2017 0275.0_USQL_Motion_for_time to respond to 264 motion in limine
05/02/2017 0276.0_Rossi_Opp_M_in_limine (re 264)
== 276-01 – Exhibit 1 excerpt 4/20 discovery hearing transcript re spoliation
== 276-02 – Exhibit 2 deposition of Penon
== 276-03 – Exhibit 3 License Agreement
== 276-04 – Exhibit 4 email Lamacraft to Vaughn
== 276-05 – Exhibit 5 2.7 MB IHHI valuation as of May 13, 2015
05/02/2017 0277.0_JMP_Opp_M_in_limine (re 264)
05/02/2017 0278.0_IH_Opp_M_in_limine re 263 by 3rd party defendants
== 278-1 Ex. 1 Darden to Rossi 2014-07-10 re term sheet
== 278-2 Ex. 2 Rossi to Darden 2014-07-11 revised sheet
== 278-3 Ex. 3 Rossi to Darden 2014-07-30 re confidentiality
== 278-4 Ex. 4 deposition for JMP by Rossi
== 278-5 Ex. 5 Vaughn to Johnson 2014-08-11 draft OFAC declaration
== 278-6 Ex. 6 deposition of Darden
== 278-7 Ex. 7 deposition of Bass
05/02/2017 0279.0_IH_Opp_M_in_limine re 262 by Rossi
== 279-01 – Exhibit 1 4/23/2013 Rossi to Vaughn re Validation Test
== 279-02 – Exhibit 2 4/24/2013 Rossi to IH re VT
== 279-03 – Exhibit 3 deposition of Rossi
== 279-04 – Exhibit 4 5/5/2013 ERV report on Validation Test
== 279-05 – Exhibit 5 deposition of Penon
== 279-06 – Exhibit 6 Italian regulations
== 279-07 – Exhibit 7 2/18-2/20/2015 Penon – IH re test protocol
== 279-08 – Exhibit 8 deposition of Dameron
== 279-09 – Exhibit 9 deposition of Murray
== 279-10 – Exhibit 10 10 MB License Agreement
== 279-11 – Exhibit 11 3.8 MB Lugano Report
== 279-12 – Exhibit 12 9/10/2012 Rossi to Darden/Vaughn re Hydro Fusion test
== 279-13 – Exhibit 13 9/10/2012 Rossi to Darden/Vaughn re getting rid of “big clicense.”
== 279-14 – Exhibit 14 9/17/2012 Rossi to Darden re Agreement negotiations
== 279-15 – Exhibit 15 0/5/2012 Darden to Rossi re Agreement negotiations
05/03/2017 0280.0 – Joint pretrial stipulation
05/03/2017 0281.0_Order granting 275 unopposed Motion for Time
05/04/2017 0282.0_IH_Correction_of_236
05/04/2017 0283.0_Rossi_appeal of Magistrate Order 266 confirming protection of Zalli email
== 283-01 – Exhibit 1 full transcript of Magistrate hearing 2/23/2017
== 283-02 – Exhibit 2 full transcript of Magistrate hearing 3/9/2017
== 283-03 – Exhibit 3 full transcript of Magistrate hearing 4/20/2017
== 283-04 – Exhibit 4 2/23/2016 Darden to Zalli/Uzi Shaya
== 283-05 – Exhibit 5 Levi declaration
== 283-06 – Exhibit 6 deposition of Darden
05/05/2017 0284.0_Rossi_Motion_for_time to file exhibit list
== 284-01 – Proposed order
05/05/2017 0285.0_IH_appeal of Magistrate denial of Motion for sanctions for spoliation
== 285-01 – Exhibit 1 Feb 2015 emails IH-Penon
== 285-02 – Exhibit 2 deposition for Leonardo Corp by Rossi
== 285-03 – Exhibit 3 deposition of Dameron
== 285-04 – Exhibit 4 deposition of Penon
== 285-05 – Exhibit 5 deposition of Rossi
== 285-06 – Exhibit 6 deposition for JMP by Rossi
== 285-07 – Exhibit 7 photo of steam pipe coming out of reactor container
== 285-08 – Exhibit 8 deposition of Wong
== 285-09 – Exhibit 9 expert disclosure of Murray
== 285-10 – Exhibit 10 expert report of Smith
== 285-11 – Exhibit 11 (14 previously) 12/14/2015 email Annesser to Jones Day
== 285-12 – Exhibit 12 12/9/2015 mail Vaughn to Rossi & Johnson
== 285-13 – Exhibit 13 12/9/2015 mail Johnson to Vaughn
== 285-14 – Exhibit 14 2/22/2016 Jones Day to Johnson re default and security
== 285-15 – Exhibit 15 full transcript 4/20 Magistrate hearing
== 285-16 – Exhibit 16 Order from 4/20 hearing (DE 266)
05/05/2017 0286.0 ORDER denying 284 Motion for Extension of Time. Signed by Judge Cecilia M. Altonaga (CMA)
05/05/2017 0287.0 PAPERLESS NOTICE of Hearing on 283 Plaintiff’s APPEAL of Magistrate Judge to District Court Order – ECF No. 266, 285 Defendant’s APPEAL of Magistrate Judge 266 Order to District Court Denying Motion for Sanctions Based on Spoliation: Motion Hearing set for 5/23/2017 10:00 AM in Miami Division before Judge Cecilia M. Altonaga. The Court has reserved the rest of the day for this hearinig. [sic] (ps1)
05/05/2017 0288.0_3pD_Opp_to_IH_motion in limine 264 re spoliation
05/06/2017 0289.0_Pretrial_joint_stipulation_supplement Exhibit lists for parties
05/09/2017 0290.0_Bernstein_appears_for_Rossi
05/09/2017 0291.0_Order-Jury_trial_instructions
05/09/2017 0292.0_PBY-A_for_Rossi_withdrawal
== 292-01 – Proposed order
05/09/2017 0293.0_Order Motion 292 granted, PBY&A relieved.
05/09/2017 0294.0_Rossi_rep_supporting_motion_in_limine 262 (IH opp 279)
05/09/2017 0295.0_IH_MTS_Rossi_exhibit_list
05/09/2017 0296.0_JMP_reply_supp_M_in_limine
05/09/2017 0297.0_IH_reply_supp_M_in_limine
== 297-01 – Exhibit 1 April 20 Discovery hearing full transcript.
== 297-02 – Exhibit 2 1/11/2016 USPTO correspondence re Rossi patent
== 297-03 – Exhibit 3 Murray queries for Penon re conv. 2/16-17/2016
== 297-04 – Exhibit 4 deposition of Penon
== 297-05 – Exhibit 5 Fabiani Plant data
== 297-06 – Exhibit 6 joint trial stipulation ¶¶ 1-2.
05/10/2017 0298.0_Order denying IH motion 295. (deadline passed for such Ms)
05/12/2017 0299.0_IH_rep_USQL_opp_264
== 299-01 – Exhibit 1 deposition of Fabiani
== 299-02 – Exhibit 2 5/12/2017 declaration of Murray
== 299-03 – Exhibit 3 2/23/2016 email Fabiani to Vaughn
== 299-04 – Exhibit 4 3/22 and 4/1/2016 Murray to Fabiani
== 299-05 – Exhibit 5 3/21/2017 declaration of Vaughn
05/16/2017 0300.0_Rossi_Motion_allow_supp_ MSJ
== 300-01 – Exhibit 1 proposed supplement to MSJ
== 300-02 – Exhibit 2 Proposed order
05/17/2017 0301.0 ORDER (no doc) denying 300 Motion for Leave to File. Signed by Judge Cecilia M. Altonaga (CMA)
05/17/2017 0302.0_Order denying all three motions for summary judgment
05/17/2017 0303.0_Order re motions to exclude. Murray not excluded, 2/4 of Wong opinions excluded.
05/18/2017 0304.0_Rossi_Mf_clarification re Order 303, see denial 308
05/18/2017 0305.0_Rossi_Opp_IH_Appeal 285 re spoliation
== 305-01 – Exhibit 1 full transcript of April 20 hearing
05/18/2017 0306.0_JMP_Opp_IH_appeal 285 re spoliation
05/18/2017 0307.0_IH_Opp_Rossi_appeal 283 re privilege
== 307-01 – Exhibit A deposition of Darden
== 307-02 – Exhibit B declaration of Uzi Shaya
05/19/2017 0308.0 ORDER (no doc) denying 304 Motion. Signed by Judge Cecilia M. Altonaga (CMA) (Entered: 05/19/2017)
05/22/2017 0309.0_Rossi_Mf_Discovery re Murray and requesting new Rossi expert
05/22/2017 0310.0 ORDER (no doc) denying 309 Motion for Leave to File. Plaintiffs, somewhat inexplicably, continue to overlook and violate the deadline for filing pretrial motions, which has long since passed. Further, Plaintiffs continually fail to comply with the conferral requirements of the Local Rules. Future non-compliance will result in the imposition of sanctions. Signed by Judge Cecilia M. Altonaga (CMA)
05/23/2017 0311.0 (no doc) PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Motion Hearing held on 5/23/2017 re 262 Plaintiff’s MOTION in Limine filed by Leonardo Corporation, Andrea Rossi, 285 Defendant’s APPEAL of Magistrate Judge 266 Order to District Court Denying Motion for Sanctions Based on Spoliation, 264 Defendant’s MOTION in Limine filed by Industrial Heat, LLC, John T. Vaughn, Thomas Darden, Cherokee Investment Partners, LLC, IPH International B.V., 263 MOTION in Limine filed by Henry Johnson, James A. Bass, J.M. Products, Inc., 283 Plaintiff’s APPEAL of Magistrate Judge to District Court Order – ECF No. 266. Total time in court: 3 hour(s) : 25 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Erika Stephanie Handelson, Christopher Martin Lomax, Fernando S. Aran, John William Annesser, II, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
05/23/2017 0312.0 (no doc) PAPERLESS NOTICE Setting Hearing: Pretrial Conference set for 6/13/2017 09:00 AM in Miami Division before Judge Cecilia M. Altonaga. (wc)
05/24/2017 0313.0_Order granting/denying in part MiLs 262 263 264 denying Appeals 283 285
05/31/2017 0314.0_Rossi_attorney_appearance – John C. Lukacs, Sr. of Hinshaw & Culbertson LLP
06/13/2017 0315.0 Minutes Pretrial Conference PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Initial Pretrial Conference held on 6/13/2017. Total time in court: 5 hour(s). Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, John Charles Lukacs, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/15/2017 0316.0 Minutes Telephone Conference PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Telephone Conference held on 6/15/2017. Total time in court: 3 hour(s) : 10 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/19/2017 0317.0 Proposed Voir Dire Questions Mon 6:26 PM
Proposed Voir Dire Questions by Leonardo Corporation, Andrea Rossi. (Annesser, John) Docket has irrelevant file, another case involving Annesser, see 318.
06/19/2017 0318.0_Rossi_voir_dire Proposed Questions Mon 6:29 PM
Proposed Voir Dire Questions by Leonardo Corporation, Andrea Rossi. (Annesser, John)
06/19/2017  0319.0_IH_voir_dire Proposed  Questions Mon 9:13 PM
Proposed Voir Dire Questions by Cherokee Investment Partners, LLC, Thomas Darden, IPH International B.V., Industrial Heat, LLC, John T. Vaughn. (Handelson, Erika)
06/19/2017 0320.0 Pretrial Conference – Interim Tue 8:05 AM
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Interim Pretrial Conference held on 6/19/2017. Total time in court: 3 hour(s) : 22 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Christopher Martin Lomax, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/19/2017 0321.0 notice Clerks Notice of Docket Correction and Instruction to Filer – Attorney Tue 10:01 AM
Clerks Notice to Filer re 317 Proposed Voir Dire Questions. Document Not Related to Case; CORRECTIVE ACTION REQUIRED – Filer must file a Notice of Striking, then refile the document in the appropriate case. (ps1)
06/19/2017 0322.0 minutes Pretrial Conference – Interim Tue 4:39 PM
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Interim Pretrial Conference held on 6/20/2017. Total time in court: 1 hour(s) : 33 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Christopher Martin Lomax, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/22/2017 0323.0 minutes Pretrial Conference – Interim
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Interim Pretrial Conference held on 6/22/2017. Total time in court: 1 hour(s) : 43 minutes. Attorney Appearance(s): Christopher Rebel Jude Pace, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/27/2017 0324.0_Statement_of_the_case
06/27/2017 0325.0_Joint_notice_of_deposition_desig
== 0325.01_Attachment_1
== 0325.02_Attachment_2
06/28/2017 0326.0_IH_witnesses supplement to 325
06/28/2017 0327.0 Minute entry (pretrial conference 6/23)
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Final Pretrial Conference held on 6/23/2017. Total time in court: 1 hour(s) : 24 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Christopher Rebel Jude Pace, Brian W. Chaiken, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/28/2017 0328.0_Order permitting electronic equipment to come into the court
06/28/2017 0329.0_Day_1
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Jury Trial begun on 6/28/2017. Total time in court: 4 hour(s). Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Erika Stephanie Handelson, Bernard P. Bell, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, Robert Andrew Bernstein, John Charles Lukacs, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/29/2017 0330.0_Day_2
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Jury Trial held on 6/29/2017. Day 2. Mistrial declared after dismissing jurors. Total time in court: 15 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Erika Stephanie Handelson, Bernard P. Bell, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, Robert Andrew Bernstein, John Charles Lukacs, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
06/30/2017 0331.0_Day_3
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Jury Trial held on 6/30/2017. Day 3. Total time in court: 4 hour(s) 40 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Erika Stephanie Handelson, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, John Charles Lukacs, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz)
07/05/2017 0332_Day 4 (called “Day 2” in file, inconsistent with 0331
PAPERLESS Minute Entry for proceedings held before Judge Cecilia M. Altonaga: Jury Trial completed on 7/5/2017. Case settled. Total time in court: 48 minutes. Attorney Appearance(s): Francisco J Leon de la Barra, Rodolfo Nunez, Christopher Rebel Jude Pace, Erika Stephanie Handelson, Bernard P. Bell, Christopher Martin Lomax, John William Annesser, II, Brian W. Chaiken, John Charles Lukacs, Court Reporter: Stephanie McCarn, 305-523-5518 / Stephanie_McCarn@flsd.uscourts.gov. (cmz) (Entered: 07/05/2017)
07/06/2017 0.333.0_Order_of_dismissal
07/19/2017 0334.0_Stipulation_of_dismissal

Neutral analysis pages

IH Answer Merge with Rossi Claims
Rossi Answer Merge with IH claims
Rossi v. Darden cast of characters
Study of 207:IH Statement of material fact supporting MSJ (temporarily includes Abd analysis and opinion)
Study of 214:Rossi Motion for Partial Summary Judgment — on replication (temporarily includes Abd analysis and opinion)
RvD: List of admissible evidence
RvD: Depositions List of all depositions and affidavits by deponent or affiant
RvD: Opening statements

Discussion and opinion links

This blog Rossi v. Darden category


Many files were originally downloaded from PACER by Eric Walker of LENR Forum.
User can on LENR-forum has supplied some OCR translation of files.
Various donations received for expenses have been greatly appreciated. (just one filing can cost $100 to download from PACER, though most are much less expensive). Infusion Institute, Inc., has supported this work, thanks to a 2014 gift from the Anthropocene Institute.

Donations to support coverage of Rossi v. Darden (Abd leaves 6/23/2017 for Miami) may be made through GoFundMe. Any excess donations above expenses will fund the work of Infusion Institute, Inc. (III is a Massachusetts nonprofit corporation, but does not yet have federal tax-deductible status.) The purpose of III is to support and facilitate basic scientific research regarding LENR, through creating advisory consensus. III does not plan to directly fund any projects other than supporting the flow of information and communication with parties and possible parties. (Yay! Parties!) Funding decisions will be made by sources of funding, aside from III direct expenses.

A series of composite files have been put up on thenewfire blog. I am copying them here as they may possibly be useful. Some of the original pdfs are not searchable or text-copyable, but these have been OCR’d. They are shown in the list where appropriate. They have the form of n.pdf, where n is the DE number.

If I have missed anyone (I think I have), please mention it!