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:
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.
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.
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.
[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.
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.
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.