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.



Touch and go at the Planet Rossi spaceport

Touch and go.

Nice place to visit but I wouldn’t want to live there.

On LENR Forum, Argon wrote:

There is not much new facts anymore to dig from court documents. Re-circling around pipe diameter (it was first claimed to be 5″ , remember), pressure and window frame paints and reflections, marks on the floor etc. is waste of time at this point. There is no clear evidence did Rossis container produce extra heat or not no matter how much we dig photo details and stains on floor.

Argon has noticed that much. But what it seems he is doing is looking for “new facts,” as if most everything is already known. Distinguishing between fact and fantasy can be … difficult. Most of us walk around in illusion and fantasy, starting with our sensory experience, which is heavily filtered and processed so that we don’t notice the artifacts, such as entoptic phenomena. We have Motions for Summary Judgment pending. These will depend on fact, not fantasy and speculative judgment. And my guess is that Argon does not discriminate, and confuses the two, routinely. It would not be surprising. In many ways, that is how most of us live, until we die and the illusions fall apart. Maybe. “Nice place to visit.”

In any case, thanks to Argon for the work involved in putting together a series of Planet Rossi tropes.

What instead has been shown plain clear in documents is that:
-Ross become suspicious on IH:s agenda, and is now proven, for a good reason.

No surprise, Planet Rossi thinks like Rossi. This is well-known in sophisticated circles: treat people with suspicion, they will come to merit the suspicion. Argon is, here, asserting “proof” for a claim of agenda. What stands as “proof” for Argon?

-IH was trying to rule LENR markets by trying to capture all relevant LENR IPR. IH business plan is so revealing and clear on this.

Argon doesn’t cite the sources. I’ve been going over and over those sources. I don’t see what he sees, what he thinks is “so revealing and clear.” IH clearly wants to be a major player with LENR. They are not, however, attempting to control the entire field, but rather to cooperate and collaborate with very much of it. They do not see LENR as a zero-sum game, unlike, say, Andrea Rossi, who has been explicitly attempting to dominate the market, to own it, he’s been very open about it.

What IH obviously wants to do is to, first, stimulate LENR progress (including by funding basic research without commercial potential in itself), and, second, to be in a position to recognize and participate in genuine commercial opportunities, if those arise. Right now, I don’t know of any, but they might know more and it is their business to know more. If they operate with lies and deception, they could easily trash their relationship with the field.

-Funding rest of the researchers they tried to control how LENR comes to market – if ever. (any research community members want to speak up?)

Most CMNS researchers will not come close to fora like LENR-Forum. This is meaningless. “Coming to market” is way premature for the field. Rossi was the only game even asserted to be close. Brillouin Energy makes some claims, but if one reads them closely, they are not close. They are merely promising, if that. Nobody really understands how LENR works, it is, at this point, a lab curiosity, unreliable, difficult to control. There are some experimental approaches working on that, but the best work at this point is fundamental science, particularly confirming and measuring with increased precision the heat/helium correlation in palladium deuteride work. This has no commercial implications and is being funded, effectively, through charitable contribution and state matching funds. IH is, of course, quite aware of this. I was told first by someone from IH that the effort in this regard was well-funded, and only discovered the source of that funding later.

What I do know is that IH has good relations with most of the established researchers in the field, if not all, and there is no sign of discontent or opposition to IH there.

-It become as big surprise to IH that Mr Rossi choose rather to fall with IH in court than let them steal and control the LENR market. For example mr Weaver learnd about problems just late February just before IH published their press release. Until that he was going full ahead on expanding IH:s smelly reach.

This is incoherent. Rossi’s action filing the lawsuit has demolished his own fundraising possibilities. Weaver knew about issues with Rossi long before last February, but held his water.

-Hiring israeli partners to do the dirty work to invalidate test report by seemingly unethical means – no matter was court sealing the doc or not. The proof is there in black on white,

There is no evidence of “hired Israeli partners.” This was Levi’s fantasy. There is no “proof,” but not only is there no proof, there is no evidence other than Levi’s rant. There is no evidence that the private investigator was working for IH, and no evidence that the investigator attempted to “invalidate” the Lugano report. Essentially, it takes a paranoid mind to read the documents that way. Argon is claiming “proof” in “black and white,” but does not actually point to it. Game on, Argon. Put up or shut up.

In some of the court pleadings, attorneys claim proof, and point to documents as evidence, and those documents don’t support the claims, and sometimes even the opposite. In some circles, that would be called “lying.” Claims in pleadings, though, are not subject to perjury for false representations, though sometimes there can be sanctions.

– Mr Weaver sending very nasty mail to Swedish professors should be glowing warning sign for any current and future business partners to stay far away from any IH-initiatives. I’m very delighted to see that Swedish companies are much more far sighting.

I didn’t find that mail nasty at all, nor did the recipient claim it was nasty. It was Levi who reacted that way, hysterically, and then Rossi claimed that this was an attempt to damage his Nobel Prize prospects. Yeah, right.

-Not signing amendment paper is just lawyer juggling and spells out loud and clear real IH skin.

It is not just a lack of signature, and it was not IH who did not sign. It was Ampenergo, Rossi’s long-term supporters, and this was not some merely technical oversight, it was deliberate. The Second Amendment, that allowed the GPT to be postponed, was invalid, and Rossi knew it. IH then said that Rossi could still earn the money, if he fulfilled the underlying purposes of the Agreement. Rossi took this as allowing him to set up a fake GPT (creating resemblances) without ever obtaining the written agreement that the Second Amendment required, if it had been valid. Rossi, being paranoid, never understood that in business, one must actually satisfy customers and investors, not merely fulfill some technical requirement. When he refused to allow Murray to visit the Doral plant, that was a bridge too far, way too far. This violated not only the Term Sheet, but also the clear intentions of the Agreement that IH would have the ability to fully observe the required tests. Rossi did not have the right to choose who would represent them, they had that right. Rossi, in his answer, explained that he believed that Murray was a spy. Spy for whom?’

And why would there be Rossi secrets at Doral, other than the Plant operation itself, which Rossi had supposedly fully disclosed to IH already?

Well, he was doing his own research there. Doral, instead of being what he had represented, a chemical manufacturing company, was entirely Rossi created, designed, controlled, and paid for. He rented the warehouse and only subleased part of it to “JMP” and all this really existed only on paper and in his mind. And he lied about it again and again.

-Big resources of Planet IH here is repeatedly and consistently redirecting discussion to some irrelevant details every time some one tries to touch some relevant subject. That is so clear pattern that this thread is very fruitful source for lots of manipulation studies to come. (see what happens quickly after this posting)

There are no “big resources of Planet IH” on LENR Forum. The closest is Jed Rothwell, who was at one time listed as a possible advisor. Jed has claimed he has not received any payments from IH; and I know Jed, for a long time, as a source of funding and support for LENR. He is not in IH’s pocket, he doesn’t need IH, but Jed supports LENR and anyone who supports LENR is, as the science, would be likely to have some friendly connection with IH. He’s visited them in North Carolina, which is not far from where he lives.

Then there is Dewey Weaver, who is not positing on LF any more and who might not go back. IH doesn’t need LF, for anything. I can guarantee that IH is not supporting coverage of Rossi v. Darden, at least not so far! I think I’d know about it!

– Have you ever wondered that IH was not willing to arrange test customers.

Liar, liar, pants on fire! Okay, he probably believes this carp. IH had a customer ready and willing, and Rossi rejected it, and this is clear not only from IH testimony, but from the Rossi email proposing the move of the Plant to Florida. Basically, Argon has believed Rossi Says, but has not modified his impressions by studying the case documents. And if he does, he will likely be searching for proof of what he already believes. That is the major way that we fool ourselves.

-Have you ever wondered why IH is not willing to give back the license if they think that Rossis conainer is expensive water boiler with COP of 1.

Why should they “give back” what they paid for? We do not know that IH has refused to return the license, nor on what conditions. This is all Rossi Says. One of the possibilities here, it is explicitly suggested by IH as one of two major possibilities is that Rossi actually has a real technology but is creating a breakdown of the IH Agreement in order to get them to return the license — as he did with Hydro Fusion before.

(Annesser ridiculed the “two alternatives,” ofensively, in my mind, as logically inaccurate. I.e., of course there are more than two possibilities, but some of them will not be ones that would be asserted by IH, such as “IH is lying through their teeth.” Logical possibility, to be sure. Not a practical one.)

As long as there is even a small possibility, I would expect IH to hold on to the license. However, if there is some consideration for return, such as a refund of their investment, they might let it go. That investment at this point is north of $20 million, I expect. Would they take less? I don’t know.

All this would be considered in settlement negotiations, if there are any, or in a court decision, if it comes to that.

Argon is thinking in black and white terms. I.e. if the technology is worthless, which he probably believes IH is claiming — I haven’t noticed that — then the license is worthless, but the value of a license like this, to a venture capitalist — and that is IH — is the probability of value in the future times the benefit if that value matures. In this case, the benefit could be a trillion dollars. What has been shown (from the IH point of view) is that Rossi did not transfer the technology to them, if it is real. So what is the probability that it is real? In this scenario, Rossi is withholding the secret, and he has done the like of this before. Rossi seems to understand that, with the License Agreement, he was not only selling the “E-cat,” but all related future development, such as Quark-X. And easily he might believe he sold it too cheaply.

But a bird in the hand is worth two in the bush. If there is enough cash on the barrel, IH might decide it would be better to invest that elsewhere. These are complex decisions, not the mindless “real or not” calculations of Argon. I know a lot, and I still don’t know which I would choose. To pay IH what it would take, though, would probably be more than Rossi has, so he’d need to find a new investor, if there are any left on Planet Earth who would trust him. Mostly Planet Rossi is a collection of losers, with big mouths and small pocketbooks. Still, you never can tell. How about Magnus and Hydro Fusion? Have they forgiven Rossi for what he did to them — by his account — in 2012? Hope springs eternal.

Disclaimer: No I don’t believe Rossi had anything produced in ‘customer’ container nor that ERV would be reliable, but I’m thankful for him to reveal true colors of IH:s LENR job. Someone will it as viable technology and LENR now escapes from IH:s hands – for the better of us all.

What I’ve seen of IH operations, in the court documents, actually gives me high faith in them as angel investors. I know some researchers that they have supported. Nobody is complaining, but Rossi, the one who received the most support, and IH did not stop Rossi from developing and promoting his technology, there is no evidence of that. They had a right of first offer as to licenses elsewhere, but this could not harm him, it would give him more money if they exercised it. He could have installed a high-power reactor in Sweden, years ago, if he had one. The one who has stopped Rossi, if he has anything real, is Rossi.

Rossi created the Doral test that he slaved away at. He is now claiming that it was uncomfortably hot. Did he claim that during the year? Did anyone else report that? The entire idea of a 1 MW test was Rossi’s, this is not what any engineer would want. Apparently IH offered to pay him to not do it. He refused. Rossi did not use lawyers for what they are good for, negotiations. He only used Annesser to threaten and then to sue. My guess is that Annesser encouraged that, leading his client down the road to ruin.

PS. Just wish me356 has taken a good read on this case and keep cool and stay far away of such business partners.

I see no evidence other than “me356 Says” that me356 has anything real. Maybe he does. Maybe not. I decided, by 2011 or 2012, that the future of LENR could not depend on speculations and secret commercial ventures (like Rossi), that we needed a “Plan B,” which I identified as encouraging basic scientific research.

I see IH as a partner in that effort, willing to work with other players, so far, at least. I expect genuine commercial efforts to be secret, and I expect science to be open. The two, mixed, become mixed-up, because there arise conflicts of interest. LENRIA, Nagel’s organization, may have a role to play here.

Abd on Abd as the Center of the Universe

They are talking about me on LENR Forum again. While the history of my ban there is quite open, if one studies history on LF and looks at what I wrote here about it when it happened, it’s obvious that few actually know the history. LF Staff are far from transparent, which is a major part of the problem.

Let’s start with this: the Condensed Matter Nuclear Science (CMNS)  community needs to develop what are called, in my training, Structures for Fulfillment. From the beginning, the community was fragmented and ineffective, compared to what might be seen as possible. When I came into the field in 2009, I found no evidence of sane collective decision-making procedures that were anything more than ad hoc. Fund-raising was isolated and largely individual. Factions were fighting with each other, but aside from a few highly opinionated individuals, internal criticism was mostly missing. Experts in CMNS did not criticise the work of others, they would not even comment on it (and I asked).

I saw, in CMNS conferences, no mechanisms for finding and expressing consensus. So, from a social point of view, it was all primitive, and mostly the community was reactive, blaming the lack of progress on “them,” the mainstream refusing to accept experimental reality. But how was that reality being communicated? Was it effective and clear? Were experts in communication being sought, either as paid consultants or as volunteers?

Mostly not. Something was missing, and, since I could see it, it became my responsibility to create it. So, now, to LF. This will be long, because many complex issues are raised. Part of the problem is an intolerance of complexity. Complexity is not for everyone, but what I’ve found, many times, is that those who hate complexity will act to suppress it, even though they could simply step around it. What we do not understand, we try to kill, it is probably a basic survival instinct, xenophobia.

In a sane organizational structure, complexity is channeled. In an insane one, it is repressed, censored, or at least ridiculed and insulted. Continue reading “Abd on Abd as the Center of the Universe”

Agreement written with vanishing ink

And Rends does it again, making claims with a link to a document that does not show what he claims. This one was a familiar point to it, and I thought for a few minutes that I’d made some big mistake with what I’d written before. Instead, there is another explanation.

On LENR Forum, Rends wrote: (Abd emphasis)

The heat exchanger story is a good example, as the IH expert Rick A. Smith has shown in his report by means of photographs, there was this serpentine heat exchanger, just as Rossi has described it to Wong. What sense should the installation of this heat exchanger make, if the Ecat plant does not work? Because according to the agreements between IH and JM Products, no IH personal would have been allowed to take a look into the black box. This heat exchanger makes sense only if heat is actually produced, if this was all a fake, this installation would have been completely unnecessary.

https://thenewfire.files.wordp…_1_to_15_ocr.pdf#page=136 Continue reading “Agreement written with vanishing ink”

On fantasy, fact, belief, and faith

I had recently seen a sane post from Rends and so, I thought, maybe he is learning. And then I saw this exchange today.

On LENR Forum, Rends wrote:

It is not about faith but about facts.

Great. However, Rends proceeds to mix fact and fantasies, his own or some, perhaps, shared with Planet Rossi. “Fantasy” is not a synonym for “error,” but rather distinguishes fact from what we make facts mean. Science, in general, is a collection of experimental reports (generally, “fact”) plus interpretive relationships that have been shown to be useful for prediction of future findings and experience. These are not fact, they are fantasy, and an ontological or epistemological error is made when they are considered fact. They can be highly useful, but if considered fact, they can inhibit change and growth. Rather, fantasies are useful or they are not. That, itself, is a fantasy, by the way, mine.

This ontology might seem to create an endless regression, but, in actual practice, it does not. The sky does not fall when we recognize our favorite beliefs as being fantasies, once we get over the impression that fantasy is Bad. Fantasy is incredibly useful, when distinguished.

So, the rest of Rends’ comments:

Fact is, there are several reports and expert opinions (such as the Lugano Report, the Penon Report, the Wong Opinion etc.pp.), which are mentioned in this court proceedings, from respected scientists, who confirm that the 1MW Ecat Plant works, Cherokee Investment Partner has only two technicians that make assumptions without having ever tested the system itself.

What a mess!


There are two reports, allegedly by experts, mentioned in the Court Proceedings. The Penon Report allegedly confirms that the “1 MW Plant works.” The Wong report does not. Wong was hired to critique the Smith and Murray expected testimonies, and Wong claims to find that certain criticisms are not well-founded. He does not opine on whether or not the Plant  “worked.”

There is the Lugano Report, which is not an expert opinion, these “respected professors” — that’s a Planet Rossi trope and is common among pseudoscientists — were not expert in the necessary field, calorimetry by using thermal imaging — so behind this opinion is a set of held assumptions, beliefs, or fantasies, that are not explicitly distinguished. The Lugano report and all the other reports do not “confirm that the 1 MW Plant works.” It would not do that even if it were not riddled with errors.

Only one set of people have thoroughly tested the E-cat technology where Rossi did not effectively control the process, and that is Industrial Heat. The flaws in Lugano and prior reports (such as that by Kullander and Essen) were well-known and widely discussed, long before this trial.

Then, Rends repeats the Planet Rossi trope, part of the general conspiracy theory that Rends supported in the past, that the LENR investment and control is in the hands of Cherokee. None of the evidence supports that. Rends converts the fact that Darden is CEO of Cherokee into a claim that Cherokee is in control. It is much more “factual” that Darden is in control (of both), but as CEO, Darden is responsible to the investors who own the various Cherokee entities.

I have seen no evidence that Cherokee invested anything more than a de minimus allowance for Darden to use Cherokee facilities, such as a mail drop, and Fogleman is CFO of Cherokee and provided services to IH and IPH.

Cherokee did not invest in IH, outside of these services, and it is possible that Cherokee was reimbursed for them. (I recall some evidence to that effect, but it’s not important enough to research right now.) This was all de minimus. The Agreement was explicit, and included an Entire Agreement clause that disallowed any reliance on verbal assurances, which may have been actually misleading, or which may have been merely misunderstood, and the latter, given how we have seen Rossi interpret known fact, seems quite possible. Entire Agreement clauses are written and included, as standard practice, precisely to avoid, years later, arguments over he said, she said.

And there is Cherokee Investment Partners, Thomas Darden et.al., who by all means try to get the entire IP of LENR Technology world-wide under their control with an impenetrable network of sham companies, where they do not even know themselves, witch management position they have inside this companies.

So again Rends is building a conceptual structure based on the Cherokee fantasy. There is no “impenetrable structure,” though there is privacy. For LENR investments, there is IHHI, a U.K. limited liability company, with controlling interests in the hands of Darden, Mazzarin0 (a long-time Cherokee officer), and Vaughn, who put in personal investments. That’s about control. Woodford invested $50 million, receiving preferred stock, and apparently committed $150 more if needed (as, for example, if IH had decided to accept the Doral demonstration as real and to pay Rossi in spite of the flaws — which testimony shows was their intention. That is, if they were satisfied. If not, blood from a turnip. Without solid evidence, independent, such that IH could then present it to investors (such as Woodford) to raise the $89 million to satisfy Rossi, paying Rossi was impossible. The limit of the Cherokee friends to personally raise, absent that clear evidence, was probably about $20 million.

IHHI is the sole owner of IH. IPH is a shell, holding IP, wholly owned by IH, and operated by IH. This is not a complicated structure. IH appears to be the operating company. This all seems fairly standard to me. To those who mistrust standard social structures, it seems like some highly suspicious mystification. Darden et al are venture capitalists, but with a twist: they are examples of such capitalists who seek to create activity that benefits the world, “socially responsible investment.” It’s quite appealing. But those who distrust the entire capitalist system see it from a jaundiced perspective, and the profit motive is seen as disgusting and highly reprehensible. Unless, of course, it’s Rossi who wants to make a profit. Think of the children with cancer!

IH has not attempted to “get [under control] the entire IP technology of LENR world-wide.” However, they clearly seek to cooperate with all players willing to cooperate with them. Some of their investments are under NDA, as is common with venture capital. However, there are major initiatives that have no connection with IH, funded well by other sources.

Darden et al. wanted to prevent with restraint tactics that it comes to the long-term test and they have tried with contract trickery to get out of the obligation of paying 89 million dollars.

What Rends is claiming does not fit with the disclosed facts in the case. “Fact,” legally, includes sworn testimony, and such will be accepted as fact unless contradicted. In a Motion for Summary Judgment, how a judge handles apparent contradiction would generally, be, my opinion, to seek to interpret the testimonies such that both are true. I.e, what underlying facts would allow both testimonies to be sincere, as to underlying fact, merely, perhaps, interpreted or interpretable in differing ways. A Judge could also decide that the weight of evidence in the case is strong enough to consider specific testimony false, self-serving, conclusory, or even perhaps perjury (presenting willfully misleading allegations of fact). But this is not a criminal trial.

Rends is here presenting his own fantasies as if they were fact. We will see that he then gives “evidence.” However, there is a vast body of material now available. If one holds some conclusion as true, in such a body of evidence, one will almost always be able to find some cherry-picked piece that could appear to support the conclusion. This is why, in civil cases, the standard of judgment is not “proof,” but “preponderance of the evidence.” This requires weighing all the evidence, and, in practice, in the U.S. court system, this is an adversarial process, it being assumed that both sides are represented by competent counsel, able to present all that is relevant for their points of view. I see no sign that Rends has, in fact, reviewed all the evidence. I have briefly seen, as a minimum, all of it, within certain narrow areas of the case and intend to complete this and present comparisons between the “IH story” and the “Rossi story” — and also for the third-party defendants.

Regardless of the evidence Rends may have seen, what he is presenting here is not fact, but interpretation, i.e., fantasy or belief or faith. However, I don’t use “faith” to mean “belief.” Faith is not about fact, it is a condition of trust, and, ideally, is unconditional, not dependent on fact. It is an organizing principle for behavior and can be highly useful, as long as it is not confused with fact.

All this was anticipated by Rossi and together with his lawyers and so they staged this fake event with JM-Products, to give Rossi the possibility to fulfill the contractual obligations, ie the long-term test, because Rossi could have waited for ever that Cherokee Investment Partner presented him the promised own customer and thus he would never have been able to fulfill the contract.

Here, Rends is asserting Johnson as “Rossi’s lawyers.” And what Rends is claiming here, if shown in court, is open and shut that Rossi fraudulently misrepresented the JMP situation, converting a contemplated long-term test (under full IH control, monitored by Rossi, instead of the reverse) into a Rossi-dominated and controlled faux test. Rossi had many other options, if IH (not Cherokee) had unreasonably delayed. In fact, though, the time for the GPT did expire and the attempt by Rossi and IH to extend the time failed because Rossi’s former U.S. licensee deliberately refused to sign it, and Rossi knew that and so did IH. IH, however, would have greatly preferred that Rossi stage a genuine test, and as long as they could monitor the test, as needed, it may have been acceptable to them. Rossi’s lawyer tried to present this, questioning an IH officer, as about the closing of an opportunity to earn the $89 million, but that was never closed. Rather, Rossi wanted to force IH to pay, without actually satisfying IH, while the ability of IH to pay was dependent on actual satisfaction, not merely what had guided their former behavior, to allow a possibility of success. Rossi attempts, then, to turn this into some vaguely reprehensible behavior, that they “didn’t tell him” of their problems. That contradicts sworn testimony, in fact. Rossi knew, but demanded complete control. When he excluded the IH engineer, Murray, in July, 2015, less than half-way through the test, it was sealed: IH could not possibly accept that test, regardless of the rest.

They were, effectively, willing to allow the possibility of a “fake customer,” if the actual test was clear enough, conclusive enough. IH was operating under multiple possibilities, one of which was that Rossi had a real technology, but was failing to disclose it fully, which is actually consistent with some Rossi testimony and pleadings. So maybe if there was a demonstration showing 1 MW, at high COP, they could then put pressure on Rossi to disclose it to them, and they would then give Rossi that money, or perhaps even more.

These are my interpretations, coming from a combination of the review of the evidence that I’ve been engaged in for the better part of a year, now, as well as my understanding of the field (LENR) and how venture capitalists — the best kind, called “angel investors” — operate.

Darden et al. were never interested in working with Rossi as an industrial partner, they wanted to get his IP and, above all, the formula for his fuel as quickly and cheaply as possible and then award licenses to other contract partners from the big industry and thereby become dizzying rich.

No sane investor would want to work with Rossi as an “industrial partner.” He is famously impossible to work with. If the Rossi technology were real, yes, they would then present the independent evidence they had gathered, the clear proof that devices made by the disclosed technology worked, and use it to sell sublicenses to manufacturing companies. Without that evidence, they could be committing fraud. These guys, however, are already quite “rich” by ordinary standards. IHHI expects to spend all the investment and to need more, before they have a dime of profit. There is no evidence that IH or the related companies have made a dime of revenue, so far.

At the end Rossi would have been still a marginal figure in this game.

Rossi would lose control, of about half the world market. That’s what IH was proposing to pay for, and Rossi had said that he would sell his secret for $100 million. So that is what they offered him. Did he sell his secret? What is really strange for me to see is Planet Rossi opinion that the technology was real, but Rossi did not disclose it, because IH was a collection of snakes out to steal his technology without paying fully for it. This theory — which does appear to match Rossi’s ideas (considering Murray as a “spy,” for example) — actually would completely justify IH’s refusal to pay, and, further, their counterclaims for breach of contract. It is as if the idea of Rossi Effect Reality cancels all other considerations. Call this the Peter Gluck Effect.

THHuxleynew wrote:

[a sober analysis of the Rends post. It contains a minor typographical error, obvious, referring to IH counsel as “Rossi’s lawyer.” THH mentions much of what I wrote above.]

Rends wrote:

[a clumsily edited presentation of a piece of evidence. Rends is an LF moderator, but does not have high forum editing skills, or isn’t careful about quotation.] What he gives is this, and I have corrected his misuse of the LF quotation facility:

THHuxleynew wrote:

The points above are not facts.

Quote [I.e., this is Rends’ presentation not that of THH]

“Our primary work now focuses on intellectual property development and on developing business partnerships. We want to acquire other technology rights and to find deployment partners that can implement. We want to see LENR technologies developed by larger, more sophisticated companies. We have visited two large technology-based manufacturing businesses to discuss limited, research-based licenses. We have traded drafts of such an agreement with one, and it appears they will sign something acceptable to us. Under the discussed terms, they will assess our technology both theoretically and through testing. They will have no rights to the technology, or very limited rights, and they will have to create a limited internal group with restricted access to information. That group will not share their knowledge or work on other LENR projects. IH will get their data and engineering work. Either of us can stop the process at any time. We have been contacted by several of Rossi’s unhappy licensees from outside our geographic territory. We generally have avoided such conversations. But this is happening because people see us as an aggregator of LENR technologies and a friendly supporter, which is consistent with reality and helpful to us. Our long term goal is to gather these technologies and researchers and get the technology out to others who can implement and do further research.” (Thomas Darden)


The link does not visibly reference the case document number (though it is in the fiull URL), but it does — kudos to Rends — at least give the page number, but that won’t work, because the file automatically downloads (at least for me.) This is a 8.2 MB file. I have started to warn users about large files on the Docket. They are crazy large, and I’m not sure why. I consider that sloppy legal work, slowing access to documents. In this case, though, thenewfire has combined smaller documents to make a large one. The actual file quoted is 167-2. (Rends’ page 17, of course, refers to the combined pdf page, not the page numbering within the file, . Every case document has headers giving the file access name and, if relevant, the attachment number and specific page number.)

page 17 in the file Rends provided is not where the quotation is taken from. Rends’ quote has been mangled, pieces are put together without indicating this with ellipses, and it is out of sequence.

This is the original case document in our archive:

0167.2_Exhibit_1 Email from Darden to Sloan, 3/7/2014 (OCR’d version)

We happen to have an OCR’d version. (Many Rossi documents are pure image, one reason why they are so large.) This, however, doesn’t have page anchors, so from our actual court PDF:

From PDF page 6:


We are all feeling anxious these days because we are in the middle of a very public test. The early results have been positive, which is a relief especially when compared to how we were feeling about the probability of success right before the test began. However, we are completely reserving judgment regarding the output, waiting to see the data and the Swedish professors’ conclusions.

Our primary work now focuses on intellectual property development and on developing business partnerships. We want to acquire other technology rights and to find deployment partners that can implement. We want to see LENR technologies developed by larger, more sophisticated companies.

Please reach out with any questions or comments. I would like to meet with any of you to discuss IH at any time, and I would enjoy getting the benefit of your insights. Thank you for your support.

This document was largely about the Lugano test. What Darden wrote in the bolded paragraph, with which Rends begins his quotation, as to “intellectual property development” was building and testing devices as instructed by Rossi — and with their own modifications, it appears, on occasion. They did not want to become a major manufacturer, nor even a major research organization. They wanted to develop business partnerships, which makes complete sense, given that facilitating business relationships is what venture capitalists best do.

Above that, though, was

PDF page 3


We have visited two large technology-based manufacturing businesses to discuss limited, research-based licenses. We have traded drafts of such an agreement with one, and it appears they will sign something acceptable to us. Under the discussed terms, they will assess our technology both theoretically and through testing. They will have no rights to the technology, or very limited rights, and they will have to create a limited internal group with restricted access to information. That group will not share their knowledge or work on other LENR projects. IH will get their data and engineering work. Either of us can stop the process at any time.

… [then there is lengthy material in this line, not quoted by Rends, but making it clearer. This is about how to protect intellectual property while encouraging and creating broader cooperation, something that Rossi never figured out, and hated. To Rossi, this was all considered disclosing his secrets to “competitors.” Such as Texas Instruments.]

We have been contacted by several of Rossi’s unhappy licensees from outside our geographic territory. We generally have avoided such conversations. But this is happening because people see us as an aggregator of LENR technologies and a friendly supporter, which is consistent with reality and helpful to us. Our long term goal is to gather these technologies and researchers and get the technology out to others who can implement and do further research.

By cherry-picking, changing sequence, and then by highly biased interpretation, Rends seems to imagine that what he quoted supports what he had claimed, as if no explanation is needed, it’s obvious. I don’t doubt his sincerity, what I doubt is his competence. This kind of quotation would never be tolerated in academic writing, it would be a career-killer.

Do this on Wikipedia, one could be warned, and if this was repeated, one’s account could be blocked or banned. But on LF, Rends is a moderator and was protected against frank critique by Alan Smith.

THHuxley wrote:

Would you care to extract the part of your post supported by that quote from the rest? I’d agree with it then…

I think you can support:

And there is Cherokee Investment Partners, Thomas Darden et.al., who by all means try to get the entire IP of LENR Technology world-wide under their control with an impenetrable network of sham companies, where they do not even know themselves, witch management position they have inside this companies.

And directly contradicting the implication you make, from your own quote:

Our long term goal is to gather these technologies and researchers and get the technology out to others who can implement and do further research.” (Thomas Darden)

IH has a long-term goal of breaking LENR out into the mainstream, it’s obvious. They have a plan that would place them in a prime position to profit from it, as well, but this is highly speculative, and they know that. From the scope of their investments, and from their relationship to other serious supporters of LENR, there is nothing in the business report written by Darden to indicate the kind of greedy agenda that Rends is promoting, though I also find the attempted condemnation IH for greed — because they were considering careful IP protection — while tolerating Rossi’s obsession with secrecy for the same reason (to keep it for himself) — to be hypocritical. IH Fanboy, at least, recognizes that part of the equation. Rossi was a terrible business “partner,” and even if he has a real technology, may have created conditions for rejection or worse.

However, given the pattern of lies that has been uncovered, most of the evidence for reality has vanished. It used to be that the strongest evidence for a real Rossi Effect, as assessed by the LENR public, and especially the LENR scientists involved, was the IH investment. What happened to that?

Apparent rule on internet fora: never admit error, even if it is completely obvious. On Planet Rossi, this is totally routine, and we can see this in the lawsuit, in the arguments over “Statements of Material Fact.” IH states Fact A, which is plain and clear and incontrovertible. Rossi replies “Disputed.” And then actually confirms Fact A, but adds alleged Facts B and C. The goal is to avoid implications from Fact A. There is a complete loss of distinction between fact and interpretation. Lawyers are trained to understand the difference (as are scientists, if the training is good).

So, Rends keeps arguing that he’s right, not admitting one single point, and it is behavior like this that makes LF weak compared with what it could possibly be.

THHuxleynew wrote:

And directly contradicting the implication you make, from your own quote:

Our long term goal is to gather these technologies and researchers and get the technology out to others who can implement and do further research.” (Thomas Darden)


“They will have no rights to the technology, or very limited rights, and they will have to create a limited internal group with restricted access to information. That group will not share their knowledge or work on other LENR projects. IH will get their data and engineering work.”(Thomas Darden)

By quoting out of context, Rends makes it appear that this “they will have no rights” is about general activity in the field. This is actually about a specific conversation with one specific research partner, a company that could possibly become a competitor, and this is classic, as to how to broaden cooperation while preserving IP rights. Rends is not presenting fact, but interpretation, and warped interpretation to boot. Understanding the distinction between fact and opinion or interpretation is crucial not only to law but to science and even to understanding life and living powerfully.

That is the strategy of Cherokee Investment Partners and it is all about Cherokee Investment Partners, when Thomas Darden acts it is for Cherokee Investment Partners even if they build up dozens of mocking companies structures in US and overseas (which he himself loses the overview), to hide it:

No, there is a clear distinction, legally and practically, between the acts of an individual as an individual and the acts of that same person as an officer of a corporation. It appears that Rossi may not have understood this, though there is a paradox: he seems to believe that it mattered what hat he was wearing, i.e., Rossi the person, Rossi the owner of Leonardo Corporation, or Rossi the Director of JM Products, and, in fact, Rossi seriously blurred all these roles. Darden did not, apparently. The interest in LENR appears to have been personal. Darden’s Cherokee partners tolerated it and perhaps even supported it, but Cherokee was kept separate, and, in spite of diligent effort, Rossi’s attorneys were unable, so far, to show any Cherokee investment in IH or IHHI. It was personal money from two Cherokee officers (Darden and Mazzarino), plus Vaughn (who is not a major Cherokee officer, in spite of some claims), and people like Dewey Weaver. Majority control of IHHI, the current corporate parent, is with those Cherokee people, but not Cherokee as a corporation, which is responsible to all its investors even if controlled by Darden.

There is no understanding of how corporations work, here, and that is typical of Planet Rossi, it follows Rossi’s ignorance, an ignorance that resulted, even under the best assumptions, in his being powerless in Italy against opposition. There were apparently major corporations that wanted to support him, but he rejected them because he did not trust them. Deja vu all over again.


Q:You say you’re currently working for Cherokee Investment Partners; is that correct?


Q:Is there — are you an owner of that company?

A:Yes, I am an owner of that company.

Q:What percentage ownership do you have?

A:I think it’s 56 percent.

This is true, and completely irrelevant. This was all known, at least in approximate outlines, before Rossi v. Darden. Cherokee has a set of owners, i.e., shareholders. IH had a different set of owners. And IHHI is likewise different. Cherokee does have a practice of starting independent LLCs. It will invest, according to sources, about $25 million to start one, and then the LLC will raise additional capital. In that case, Cherokee becomes a part owner of the LLC. These are generally risky investments in environmental remediation. Many of them fail. When they fail, Cherokee loses their investment, but is not on the hook for debts beyond that. This is how corporations work, “limited liability.” Shareholders are not generally responsible for the debts of a company, and anyone doing business with a corporation must understand this. Any attorney would have told Rossi this, if he’d consulted about the Agreement with IH. If IH makes no money from the Rossi investment, if the technology is not actually transferred, and if IH cannot attract additional investment, Rossi would not get his $89 million even if the “GPT” were perfect and properly done.

IH was not a Cherokee LLC. It was distinct. Cherokee did not invest in it. Individuals, some of whom were investors in Cherokee, or officers, did invest. This is all utterly unsurprising. Darden raises capital from friends, initially.

In the legal arguments, Rossi attorneys are arguing that technology transfer was not a requirement of the Agreement. That’s a narrow and disengenuous argument, as IH counsel is showing. In a practical sense, technology transfer, successful, was essential or the Agreement would fail, IH would be unable to pay. Darden and Vaughn and Cherokee were not on the hook, at all, and this was simple standard corporate business practice. Rossi’s attempt to pierce the corporate veil was actually quite premature. If Rossi had prevailed on a simple breach of contract claim, then, if IH had been unable to pay, he might have sued anyone who unjustly profited — except nobody profited, and finding investment is not profit, legally. It is similar to borrowing money, which isn’t profit.


The page number doesn’t survive into my system. I suspect that Rends might be reading those files from within his own blog. That is a combined document, 16.9 MB. These page references do not distinguish the original source files, from PACER and could become useless if the blog copies disappear. The page references here will work for any copy of the court pdfs.

The source is 214-10 page 12 which would be cited, in case documents, as DE 214, Exhibit 9, and the deposition page is 16, and this is all totally routine and unsurprising.

…and for an owner of such a big investment company is there a lot of “I don’t remember” in this deposition!

That’s an interpretation, not a fact. (It’s a comparison between a summary fact and some kind of expectation of what would be normal, though how Rends would know what is normal for the CEO of a $2.2 billion company is beyond me. It seems he expects every detail to be clear. If Rends actually wanted to look at fact, he would compile a list of all the “I don’t know” or “I don’t remember” references for Darden, and then compare them with the depositions of others. The underlying facts here are public record. There were no “I don’t know”s on that page. Rends is terminally sloppy, and not a serious writer.

And then Rends has, with no explanation:


Page 99 of that combined OCR document is the License Agreement, so … WTF?

And then Rends brings up the Chinese trip of Darden, as if this were new and relevant. It’s all part of the Planet Rossi trope, reflecting Rossi himself, that the Chinese invested hundreds of millions of dollars in IH. They certainly did not. There is some possibility, I would imagine, that a Chinese company was started, with IH cooperation, but it would be owned and controlled by Chinese, almost certainly. This is total fluff, completely off-topic.

THHuxleynew wrote:

[similarly to the above]

Rends wrote:


THHuxleynew wrote:

if you read your quote carefully:

I would advice you to read the court papers carefully:

He might take his own advice. He is projecting his own meanings all over them. They are not there with any clarity, and some are directly contradictory to established fact. Once in a while, someone debating like this on LF will actually look again and say “Oops!” Somehow we have it in our heads that this is defeat, because we think of the discussions as battles. In fact, saying “I was wrong” actually makes us, to the people who count, look good. So often we have it all backwards. And then we have the opportunity to thank someone for pointing out our mistakes. That makes us look really, really good! Even if the person who did it was being a total jerk. Take this from a 30-year on-line discussion veteran.


Q.· ·By whom are you currently employed?

A.· ·I work for Cherokee Investment Partners. I also work on behalf of a number of the different venture deals that we’ve invested in.


Again, this is 214-10 pdf page 5, document page 9. Rends, here, misreads the meaning. Who is “we”? Here he is speaking for Cherokee, which has created many ventures. IH is not a Cherokee venture, that’s quite clear. I will, below, explain what likely happened that led Rossi to think he was dealing with Cherokee. It’s understandable, but any attorney would have set him straight. And what is truly shocking is that Annesser did not set him straight, but fed the flames. For fun and profit?

One of these Investment is IH or better the mocking parade (Industrial Heat LLC, IPH International BV, IPHBV Holdings, IH Holdings International) “It’s a complicated structure” (Thomas Darden)

No, that was not what he was referring to, because Cherokee did not start them, Darden and Mazzarino did, using their own money, apparently. (Even if Cherokee money was transiently used, which I have not seen, that would have been a loan to the partners, almost certainly, for which they were personally responsible to Cherokee, not an investment by Cherokee in IH, which was a venture entirely outside of ordinary Cherokee business, and other partners would then have had a cause of action against Darden. Not something he would want to do!


Q.· ·Do you have several e-mail addresses?

A.· ·Yes.

Q.· ·Can you please provide those.

A.· ·Tdarden@industrialheatco, tdarden@cherokeefund.com, tfdarden@aol.com, tfdarden@yahoo.com.

And this is meaningless, it only shows that Darden has email addresses at these companies, which is utterly no surprise and which has no legal significance other than showing involvement.

So if you as an owner of an investment company are working for your own investment what do you call it?

It is called having one’s own life and investments in addition to working for a company. An officer on the level of Darden may have many such involvements, and if the other partners are okay with them, there is no problem. If the other partners are not okay with them, then there may be a problem to be resolved, between them. Only if there is, say, tax fraud, would there be a larger legal problem.

A company is not obligated by the actions of an officer if these are maintained as distinct, and by creating the Agreement as between Rossi, AEG, Leonardo, and IH, with an Entire Agreement clause, Darden clearly protected Cherokee, and the shocking thing here is that Annesser filed a lawsuit disregarding these legal basics, and that continued because fact was misrepresented in the Complaint. That’s gonna cause some damage for Rossi, for sure, and possibly for Annesser and Silver Law Group.

THHuxleynew wrote:

Could you define mocking parade?

I accept that Darden works for both Cherokee and IH, and that Cherokee have invested in IH. As have Woodward.

Darden does work for both Cherokee and IH. However, Cherokee has not invested in IH. Woodford also has not invested in IH, but closer: Woodford invested in IH Holdings International, Ltd (IHHI), which is the sole owner of IH, having bought all the IH shares, paying with IHHI stock. THH, be careful. This is actually an important point in the lawsuit. Rossi claimed that Cherokee owned IH, even claimed it was the sole owner, but this was never true. There is some evidence that I have not yet reviewed about how payments were actually made. However, Cherokee owns no IH or IHHI stock, there is a complete list of investors on the U.K. corporation site. Rends thinks this is all hidden, but it’s actually quite open. I first started discussing the situation when Sifferkoll commented on LF with a completely incorrect analysis of the UK corporation figures. He did not understand the documents correctly. (Woodford bought preferred stock, valued at $45 per share, whereas other stock had a par value of $0.01 per share. Woodford was not buying control and clearly trusted Darden et al. They were investing in a long-term project, and not expecting any quick profits, if any profits at all.

The business purpose of IHHI is not much understood. It is really getting feet wet, becoming active in a field that they are betting will eventually become profitable. They would want to be ready, they would want to make any mistakes now, with relatively small sums at stake, instead of later, when it might be billions of dollars at risk.

Would you like to answer my point about external research companies? Without such restrictions, how could IH validate LENR technology? It is far from what you interpret, and sort of necessary for anyone except Rossi who does not validate technology.

THH keeps trying to create a sane conversation.

Rends wrote:

THHuxleynew wrote:

Could you define mocking parade?

Formation of a company braid to for pretending of size and cover-up of responsibilities.

That’s incoherent English. He may have meant “charade” (third meaning). There is no cover-up, and no pretense of size. IH was created and funded with an initial stock offering that raised an immediate $11.5 million to be paid to Rossi, with a total stock offering apparently at $20 million. “Cover-up” of responsibilities could possible be based on a claim that Cherokee was “really” responsible, but that is a dead claim that only survived in the lawsuit because Rossi had claimed (or at least implied) that Cherokee was the sole owner of IH, which was far from the truth. This was an ordinary setup of an LLC for a specific venture. What is shown by the Planet Rossi tropes around this, the Sifferkollian conspiracy theories, is the ignorance of the denizens of that planet, including Rossi himself, who, if he was sincere in his claims, showed radical ignorance of legal and business basics.

THHuxleynew wrote:

I accept that Darden works for both Cherokee and IH, and that Cherokee have invested in IH. As have Woodward.

This is quibbling!

And this is spit.

THH attempts to be conciliatory, and Rends complains. What Rends is doing is continually moving the goalposts, it’s called. Rends claims A. THH points out a problem with A. So Rends claims B and C, not addressing the problem with A. So THH addresses those alleged facts, and then Rends alleges D and E and F. This is how fanatics argue. This is not the behavior of those who seek learning and cooperation. It is how Rossi thinks, in fact, and is very much how Rossi’s counsel is arguing his case, in the MSJs.

There is a vast universe of possible points to be made, but if one never focuses on specifics, all that is created is confusion. Rends shows no sign of following the arguments in the case, but only his own ideas and reactions to details he thinks important, and mostly these are about impressions confirming his belief that IH is a bunch of scuzzy thieves. Even if the bulk of the evidence in the trial, admissible evidence, shows something quite different.

THHuxleynew wrote:

Would you like to answer my point about external research companies? Without such restrictions, how could IH validate LENR technology? It is far from what you interpret, and sort of necessary for anyone except Rossi who does not validate technology.

Now, notice that Rends does not actually answer, other than a misunderstanding of the point. I would express “validate” as “obtain independent validation,” which would need to be validation independent, not only of Rossi, but of IH as well. In order to raise the hundreds of millions of dollars without risking investment fraud claims, they would need that. And they appear to have taken steps to do that, with Rossi generally complaining about it.

The plant was, so to speak, in its possession, on Cherokees land in Raleigh North Carolina.

Yes (though I don’t know about “Cherokees land,” the Plant was in the possession of IH, but Rossi was there, working for them for a year. It is not clear that Rossi was doing what the agreement contemplated, i.e., ensuring technology transfer. Darden complains about this in one document.

The indications are in what I’ve seen so far that Rossi refused to start the test, or a meaningful alternative, and wanted to focus on improvements.

Why did they do not perform a long-term test there, as foreseen in the agreement with Rossi and instead try to develop other devices, that are of no value to Rossi, but only for Darden et.al. (see above, how they tread other partners)?

Again, Rends has not realized that the “above” comment was only about a specific situation, with a commercial partner who could possibly be a competitor. What happens in Rends’ mind is that all this is mashed up and fit into a mold in which he believes.

Notice, again, the moving target. Instead of focusing on one issue, where resolution and at least some kind of agreement might be possible, Rends keeps asserting more alleged facts. The case documents explain why that “long-term” test did not happen. Maybe Rends would benefit by actually studying them and learning. How would IH answer the question? If one doesn’t know how a major party would answer a question like that, one doesn’t know the case. Any neutral analyst — or partisan analyst who wants to also see matters from the other side, which any good attorney would want to do — would know that Rends is telling the story from one side only, mostly the Rossi side, though he does stray from that below.

Because they have not found a customer? Ridiculous!

Of course. But they did find a customer and Rossi refused to cooperate, and instead argued that the “customer” he’d found in Florida would be much better. And he obviously created the impression that this was Johnson Matthey, based on many, many evidences, and on that I have seen what is the strongest evidence of perjury that I have noticed in the case.

Darden et al. did not want to pay the 89 million, that is the only reason.

That is a fantasy contrary to all the evidence in the case, other than the obvious fact: given the conditions that had arise, for many reasons, they were not going to consider Doral a GPT and pay. That is not a reason why they didn’t run the GPT. Rossi has made a big fuss over them not explicitly, in writing, telling them that Doral was not the GPT, until the beginning of December, 2015, but Rossi never told them, in writing, that it was, much before then. Nor did Rossi ever demand that the GPT start in North Carolina. We have seen no documents where he complained about the delay.

The entire concept of the GPT, though, was Rossi’s, and all the difficulties with the Validation Test and the later GPT were created by his crazy idea of a megawatt plant based on a hundred units that were not, themselves, thoroughly tested. One device design, tested exhaustively and independently, generating ten or twenty kilowatts, would have been worth the $100 million or more, and IH showed, over and over, that they were seeking that, and the Rossi claim of fraud, that they never intended to pay, is entirely contradictory to the evidence available in the case.

They had it long time in their hands to test the plant under self-chosen scientific criteria, with self-chosen experts, extensively according to the agreements and have not done it.

We do not know what they did, whether they fired up the plant or tested individual reactors from it. Perhaps there is evidence in one of the depositions, but it appears that IH attempts to test the technology did exist and, in spite of some initial results that more or less followed Rossi’s demonstrations (and probably used similar heat verification technology, they found no confirmed excess heat, or certainly, if any, far less than required.

What seems likely at this point is either that Rossi was a fraud from the start, or that he found ways of measuring power, and fooled himself with them. The possibility of the system being “flooded” was pointed out in 2011, so this was not new. So if we want to create “why not”s,

Why was the Rossi Doral test not explicitly designed to address that and other possibilities?

Why was it necessary to create a secret customer process, so that there could not be independently verified measure of plant output, by seeing how the power was dissipated?

IH was claiming inability to confirm performance. Why did Rossi not work carefully with them to insure that they were applying the technology correctly? Were there differences of opinion about how to measure heat? We know that Rossi and socks still claim that the Lugano test was correct. It would have been trivial to address those problems with independent measures. Why was this not done?

Rossi’s test in Florida is, of course, not a clean thing in the sense of a proper business deal, but under the given circumstances, at least an explicable organizational act that is even not denied by Rossi in his deposition in court.

It was denied until the evidence became overwhelming and he’d have had to perjure himself to continue his own charade. Rossi clearly lied to obtain the agreement to move the Plant to Doral. Rends may think this “explicable,” and it is, but only if we imagine an utterly incompetent and greedy Rossi who thinks like Rends. Rossi does actually state that he was desperate to get a test going. The consequence of deciding to lie in order to accomplish that goal is that the scheme fails badly, he could lose everything.

But here we have to separate precisely, between the business on the one hand side and the test results of the plant and the evaluations and the report of Penon on the other.

Who is “we” and why do we “have to” do what Rends suggests? Rossi v. Darden is the subject of the LF thread. Rends wants to talk about the plant performance, but the data we have on the Plant performance has all been contaminated by the participation and control of Rossi, now known clearly to be willing to mislead and deceive.

And Rends is avoiding directly engaging with THH, but instead keeps adding new considerations. This kind of behavior is why many LF discussions go nowhere. It’s terminally fuzzy thinking. THH knows, and wants something better. He is welcome here.

To say that the report must be faulty, or even preposterous, is not the solution, because with the means available to us from the outside, we simply do not have the possibility to produce evidence and therefore it is all but a presumption.

Rends is neglecting fact, when he began this excursion by claiming to point to it. We have facts, now, about the Doral circumstances and conditions, and many facts that do, actually, relate to plant performance, but absent a willingness to do the work of careful analysis — distinguishing established fact from merely claims — agreement will be elusive.

The discussion went on, and may, indeed, go on and on. However, I promised to give my theory of how the idea arose that IH was Cherokee.

Back in 2012, Rossi apparently tossed Darden out of his office, not interested in talking with him, but then found out that Darden was the principal officer of Cherokee Investment Partners, a $2.2 billion corporation. That got his interest.

Darden spoke of “we” without being very specific. Cherokee had gotten him in the door — and this was reasonable, this was not some random bozo with merely a few million at most to invest. Darden took no steps to distinguish his activity from “Cherokee.” However, it is quite possible that he never represented that it was Cherokee that would be investing. Rossi simply assumed it.

This would be an example of what goes around comes around. Rossi has often set up situations were he would say something that was interpreted in one way, but where he could later point out that the reality was different and he had not actually lied and the errors were made by others. He’s attempting to do this with the Johnson Matthey issue, which is not going to fly, because there are so many evidences and comments from Rossi, and the Bass emails nail it. Bass believed that JM was involved, and where did he get that idea from? He only dealt with Rossi, outside of a few conversations with IH people and investors (all heavily laced with instructed pretense).

However, definitely, Cherokee was not going to invest. Nevertheless, Darden is a principal at Cherokee and this fact would mean that Darden has access to massive investment resources, some of which might be tapped later, if necessary. So Darden being involved with Cherokee could be relevant to an ability of IH to voluntarily pay Rossi the full $100.5 million. Not as Cherokee being legally obligated, but as a matter of business connections. Darden may have made some assurances to Rossi based on that concept, and Rossi remembered it as if it were a promise on behalf of Cherokee, and that’s what he told Annesser. “The snakes lied to me!”

What Rossi believed, if he is telling the truth on that, was legally preposterous. If Cherokee was the sole owner of IH, with effectively full control, then Cherokee could become responsible for the debts of IH, I think. But this was not the case, ever.

IH owns IPH and thus the distinction between them is not crisp. Why was IPH set up? Some have suggested tax motives, and that seems possible to me. There is nothing wrong with this, and this was especially in order if other IP was being purchased or developed. LLCs are pass-through organizations, as I recall, and their profit is taxable to the owners, but, by the same token, their losses will reduce the income of the owners, so they are a kind of tax shelter. If the losses are real, those deductions are clearly allowable and not tax evasion. One way to look at this would be that if investment in LENR is actually a charitable donation, it becomes fully deductible, and immediately as soon as the losses are booked (that tax year). I’m sure that Darden et al would thoroughly understand all this and much more.

By selling the IP to IPH, a large deduction was taken as a loss, based on some estimate of actual value, probably. The $10 million investment was mostly expensed, I’d think, but I am not at all sure.

Mats Lewan buys condo in Cloud Cuckoo Land

Well, that headline is perhaps a bit dramatic. But, I’ll confess, I was shocked by seeing the following from someone whom I had treated as a friend, long into the past (back in my Wikipedia days), and with whom I had positive correspondence.

I had been considering writing a post about a Lewan blog entry that was mentioned in a comment here.

Rossi’s engineer: ‘I have seen things you people wouldn’t believe’ (November 25, 2015)

After an interesting interview, which reveals that Fabiani clearly believes that Rossi’s work is real — and that he has seen amazing things — Lewan gives this:

Since mid-February 2015, Rossi and his US industrial partner Industrial Heat are running a one-year commercial trial on a customer’s site with a heat plant producing 1 MW. The plant is made up of four 250kW modules, each based on E-Cat technology. Unless something unexpected happens, the trial, which is controlled by a major independent third party certification institute, should be concluded by February or March 2016, and the results should then be presented.

In the comments, Lewan explains a bit:

November 25, 2015 at 11:25
Everyone I have talked to confirm that a major independent third party certification institute is involved in the control of the 1-year test and that this institute will also be able to confirm the results when they are presented. I have no further proof though.

Mats does not tell us — at all — who “everyone I have talked to” is, but we know he talked with Fabiani, who would know of the involvement of a “major independent third party certification institute,” and we know he talked to Levi, who might have known of such. And did he talk with Rossi?

Since there was no such institute involved, only Penon, we know that Lewan relied on unreliable sources. He does acknowledge having no “further proof,” but that’s weak. It implies that the evidence for what he wrote was strong. That’s not the only problem.

IH allowed the installation, but as a sale of power, and only secondarily as a trial, with the idea that if Rossi clearly demonstrated to IH that there was substantial power generated, they might voluntarily pay him $89 million on that basis. The Doral demonstration was not the “Guaranteed Performance Test” of the IH-Rossi-Ampenergo Agreement, because Ampenergo explicitly refused to sign the Second Amendment allowing the GPT to be postponed. Rossi covered up this fact in his Complaint, though it was obvious from the start that the Ampenergo signature was missing. The Rossi attempts, in his pleadings, to convert some kind of vague consent to a test into the specifics of a GPT, even though there were obvious elements of a GPT missing; and not only signatures, but matters of substance, such as the ability of IH to actually observe the “test” in detail. Rossi excluded IH experts, twice (in July and in December).

The whole thing stunk, from lies about the customer at the start, to what appears now to be a hastily-invented “heat exchanger” that nobody saw, and that would have been very visible. Yet Mats is still stuck in his glorious past, where he was the world’s foremost confidant of Andrea Rossi. He wonders about conflict of interest, but has a huge one, a subtle one. When people criticize Rossi, or threaten his interests and plan in some way, he cuts them off, and he had done this over and over, and Mats knows this behavior. If any of the Lugano team had questioned what Levi and Rossi were doing (and Rossi was apparently there the whole time, and the Swedish team, not, not what the Lugano Report implied), they’d have been history.

Mats has never cleaned up that mess. Believe me, if I find a major error here, even years later, I will at least annotate it. That is what a responsible journalist will do, if he or she can.

So then we have this sequence on E-Cat World:

Critique of the Smith Report from the JONP

Mats LewanSunday, April 9, 2017 9:54 AM [post time extracted from HTML]

I think there’s a list of advisors to IH somewhere. Anyone remember where it is?

Andreas Moraitis Mats Lewan • a day ago

214-23, p. 7.

That is here. It was actually a list of potential places for investment, and then included a list of advisors. None of this was a description of actual payments. Jed Rothwell is on the list of advisors, and has continually maintained that he has received no payments from IH, but this was used to, once again, accuse him of being paid by IH. He is known to have visited them in North Carolina, and that was then misinterpreted to indicate that he had visited the Plant in Florida (which he has always denied, and which would then make a certain IH response to interrogatories into perjury — unless Rossi arranged the visit, which seems a tad unlikely, given that Rossi excluded Rothwell from visiting him in Italy years before — and in spite of that, behind the scenes, Rothwell was a supporter of Rossi, arguing that people he trusted had seen the technology and it was real). Rothwell later reassessed that opinion, apparently after seeing data from Penon, which had all the obvious defects that have become public now, with the court filings.

Lewan is clearly not using the Rossi v. Darden resources here. They may be searched. The core page is the Docket page. Yes, it’s a huge amount of information. So resources are being created for analysis. That takes time. We just had a huge amount of data dumped on us. Much of it is redundant, but then, much is not.

The best organization is probably found in the Motions for Summary Judgment, where each party puts its best and strongest case forward. I was going to start with an analysis of the Rossi MSJ, but the exhibit references were such a mess (almost all incorrect), and it depended so strongly on a legal claim that has failed, the attempt to exclude all IPH claims based on an allegedly defective corporate deposition, that my opinion became that making it the core of a study would be a waste of time, so I started with RvD: Study of 203:IH Motion for Summary Judgment

This document also includes all the support paragraphs from DE 207. This is the case as it appears from the IH Motion. Anyone who actually wants to understand Rossi v. Darden would do well to study this. But it’s huge, still. I will be going through it, point by point and the first analysis will be looking for what is clearly established as fact, and what is not, what might remain legitimately controversial. At first impression, some of the IH claims are that, not as clear as required for Summary Judgment, they might require determination of fact by a fact-finder, i.e., a jury. However, there are many layers to this IH strategy, and the strongest aspects are likely to blow the Rossi case out of the water, leaving only the counterclaims active. At that point, settlement becomes far more likely.

Now, to come to what astounded me, though I’d certainly seen signs a year ago, that Mats was falling for a conspiracy theory, in spite of his warning to Sifferkoll.

Mats Lewana day ago

Anyone knows what the rules are for presenting evidence that hasn’t been brought up earlier, when the case goes up in court in June?

Josh G Mats Lewan • a day ago

Go ask Abd. Double dare you. (-;

Mats Lewan Josh G • a day ago

BTW do we know if Abd works for IH or not?

Once upon a time, Mats was a reporter and would have asked me that question directly. Now he asks with a “we” that is a narrow group of people. IH would obviously know if I work for them, and so would I, so, for starters, I’d be excluded from “we” or the question would be meaningless. This question was brought up many times, and Rossi himself accused me of being a paid puppet.

At one time, Mats was officially staff at LENR Forum. That disappeared. This blog is open for anyone to comment, and author privileges will be granted to real people, and Mats is real. Even if a bit deluded. This went on.

Josh G Mats Lewan • a day ago

Not sure but I don’t think we’ve seen any evidence to support it other than his quixotic behavior on IH’s behalf. But I stopped following things for quite awhile until the mid-March filings. So not sure.

SG Mats Lewan • 19 hours ago

I think he claimed that he has been paid to blog by somebody, but not IH.

I am attempting to respond there, the editor keeps locking up. But this would be it:

I suppose I should correct this. I have not been “paid to blog” by anybody. I was collecting documents and putting them in the filespace for the newvortex list, and an attorney, not connected with IH at all, offered to pay my PACER expenses. I have received a total of $50 so far, I may ask for more, and another person, also not connected with IH other than being long-term interested in LENR, has offered additional support, enough that I will probably be able to go to Miami to cover the trial if it happens. Enough to cover my travel, I may still need more to cover details like hotel.

I later started the blog when I was temporarily banned on LENR Forum, and then got serious about it when the newvortex archive became unusable (a yahoogroup problem) and LF banned me “permanently.” (Fun question: for what?)

One of the functions of the blog is to build analytical resources, as distinct from endless debate that goes nowhere, i.e., Blog Normal. This is intended long-term for general cold fusion issues, but is currently being used for Rossi v. Darden.

Mats would be most welcome as a participant, but he lost his status as a neutral analyst some time ago. He could recover, if he chooses to. It would take some work, and his excuse has been that he is too busy. It would be fun to guide him through the maze of documents in the case. One step at a time, which is rarely done. Mostly people start with conclusions (on more than one side — I hope that readers realize there are more than two “sides” here).

As to Mats’ question, others have answered reasonably, but not necessarily addressing the point clearly, and Mats himself summarizes it incorrectly:

Mats Lewan GiveADogABone • a day ago

In fact, I don’t interpret it as a blanket ban. Rather that most of the evidence is presented during discovery. But it doesn’t exclude some evidence to be presented in court, as long as it doesn’t contradict earlier depositions or testimonials, I guess.

It’s somewhat shocking that Mats will guess, but he declared previously that he did not have time to do actual research, the kind expected for a journalist.

The reality is that witnesses will be on the stand, and either side may ask them questions, and they may answer outside of what they said before. However, if what they say is new, an attorney may object. To introduce new evidence will require the permission of the Judge. It is not exactly a “blanket ban,” but failure to disclose evidence to the other parties can result in sanctions, all the way up to total dismissal of a party’s case.

“Contradiction” is not a characteristic of evidence, but of the assessment of evidence. Evidence could not be excluded based on contradiction. Rather, if there is contradiction in admissible evidence, there can be a question for a jury to resolve.

However, what may not be realized here is that the Motions for Summary Judgment do not necessarily disclose all the evidence. Rather, there is a huge volume of evidence — truly enormous — that was disclosed in discovery. As long as it was disclosed, it may be introduced at trial. What is disclosed in discovery is generally attested under penalty of perjury.

IH has adduced enough evidence, my present opinion — remember, I am in process of studying the materials — to obtain summary judgment on the core claim of Rossi, breach of contract re the $89 million, and if that claim is gone, so is the rest of his lawsuit. Because, then, there would be no trial on that claim, we can expect Rossi to go all-out in his Reply. We do have that Reply at this point, but I have not studied it. I will, comparing each point with the evidence we have.

Drama ensued. See the comments below. Someone apparently spoofed Mats Lewan, using his name and, most importantly, his real email address, so that the avatar displayed would be picked up from Gravatar, which we have enabled. The second post of this user started out more or less innocuously, but then the user edited it to add a gross sexual reference. Mats complained on LENR Forum, which is a bit odd, since I’m banned there and don’t necessarily see everything. However, THHuxleynew pointed out that post here. There are some aspects of possible interest in what ensued.

On LENR Forum, Mats Lewan wrote (creating a new topic)

Abd ulRahman Lomax yesterday posted a blog post at http://coldfusioncommunity.net…ndo-in-cloud-cuckoo-land/ commenting some of my actions and reports.
Under the blogpost there are comments made by Mats Lewan.

These comments are NOT made by me.
They are false and fraudulent, made up in short, and if Abd ulRahman Lomax reads this, I expect him to delete those comments immediately.

Apparently I read the second remark before it was edited to add the truly offensive remark. The rest of the material in those posts matched, at least to a degree, what Mats had posted elsewhere. Impersonation is still a major public offense, not to be tolerated. I might have some view that I might express in one context, but may not want to express it in other contexts, and that should be my right. But trolls may disagree.

THHuxleynew wrote:

Mats – perhaps you could post this on Abd’s site. It will immediately let you do this – I think. Then he would certainly get it, and also he could check IP etc… Furthermore the correction gets seen faster than if you wait for Abd.

THH was completely correct. Mats’ response was relatively unskillful. The basic harm — someone thinking that was him — could be most quickly addressed by Mats himself posting a comment exposing the impersonation, and confirming this by email from his known email address. Because Mats has not posted, his first comment would need to be approved, though it might be approved simply by using that same email address. (It was on his personal domain, and he obviously uses it wherever the gravatar shows up.)

Posting on LENR forum then drew more attention, exactly what trolls often want, and the obscene comment was then repeated there, and obviously was read by moderators who didn’t care.

Alan Smith wrote:

THHuxleynew wrote:

Mats – perhaps you could post this on Abd’s site.

I don’t expect that to happen in a hurry.

Classic Alan Smith, useless snark. Why not? I used to have direct email communication with Mats. Has Mats fallen into a Krivit hole? I will agree in one way, it is odd that Mats did not communicate directly with me. Maybe the fumes on Planet Rossi finally created too much mind-rot. It would also have been somewhat effective if Mats had responded to my comment on E-Cat World, in reply to his question there, since I get notification of responses.

THHuxleynew wrote:

Alan Smith wrote:

I don’t expect that to happen in a hurry.

I’ve done it for him. Though why he should not be able to do it himself is beyond me.

And indeed THH did post here, something actually useful. Alan Smith continues to emit smoke:

Able but unwilling I expect. I would be too.

Yes, Alan would be. Why? For the same reason that Alan Smith banned me from LF: he can’t stand my presence, he knows I can see what he does. So all this does come up:

AlainCo wrote:

Abd answered and leaked the IP of the fraudster


[This link is a bit better, juicier. –Abd]

If there is disagreement with Abd, I estimate it is more about Doxxing/Transparency/Shaming vs Privacy than about tolerance to fraud.

Thanks, Alain. Zero tolerance here for fraudulent posting (which is not about disagreements, nor would it be about ordinary socking. Socking that impersonates another is generally illegal, and Mats had good reason to expect me to correct the situation. He wanted me to delete it. Because there were responses, I elected to not delete, but changed the user name to “(spoofed) Mats Lewan,” and used strike-out for the text, only actually deleting the obscenity. I think it is of interest that someone would spoof Lewan, and I think that it could be useful to find out who that would be.

And that is why I revealed the IP. I also have more data, obtained from the server logs. True administration at LENR Forum would very likely be able to identify the fraudster, at least with other accounts. However, what I found was that not only do moderators there not have access to IP information, neither do administrators; someone has server access, and that is probably Barty and the Owner. So if Barty wants to address this, he could. I’d happily correspond with him. I have also provided the information directly to Mats.

This is all standard stuff for WikiMedia Foundation administrators, and I was one. Privacy is respected, but the right to privacy is lost when one commits certain offenses. (Access to normally private IP information is confined to Checkusers and others with that level of privilege on WMF wikis, but any stand-alone blog owner, running on their own domain, has access to that information, it is in the raw server logs.)

LENR Calendar wrote:

THHuxleynew wrote:

I’ve done it for him. Though why he should not be able to do it himself is beyond me.

Abd wouldn’t be able to tell which user is the real one. Mats here has been verified.

Oh, I was able to tell. I already had been suspicious about the IP, but Lewan accessing the internet from student housing wasn’t impossible, so I didn’t reject the post on that basis. Yes. The LF Lewan account is long-standing, thus verified, which I immediately knew; however, at the first plausible allegation of spoofing, I’d have quarantined that post so that it could do no harm, pending resolution. I also have had direct email communication with Lewan, and verification would be trivial.

There is no rush, but perhaps, out of this, Lewan will start to help clean up the mess that he helped to create. I’d be happy to assist. One easy step at a time.

How is the weather on Planet Rossi?


Peter Gluck posts links to his blog in many places, and I saw this yesterday. I’m mentioned (the day before). Speak of the Master of Hot Places….
EGO OUT, April 6, 2017

A year of litigation- the scales of Justitia have  great loads of stuff- facts and assumptions. Facts have weight the assumption not- just now a selection/separation process takes place. 4-5 months and we will have the Verdict.

Indeed. However, we might have some verdicts, at least, within roughly a month, how long I expect it will take to handle the three pending Motions for Summary Judgment.

For the time given, the IH party is making huge efforts to kill the Penon ERV Report.

Actually, this is Peter’s myopic version of what is happening. Continue reading “How is the weather on Planet Rossi?”

Trying out hypothes.is with LENR Forum

I’ve been seeing spots of interest — and bubbles of mishe-gas — on LENR Forum and missing the hot format of immediate comment, even though, long-term, what I’m settling into here is much more useful.

I started using hypothes.is for commentary because Steve Krivit filed a copyright violation notice on a copy of a page of his here. It’s an interesting tool.

I will create tools here to link to my hypothes.is comments (or others if contributors take it up), and here are some to start. (If you don’t see annotations after following a link, look for a small “>>” link at the top right. That should open up annotations.)

Look down the page as linked through hypothesis.is. The page should show highlights on text on which there is public comment. With a hypothes.is account one may create comments or reply to existing ones. It’s a browser extension allowing one-click setup of annotation of any web page.

The links below are actually all the same, they point, through hypothes.is to the same LF page.

response to Zeus46.
response to joshg
response to IH Fanboy
comment on Paradigmnoia just giving a link

And more.

and then  The next Rossi v Darden page.

Comments may be made here, or, with a hypothes.is account, comment replies can be entered with the annotations.

More annotation:

Playground 58
Playground 59
Playground 60

More Rossi v Darden threads on LENR Forum

Rossi vs. Darden developments 143
Rossi vs. Darden developments 144
Rossi vs. Darden developments 145
Rossi vs. Darden developments 146
Rossi vs. Darden developments 147

Still not caught up. When I do, I may add information to the above, if I find some annotation worth calling attention to. Anyone may also do that in comments below. Or, hey, you could annotate our pages.

My annotations may also be edited or deleted, comments here, or as replies to annotations, may include suggestions. Be nice, and you will be respected.


Looking at the above links today, there are problems. There are now “orphan” annotations. In at least one case, it appears that LF admin may have deleted a post, which then causes all subsequent paginations to be off. The post number appears to shift, but I’m not sure of that yet. LF is a moving target. So hypothes.is may not work reliably. There are also, it appears, hypothesis.is bugs. A URL with “no follow” in it was generated for an LF page, and the URL was badly formed, with an extra quote mark. I’ll be looking at this.

I attempted to annotate this post by THH.   I can load this in my browser, which has the hypothes.is extension enabled, and I can see my annotations. However, hypothes.is generates this URL for the page:


This, as would be expected, loads the root page for that thread, and then my annotations are shown as orphans, with no reference.

If I, instead, generate the link for a specific annotation, say the first on that post, I get


I get the annotation, all right, but orphaned, and the original page is not displayed, rather the root.

If I go to the original page,


I get a message that “there are no annotations in this group.” However, if I follow the link to the post, I can then see them. There are two annotations shown as orphaned. I recognizer the original post for one. It was not on that page, it was on one of the pages listed above. I think. This was the annotated text: “This notion that opinions are somehow magically equal or that any notion you dream up is somehow valid because it is your opinion is new-age nonsense”

This page has records from the hypothes.is feed, for me:


This was the post:

Abd 3/27/2017 8:49:04 PM #

This notion that opinions are somehow magically equal or that any notion you dream up is somehow valid because it is your opinion is new-age nonsense

Hey, I’m the New Age, my first teacher actually wrote a book, “This is the New Age, In Person,” and Jed Rothwell is sometimes a beknighted curmudgeon. However, he is also an expert on all things LENR, world-class, even though he is “only” a writer and LENR librarian. Librarians learn a lot.

The real New Age isn’t each and every stupid idea. It’s humanity waking up.

The quoted material at the top is from Jed Rothwell.  With some effort — google doesn’t find it, so I manually went through Jed’s contributions, I found the post: https://www.lenr-forum.com/forum/thread/4745-rossi-vs-darden-developments-part-2/?postID=53407#post53407

With that URL loaded, the comment shows. But the comment actually is on a quotation of Jed: https://www.lenr-forum.com/forum/thread/4745-rossi-vs-darden-developments-part-2/?postID=53413#post53413

The way that LF handles paging and links apparently breaks hypothes.is. I’m sure LF staff will be crushed, absolutely crushed, to realize this. The annotation returns a direct link of https://hyp.is/V8qVJBNQEeeNLe9YiXMQdw/www.lenr-forum.com/forum/thread/4745-rossi-vs-darden-developments-part-2/

which returns the annotation, with text in strike-out, since it isn’t on the loaded page, which is page 1 of that thread. I’m going to see if there is a workaround here. Meanwhile, back to the drawing board and some real work. Darn. I thought I could just add snarky comments to my heart’s content. Maybe my heart doesn’t like snark. Wouldn’t surprise me.


This is related to what is happening, perhaps. My guess is that the pages changed enough to break the annotation links for some annotations. Something else is going on with the inability to properly link to annotations that are still connected with the necessary page load. The problem is difficult, and there is apparently a current effort to support previous page versions, where orphans are caused by page changes.

An obvious cause of page change on LF could be post deletions, which would be enough to break some remaining annotations because the page number would change and also the post number (which is calculated at display time, it is not fixed) — the site-wide post number is constant, but the number of a post within a thread is recalculated based on all undeleted posts.

Some user or mod edits might also affect some annotation anchors.

Posts deleted by the author remain in the LF thread with a small-text note. Ordinary moderator deletions also remain, but some mods elect to totally delete, which then changes pagination and post thread number, and I previously saw that LF staff didn’t care about breaking incoming links (and took steps to break them, deliberately, which effort was abandoned when a workaround was created here).


We see what we want to see

Too often. If we have a firm position, and we are faced with a massive body of data, and the data dumped into Rossi v. Darden was massive, we will scan over it looking for “facts of interest.” If we are not careful, and some are not at all careful, we will pick facts that appear to confirm our prior views. It’s called “confirmation bias.”

I’ve pointed out an example in How Planet Rossi reads fact. Here is another from the same user, same deposition.

IH Fanboy wrote:

Remember the mis-matched water meter serial number FUD that was pushed on all of us here? As if this was proof of fraud?

All just one big mistake by Murray. 215-03, pages 263-264.

This was classic. I’ve called it trolling, based on the actual meaning of “trolling.” Even though I do think IHFB is “sincere.” Nevertheless, he makes statements that are evidence free, or that don’t actually match the evidence, if it is cited. Naturally, IHFB doesn’t link to the document and this is a huge PDF file, but at least it is there. However, IHFB is actually comparing two alleged facts. One is what is in the deposition and the other is what was “pushed on all of us here”? That is largely meaningless without any actual citation or quotation, but trolls are not interested in evidenced and sober discussion, and IHFB expects to be attacked.

What happened? Continue reading “We see what we want to see”

How to find Rossi v. Darden documents

On LENR Forum, Zeus46 wrote:

Is there a Barry West or Dewey deposition somewhere amongst this document avalanche?

Someone might point out to this fellow that the docket reference here is annotated. On that page, a browser search for Barry West immediately pops up the deposition. It’s about 92 pages out of 235.

Dewey Weaver is mentioned in a number of annotations; the third is the deposition. Unfortunately, it’s just six pages out of what must be more than 250.

I plan to extend and expand the annotations.

I’d go crazy if not for that index. Okay, okay, I’m crazy anyway, spending days creating study documents from the Motions for Summary Judgment. But this is how I learn stuff, by often-boring exposure, I become familiar with it. (Those documents should be ready by the end of this week. The core of the Rossi study is published as a draft, but when I realized there is a good chance that whole thing will need to be rewritten, I stopped work on it and started on the IH Motion.

How Planet Rossi reads fact

This example poked me in the eye today. On LENR Forum, IH Fanboy, a strong supporter of Andrea Rossi and a critic of Industrial Heat, wrote this:

Murray testified that Jed visited the Doral location with either you or JT Vaughn. (215-3, pages 122-123.) Do you agree with Murray? Was it with you?

Below this was the standard note:

anotherTroll likes this.

anotherTroll is a new user, appropriately named. LENR Forum is still figuring out how to handle trolls. They like free speech, but ….

Jed had said, many times as I recall, that he had visited the IH facility in North Carolina, but not the Doral plant in Florida. I was fascinated to see that Jed was even mentioned. So, of course, having the files, still working on annotating them, I looked this up. Continue reading “How Planet Rossi reads fact”

What if we provide a magnifying glass?

About the judge in Rossi v. Darden denying the requested page limits in Motions for Judgment.

Paradigmnoia wrote:

Dewey Weaver, I don’t suppose the font can be made smaller to fit more onto the limited page space…

Devious bastards think alike, we do. The same idea occurred to me, however, I know too much. I could not find the rule immediately, but pleadings must be in a certain form. That covers font size. I did find the federal appellate pleading rules, 14 point minimum for proportional spacing. Or 10.5 characters per inch maximum of a monospaced font. Pica typewriter, basically, 10 cps, for those who remember such ancient contraptions, if I’m correct (“elite” was 12 cps).

Footnotes might be smaller type, do I remember seeing that? I’ll come back and annotate this based on the record. I would want to look at the actual court rules. Do not violate the intention of the rules.

However, there is no limitation on type size for exhibits, and one could present exhibits in forms even more clearly than what has already been done, with various devices to compress and collapse. Look at the existing exhibits, they are highly wasteful. This would require care. Sometimes a rewritten copy might be submitted with a certification of “true copy” and a reference for verification. For example, deposition transcripts could be vastly condensed. More than one document could be presented in a single exhibit, easily.

I don’t think there is a limitation on the number of exhibits, however, or pages in exhibits. So for the Motion for Judgment and statement of facts, brevity will be the soul of wit. Continue reading “What if we provide a magnifying glass?”

Fair and balanced jury? Yeah, right!

That’s a Planet Rossi trope. Recent Planet Rossi comments have explained that internet discussions are being warped by attacks against Rossi by “paid” advocates for IH. When it is pointed out that a for-profit venture capital company, operating mostly with high privacy, would not pay for this, because they gain nothing from Rossi looking like he always apparently wanted to look (like a con artist or fake), it is then asserted that the purpose of this is to influence the jury in Rossi v. Darden.

Mostly this is being advocated by people with no deep knowledge of the jury system and how it works. A surprising possible exception is rionrlty, an American, using his real name, with apparent experience as a real estate broker, now retired. With an assumed long career, one might think he’d have more experience than to assert what he’s asserting. I will here examine what is being said about the jury selection process and rules, and provide sourced information about this.

Bottom line, not only is it unlawful to attempt to influence the jury selection process or to present “information” to the jurors outside of the court process, but it is also unlawful for the jurors, who are under oath, to lie about their experience and knowledge of the case or case issues, and they will be asked. It is also unlawful for them to violate the rules, which include any attempt to obtain outside information about the parties or issues, that they don’t already have and admitted having. It is not automatic that a juror would be excused if they knew something about the case and the parties; but it is a factor that the judge and attorneys would consider.

In the end, the goal of the Judge will be that the plaintiff(s) and defendant(s) agree that the jury, as selected and having been questioned, under oath, about all this, have been fairly selected and will be fair and impartial. Continue reading “Fair and balanced jury? Yeah, right!”

What happened with the video depositions?

Rule 30(b)(6) depositions rest on a legal fiction, taken to a ridiculous extreme, the personhood of a corporation. They are an invitation to create hearsay evidence, and an opportunity to make mistakes that cannot be corrected. Essentially the 30(b)(6) deponent is making official statements for the corporation, whereas most official corporate statements in law and practice are made by corporate officers, generally in writing, to make it clear that this is a corporate statement, not an individual one.

It’s been pointed out in legal advice sources that it may be advisable to designate a 30(b)(6) representative without direct knowledge, because the opposing attorney may fish with questions not on the list of issues, or seeking unspecified detail that might not be included in a briefing. I really can’t see why these depositions are even allowed, compared to interrogatories, which also create legally binding testimony. Corporations act through board approval or authorization, which is, in theory, deliberated. It is in that process that a corporation becomes a person.

The reason for depositions rather than interrogatories is so that a jury could, if necessary, view the witness to judge probity, (affect matters), but this is very strange in a 30(b)(6) deposition, where it could be very common that a witness will decline to answer, which, then, to some, may look evasive, or “slimy,” as as IH Fanboy called some answers — which seem proper to me in context — on LENR Forum.

It appears that the Rossi questions and conduct in the depositions was designed to solicit that kind of response, then to attack the corporation based on lack of response to questions that have already been answered by someone with much more direct knowledge, on the basis of failure to prepare. We discuss. Continue reading “What happened with the video depositions?”

IH Fanboy

IH Fanboy is an anonymous LENR Forum user. On Who’s on first?, I categorized him as Planet Rossi. A common Planet Rossi trait is to identify a possible error in the post of someone who seems opposed, and then claim that this is obviously wrong, attempting to impugn everything that the person has written because of the alleged error. This is also characteristic, by the way, of pseudoskeptics. It is really about people, not facts.

Patents and Jury trials

IHFB’s target is JedRothwell, I have classified as a Believer. Jed was at one point a believer in Rossi’s claims, even though Rossi had not allowed him close to the reactors, knowing that Rothwell would want to verify claims. Jed’s position ultimately changed. One thing has not changed, Jed tends to express what he concludes as “fact.” He can be strongly dismissive of disagreement. So, on the one hand, Jed, from his position and experience, is quite knowledgeable, and from the other, may overstate matters.

This matter when through a convoluted history, common with LF discussions. I’m not going back to the full beginning, but starting here:

Rionrlty [Planet Rossi] wrote:

JedRothwell wrote:

That would do no good. That strategy would not work. After I.H. steals it and begins selling it, the whole world would know it is real, and Rossi could then easily win any lawsuit, for practically any amount. The fact that I.H. initially persuaded people on the internet that the technology does not work, or even initially persuaded a jury, would make no difference once the money starts coming in.

Before going ahead with Rion’s comment, this discussion is about a Planet Rossi claim that the IH intention was to steal the technology, as if they could easily profit from that. Jed’s comment was a bit overstated, it might not be “easy,” but the Planet Rossi argument generally assumes that getting away with stealing a patented technology would be a slam-dunk. This is all a reflection of the Rossi paranoia, a long-term trait that whacked him in Italy. As a result of his fear, others took him down, because he did not engage major corporate support, he was suspicious of it. So here Rionrlty claims a method IH would have used.

He could have given it to one of the other researchers they claim to be supporting, had them present it as their own and completely circumvented Rossi. If you think there wouldn’t be takers for that amount of money then you are much more naive than I thought. This is where the grown-ups spin their webs and nobody invests that much money and doesn’t play the game for keeps.

That is a strategy that someone who does not understand intellectual property and patent law might dream up. First of all, if the technology is actually covered by a Rossi patent, what someone else claims, with a later priority date, is irrelevant. If a new patent is issued, it can be voided with a proper claim showing lack of priority. Further, what will the greedy “grown-ups,” imagined ready to play this deceptive game, do when faced with a necessity to testify under oath, where deception can result in jail time? It isn’t quite so easy, and it would only take one whistle-blower, or person with personal experience, not willing to lie. And if there is even a rumor, there can then be a basis for a subpoena, this is much of what Discovery is about.

JedRothwell wrote: (responding to Rionrlty)

That would not work. There is a paper trail of patent filings and experiments proving that Rossi invented the device. Rossi could easily prove this claim is false.

You[r] scenarios fail for common sense reasons.

Again, “easily” may be overstated, but if Rossi has the money or backing for hiring decent lawyers, it is likely he could prevail on the facts alleged. If the Rossi patents were invalid (another issue) and if the new inventions were not dependent on a valid patent, but instead were new — or public domain — technology, no, he could not prevail. Again, that is likely, not ever a certainty, any good lawyer will point that out. However, the odds are very much that way.

IH Fanboy wrote: (responding to Jed)

IH will claim that Rossi’s patents are invalid (oh wait, they already have). Then, when me356 provides his information more openly and/or when BLP introduces their first complete prototype to the public, IH will once again claim to be working with NiH systems, while proceeding with their own patent filings, partnering with a manufacturer, and eventually introducing their own IH-cat.

I am not aware that IH has claimed that the Rossi patents are invalid. As is common with Planet Rossi, what others may have suggested is attributed to IH, this is part of the idea that it is all an anti-Rossi conspiracy, and ultimately this requires that numerous people be lying in public, but even more, that they have or will lie under oath.

The scenario described here is that IH is willing to wait years to introduce the technology, whereas the technology, if valid, is worth maybe a trillion dollars per year. They would then be buying a legal mess, where they could lose everything. Instead, this is ordinary self-interested business sense, they would pay Rossi the mere $89 million if it were legitimately earned, which is certainly claimed by Planet Rossi. At the same time, by delaying, they would not only be losing the potential sales, they are risking that someone else will independently develop technology, there are many looking at it. What did Rossi do that was unique? Allegedly, he tried a thousand combinations before finding one that worked. Others can look at thousands of combinations, it is only a matter of time, and not that much money, all things considered. If NiH works, that is. If it does, there are those that know it does, so they would be hot on the trail. Me356? Maybe. But nothing of importance can be based on the unconfirmed claims of the anonymous. Even known people making extraordinary claims — like Rossi — cannot be relied upon fully without confirmation.

JedRothwell wrote: (responding to IHFB, my emphasis)

It makes no difference what they do, or what they claim. They can “claim” this or that until the cows come home. It will not help them. If the technology works, it will become generally known that Rossi invented it. There is a paper trail proving this. At that point, Rossi will be able to sue I.H. for any amount of money, with 100% assurance he will win. In a patent lawsuit, nobody cares what you say or claim. They only look at the facts. These are not trials by jury. The judge decides, and the judge is an expert in patents.

There is no strategy I.H. could employ, and nothing that I.H. could do to win, if Rossi’s technology really does work.

This is Jed’s long-term habit, to state a probable situation as if it were an absolute fact. As I read this, I did not know if Jed’s statement was true, but I could see the ontological error: “There is no strategy.” There might be one, and IHFB actually gave one, IH could argue that the patent was invalid, a real possibility, perhaps caused by lack of Rossi willingness to fully disclose what was necessary to make working devices (quite possible, out of his paranoia), or some other error in the patents — one reason to hire a good patent lawyer. However, what about “trials by jury”?

Jed’s comment was obviously based on the assumption of valid patents.

IH Fanboy wrote, responding to Jed:

Jed, you clearly know nothing about which you speak. I suggest you stick with something that you are more familiar with, such as Japanese.

Trolling, deliberately or inadvertently. No substantial argument or evidence, pure ad hominem.

I do not know much about this, but I have consulted with experts who do. This is what they tell me. Your assertion that I am wrong is — as always! — your opinion alone, not backed up by any facts.

And thus fact-free trolling fills discussions with extensive irrelevancies, making LENR Forum far less accessible. A more useful response from Jed would have been to ask what was wrong, specifically, and then for evidence regarding it. But he didn’t, Jed himself just reacted. Very human. Jed is actually human, I have watched him eat food, etc.

IH Fanboy wrote:

I suggest you consult with better experts.

How would he know they are better? Wait! There is a clear standard to apply. If they are better, they will agree with IH Fanboy! But as to what? Nothing has actually been specified! It is loosely assumed from context. That’s not a question to take to an expert unless the expert has time to burn, and they usually don’t. I’ve consulted a patent attorney and I’m pretty sure Jed Rothwell has, as well. So what has IH FB done? It comes out.

ele did reply to Jed’s comment with Planet Rossi misdirection, implying from it what Jed did not intend to imply, but I’m not quoting it here. In another post ele seems to believe that IH could poison a jury by internet gossip, demonstrating a serious lack of understanding of legal process and realities.

JedRothwell wrote:

ele wrote:

IH hopes that after that one if Rossi fails he will not have enough money to start another.

If this device works and it is commercialized, everyone will soon know that Rossi discovered it. There is a massive paper trail proving this. Rossi will become world famous overnight. Every major law firm in the U.S. will be eager to take on his case against I.E. They need not charge him up front. They can take a percent of the winnings. By the time this happens, I.H. will have billions of dollars from license fees from major corporations world-wide. Rossi will be in position to take all of that money.

IH Fanboy wrote:

I don’t know how to say this nicely, but you are completely disconnected from the real world.

Notice how IHFB is using hyperbole (“completely”) to push his point, without revealing what the point is, and repeatedly. He’s attempting to set Jed up for the coup-de-grace, PROOF that he is WRONG! This is clear trolling.

JedRothwell wrote:

As you so often do, you have given an opinion here not backed by facts. We have no idea why you think I am disconnected or the scenario I describe is unrealistic. If you have a reason, I suggest you state it.

Jed is himself stating an opinion not backed by facts, that is by facts provided. This is very easy to do.

There were two very reasonable response to this IHFB sequence: ignore it, or ask what he know asks. Jed says “we” here, and probably says it deliberately. I used emphasis above because I had already seen where IHFB went with this, so I knew what to emphasize.

IH Fanboy wrote:

Some things are so blatantly obvious that they require no explanation. Notice how nobody comes to your rescue on some of your more wild statements. Dewey would have, but he was warned off from our presence.

More trolling. Most people are ignoring this issue, and IHFB’s rantings. IHFB apparently thinks that it will be “obvious,” but IHFB often thinks that his own warped logic is obvious. He is really setting himself up, exposing himself. What actually happened with Dewey is not yet clear. He was asked to “tone it down,” something I’d been suggesting for almost a year. That’s all diversion.

JedRothwell wrote:

[answering IHFB as if it were a serious discussion], ending with]

They have not come to your rescue, either. I expect most people can see that I am right. Anyone who has read history or has experience in business will see that I am right.

Right about what, Jed? About everything? Trolls lead people into indefensible replies. It’s a cultivated skill. Looking at this sequence I’m re-evaluating IHFB. I’m no longer convinced he is sincere Planet Rossi. The name itself is trolling, “IH Fanboy”? Apparently he thinks that the time is right to spring the trap, but, of course, he wants to draw it out as long as possible.

IH Fanboy wrote:

Your statements are blatantly ridiculous. They don’t deserve to be graced by my explanation as to why. If you are unfamiliar with the business and legal landscapes, just do a few quick Google searches and you will immediately see the errors in your thinking. I suggest you start with keywords “patent lawsuit jury trial” and go from there.

JedRothwell wrote: [quoting only the first two sentences]

So, we should take your assertions as infallible pontifications from the Pontiff of Cold Fusion. A Papal Bull. “Bull” is the correct term.

I give facts, examples from history and cogent arguments. You dismiss them without deigning to give a reason. Do you really think people find that persuasive?

Jed took the bait, perfectly. Instead of doing what was suggested, it appears that he only responded to the first part of the claim. There is no sign that he did the suggested search. In fact, I suspect that Jed knows the topic reasonably well, so he might think he didn’t need to. However IHFB has seen something that he thinks is probative. It isn’t, apparently. I did the search and will point to what I found below. (I always assume that even a troll might have a point, so I would almost always check presented evidence, even if it is weak like this, unspecific. After all, that suggested search returns over a half-million results!)

IH Fanboy wrote:

No. But if I say they are blatantly ridiculous, you can easily see why by doing a few short Google searches. For example, you unequivocally state that there is no such thing as a jury trial in a patent case. That is ridiculous. And a simple search will reveal that to you. You don’t have to trust me on certain things. You wouldn’t believe me anyways.

Notice: “For example” is a device for conflating a single incident with an extensive pattern. Jed did not state what IHFB claims here. Jed described routine practice, as he understood it, possibly from years ago. IHFB has translated that to “no such thing,” thus creating a blatant error which he then attempts to rub Jed’s nose in.

JedRothwell wrote:

My understanding is that most patent issues are decided by judges.

Jed does not confront the misattribution. What he says, though, is unconditionally true. This is his understanding. His understanding also is properly qualified, “most.” It is also apparently correct about some issues that might be called “patent issues.,” validity, in particular, but the reality here is not completely clear. And it can be quite complex.

IH Fanboy wrote:

But that is not what you said originally, is it?

It is consistent with what he said, if we understand that a general statement is not necessarily qualified fully.

You said: “In a patent lawsuit, nobody cares what you say or claim. They only look at the facts. These are not trials by jury. The judge decides, and the judge is an expert in patents.”

This was also possibly overstated; however, again, Rossi v. Darden was assigned to Altonaga because she apparently does patent cases. See the Docket, document DE 11.

A word of advice. When someone corrects you, and there is no way around it, here are a few good words that will result in respect by others: “I stand corrected.” When you make a mistake, admit it and move on. If you persist in your errors, you will lose the respect of me and others. Funny that, I’ve never once observed you retract anything you have ever said, save for the time that you eventually changed your claim on the temperature data (but not after tremendous pressure from LENR Calender and me).

Most plaintiffs in patent disputes demand a jury trial. Most district court judges are not expert in patents

It is good advice, but mixed with poison. I’ve seen Jed retract errors, many times. In this case, Jed was not clearly wrong, though he might be in error in some ways, but he was also misread. And IHFB is being misleading. What was the point? It is totally lost in IHFB’s convoluted “correction,” which poked and provoked for many comments before even describing what he was talking about.

Rionrlty wrote:

JedRothwell wrote:

My understanding is that most patent issues are decided by judges.

It is up to the Plaintiff whether he will require a jury trial or accept a Judges ruling instead, just as it was in this case.

That is the general rule, not necessarily so with patent cases. Nobody, so far, is actually pointing to evidence. So, here we go. IHFB suggested googling “patent lawsuit jury trial.” So, of course, I did. The first hit: Jury Trials in Patent Cases which refers to this 2013 paper: Why Do Juries Decide If Patents are Valid?

The jury trial is a fixture of modern patent litigation. Lawyers, scholars, and judges take for granted that when a patent case goes to trial, that trial will almost always be before a jury.3 And that jury will decide most, though not all, of the significant issues in dispute – including whether the patent is valid. The dynamics of the jury system drive both the structure of patent litigation and its outcome. Jurors are more likely than judges to rule for patentees. Lay jurors are reluctant to second-guess the Patent and Trademark Office (PTO) and invalidate a patent the PTO has issued. And the fact that the parties are gearing up for a jury trial affects both the high cost of patent litigation, the structure of pretrial proceedings, and the willingness of the parties to settle and on what terms. This regime is built on an uncertain foundation. For while patent lawyers take for granted the power of the jury to decide whether the PTO made a mistake in issuing a patent, the role of the jury in patent cases is a recent and unusual phenomenon with a murky history.

After all, we don’t normally ask juries to review the decision of an administrative agency, at least outside the criminal enforcement context. The Administrative Procedure Act presupposes that judges, not juries, review agency decisions. The Supreme Court has held that there is no constitutional right to jury review of administrative agency decisions. And as the Supreme Court held in 1999, the PTO is an administrative agency subject to the normal rules of the Administrative Procedures Act.

The result is a puzzle. Why do we assume that juries will review PTO decisions when we don’t do so in other areas of law? The answer can’t be that “we’ve always done it that way,” because that’s not true. For much of American history, and as recently as 40 years ago, less than 5% of patent trials were before juries at all. Indeed, even today we don’t always let juries determine patent validity; validity can be determined in a bench trial in a number of instances, and by administrative agencies with no trial at all in still others.

The upshot here: there are two kinds of claims in patent lawsuits: ones that contest the validity of the patent and ones that claim damages. Formerly, damage claims required a jury, validity claims required a bench trial, i.e., were decisions made by a judge. The situation is far more complex than “jury” or “not-jury.” As of 1976 or so, about 6% of patent cases were tried before a jury. according to the author, that percentage began to rise, reaching about 70% by 1994, and has stayed about the same since. (See page 38 of the article)

The author also claims that it is well known that juries favor the patentee, i.e., the owner of the patent. Now, can a party demand a jury trial? According to the author, the matter is muddy. It may depend on the specific claims in the case.

From this source, Jed’s comment was only possibly correct if we limit consideration to issues of validity. He did not do that and clearly was considering questions of fact, not law. So I conclude that Jed probably did err. Why? Well, we don’t know when he formed his opinion. The percentage only reached 50% in about 1990, and Jed easily may have discussed this with a lawyer before then, and as well, lawyers are sometimes slow to revise opinions. And we don’t know the mix of cases. “Patent cases” includes the two kinds of cases.

From the second hit, obviously there are some jury trials in some patent cases:
We Get Through to Juries in Patent Trials

The third hit clarifies the matter:

Jury Trials in Patent Cases

In patent litigation, the right to a jury trial historically depends on the remedy sought by the patentee in its complaint. Infringement actions seeking only damages are legal in nature and, therefore, warrant a jury trial. Actions that seek only injunctive relief, attorneys’ fees, costs, or other solely equitable relief do not give rise to Seventh Amendment protection. …

If an action seeks both legal and equitable relief, different fact-finders will decide the claims. A jury will decide the legal claims while the judge will decide the equitable issues. In such cases, the jury must first decide any common issues of fact. Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959). Moreover, the jury’s findings on the overlapping issues will have a res judicata effect on the subsequent bench ruling on the equitable claims. Parties should also be aware that while affirmative defenses do not affect the analysis, monetary counterclaims do give rise to a jury trial right.

In the other direction, IHFB does not seem to be aware of the distinction between the two kinds of patent actions, and makes it depend only on the plaintiff’s choice.

And the original point was totally lost in “Is so! Is not!” discussion, mostly with IHFB claiming that this all was totally obvious.

In the “present case,” the action was filed and assigned as if it were a patent action. Validity of patents was not the issue, contrary to what was claimed by some. This was not actually a patent infringement issue, the only claims of patent infringement were completely incorrect and were dismissed by the judge. I.e., they did not go to a jury! What was left for Rossi was a claim of damages from nonpayment and then allegations of fraud. So “this case” shows a decision by a judge, not a jury. And then the rest remains, and nobody has questioned the appropriateness of a jury trial if requested.


Who’s on first?

Reading LENR Forum, categories of participants become apparent. As could be expected, categorization may vary with the experience and understanding or belief of the categorizer. Some of this is really and routinely obvious, though. This is explicitly my categorization, what occurs to me, and objections may be made to these in comments below.

Planet Rossi

Continue reading “Who’s on first?”

Everybody knows

I’m waiting for the results of today’s Rossi v. Darden hearing, and was struck by events on LENR Forum. So how to introduce this, and the line came to me, Everybody knows … that’s how it goes.

For the full lyrics.

Is that a depressing song? Well, no, because this is where the future begins: where we are. What “everybody knows” is not the future, it is the past, and Cohen mentions this. So here we go, the immediate past on LENR Forum. Continue reading “Everybody knows”

Demonstration of pseudo science and skepticism

This is a cautionary tale demonstrating pseudoscience and pseudoskepticism, a particular kind of pseudoscience that appears to be or is believed to be “scientific.” It is about the “Egely wheel” and human behavior. The application to LENR is that these responses are possible in this field. It is clearly possible to fake demonstrations and videos, to look totally convincing and to be, in fact, fraud, or, generally with a less convincing demonstration, mistaken, but it is also true that any clear fraud does not prove that all claims are fraud or error.

Rather, what can be derived from these is “possibility,” but translating that to “scientific reality” is a painstaking and endless process. As humans, we may need to make decisions by a certain date, but for humanity as a whole, there is no near-term and clear end date. We may sanely postpone decisions until they are necessary, considering all the risks and costs. To the case in point:

Continue reading “Demonstration of pseudo science and skepticism”

Discussion of how crazy can it get

How crazy can it get? (Claims of witness tampering)

One consequence of this filing is that Dewey Weaver has been silenced — or at least inhibited for a time. It was always a wonder that he disclosed so much.

There is discussion on LENR forum that I review below. Continue reading “Discussion of how crazy can it get”

Quack rentals?

In discussion of Rent-an-Expert Penon (Actually Rossi v. Darden developments), it was mentioned by Dewey Weaver, the only actual IH informant in LENR Forum discussions, that “Penon has proven that he doesn’t know beans about much of anything,”

So Alan Smith wrote: (my emphasis)

Which is why he graduated from University with the highest possible honours. ‘Summer comes Laundry’ as they say.

I won’t go into how inane that “factoid” is, in context. No sirree. I will not mention the word “idiot” once. Stealing a line from the RvD documents, the post speaks for itself.

However, what is this “summer comes laundry” thing? And AlainCo picked it up and made it huge: Summer comes Laundry

So, WTF? I googled it and the top hit was to this:


’nuff said.