Discussions of the 3rd Party Motion to Dismiss (3)

oldguy wrote:

If you were told that something was just a test of power supplied to a customer of your licensed technology and were given reports as such, why would you have reason to complain? You would only complain when you were told later that you consider it something else.

 

I don’t know why “IH says” must be more credible than “Rossi says”…..I really find absurd what IH says about the Doral test, I don’t believe they didn’t consider that the test was the GPT from the very first moment.

Just because they say it, it would not be so, other than the problem that Rossi is well known to exaggerate, to put the best construction on it. And evidence has shown that he lies, or, let’s say, deliberately creates misleading impressions. What else can one make of this: 0029-12_exhibit_12 This is not “IH says,” it is actually “Rossi said” (in 2012, in an email to IH, and Rossi has acknowledged that this is authentic (and would certainly have made a lot of noise if it were not). IH is not some eccentric inventor, known as paranoid. Darden is the CEO of a $2.2 billion corporation. He has gravitas. IH is obviously trusted by Woodford, and they have even more gravitas. However, set aside that impression, what do we have?
SSC considers the IH claim that there was no agreement to be preposterous, “I don’t believe they didn’t consider that test was the GPT from the very first moment.” What SSC does or does not believe is irrelevant. There is plenty of circumstantial evidence that they did not consider it as such. Did they suspect that Rossi was trying to set up a faux GPT? I consider that possible, though by no means certain. What would they do if they suspected that? Ask him? Let’s say that their long-term strategy with Rossi was to allow him everything, give him what he wants, but “within reason.” $89 million wasn’t within reason. A GPT totally controlled by Rossi, which is how Doral was set up, was not “within reason,” and no jury would believe that it was. They would have to be crazy, to use a phrase often used about Rossi.
There was an agreement between Rossi and IH: according to that agreement there should have been a GPT, so we can surely say that IH was waiting for that kind of test.
They would be waiting for Rossi to ask. Apparently, they had offered to run the test at the IH location, but Rossi wasn’t ready. I can’t say that for sure, but the Rossi story about all this doesn’t match what was in his email suggesting the Doral test: 0029-16_exhibit_16
“Your proposal to put the plant in a factory owned by yourself at least until recently is dramatically less convincing. ” The test did not start in North Carolina, I infer, because Rossi did not agree to it. He did not accept their proposal, but made his own, and there was no mention of “GPT,” no argument that this would finish that piece of business. There was no mention of “test” at all. Nor was test mentioned in the Term Sheet. 0029-17_exhibit_17
Then Rossi propose and sets up a test. Now, there are two cases: either Rossi started the test saying it was NOT the GPT, but eventually changed his mind, or IH has never asked Rossi if the current one was the GPT.
This attempt to reduce the situation to one of two alternatives, both probably incorrect, is common with those who are not familiar with the evidence, but who nevertheless have strong opinions.
It is highly unlikely that Rossi was “saying it was not the GPT.” Far more likely, he did not mention it until much later, and we don’t know when, but we know that he did this before the beginning of December, 2015, because that is when the IH mail was sent to him denying that Doral was the GPT and that Penon had been selected as ERV. See 0070-3_ih_response_to_2nd_rossi_prod_request, Requests 30 and 31 (PDF page 24)
I would assume that IH never “asked” Rossi if the Doral installation was the GPT. The statement above assumes that Doral was a “test.” It was not presented that way. It was presented as a sale of power, for profit, and as a demonstration for potential investors. Then — maybe — , later, Penon was engaged to measure power, making it into a kind of test, but unless GPT were mentioned, it would not be the GPT, which required explicit — written! — consent from “all the parties,” which would include Ampenergo, by the way. If Rossi did think he was setting up a GPT, he completely ignored the Agreement and 2nd Amendment.
The first case may not have occurred: otherwise IH would certainly have said this thing in the counter-suit. The second case, however, seems to me much more likely, and suggests that immediately IH wanted to take advantage of the test only to raise money but they did not ever want to pay (and in fact they finally said “this is not the planned test”).
Sure. You can imagine that. However, the scenario it requires is preposterous. If IH actually found the Rossi technology useful, and put it to work, Rossi would then have a splendid patent infringement case, if this were then applied outside of the territory. From the evidence we have about Woodford, and reasonable inference, the test only helped raise that money by showing Woodford that the technology wasn’t working. So investing in other LENR became safe.
This could be plausible, and is somewhat consistent with the above. IH was unable to confirm the Rossi claims, they claim that they never were able to show any excess heat (which I gloss as “significant excess heat.”)  So they could not use the Rossi technology to raise money to pay him. In this scenario, they did realize that he was trying to set up a “GPT,” which they certainly did not want to happen in Doral, but they knew that Rossi wasn’t getting their written agreement, so could not claim it was a GPT and succeed. Because he might pull a Wabbit out of the hat and make the thing actually work, and because they had no other use for that plant, since the individual devices in it did not show heat in their testing, why not allow Rossi to go ahead? In this scenario they could be seen as taking advantage of an aging man, a bit losing his mind. Nasty, eh? But “nasty” doesn’t win lawsuits unless it translates to “illegal, violating agreements.” Rossi was an adult, and fully capable and wealthy enough, for sure, to consult with attorneys, who would have told him, I’m sure, to “get the date set in writing before you put in a year of your time.” They would also have told him that if IH unreasonably refused a genuine GPT, it could be ordered by a court.
But Rossi didn’t do any of that, and apparently has no written agreement, nor any specific alleged consent, just vague ideas like SSC just presented.
[…] As far as I know, IH were granted certain territorial rights in a license, as IH Fanboys has clarified.
During the test in Doral, Rossi still kept the exclusive license for the other part of the world, so he had all the reasons and the right to protect his secrets from the eyes of a visitor who was a stranger for him (and Murray was a stranger!).
IH was granted a license for the territory, yes. However, they were also promised full disclosure of the “IP,” including the secret formula. You gotta admire the pluck of SSC: takes a licking and keeps on ticking. But that was a cheap watch…
SSC confused License with IP. The disclosure of IP was to be complete. IP was not segregated by territory. Rossi also granted IH first-refusal rights for licenses anywhere in the world. Further, as IH has pointed out, IH could disclose the “secrets” to anyone it chose. It would be restrained in doing that by its own self-interest, not by the Agreement. Rossi obviously failed to consult a lawyer! Or if he did, he might have a cause of action for legal malpractice!
The Term Sheet, which Rossi had signed, allowed access to the Plant at any time for IH “personnel.” Who determines who is personnel or not? Not Rossi! Now, suppose that Rossi had reason to believe that someone IH had retained was a spy for some third party. Would he be required to allow the visit? No. But he would not handle the matter as he did. He would tell IH his suspicion, and probably the reasons. He would not do what he did: 0029-19_exhibit_19
“About the meeting of Tuesday, you obviously can come when you want, while Joe Murray cannot enter in the factory of JM because, as I have explained to Tom during the visit with Brian Mc Laughlin, I do not allow anybody, except for the personnel already reciprocally authorized, to approach the plant before the tests on course will have been completed.”
“Anybody.” Not just Murray. As well, there was only one “investor visit” after that, and this might have been considered “already authorized,” it’s not clear. Less than half-way through what he is now calling “tests” he shuts off all visits. If he didn’t want to directly confront Murray as a possibly spy, he could have said, “I cannot allow this person to visit, for reasons I cannot disclose. Please retain someone else as an engineer for the visit.
Instead, it’s obvious: he was seeking to conceal something from IH, something that might be visible to a skilled engineer, but not to Darden and Vaughn themselves, or so Rossi might think. And this, as people have been pointing out, shows that he was in substantial and crucial violation of the Agreement, a violation that would be completely adequate as a basis for refusing to pay the $89 million, even if this were the GPT!
SSC wrote this and this, with more arguments along similar lines.

Documents 91-94 on the Miami Court Pacermonitor. Who has read them?

(Raising hand and waving it) Me! Me!
In fact, I hadn’t noticed the files, so I downloaded them and put them up. I will continue any discussion of those new files and comments about them in another post. For all case files, see Rossi v. Darden case files.
there was more discussion in which various users kicked the dead horse a few times.

Rossi and IH (and possibly AEG) did need to agree on a start date as stipulated in the second amendment to the licence.

In Rossi’s complaint, #65 says:

​65. Accordingly, on January 28,2015, the ERV prepared and submitted to the parties a proposed test protocol for the Guaranteed Performance Test. After suggesting minor changes to the test protocol, and clarifying other points, DARDEN on behalf of IH andlor IPH agreed to the test protocol prior to the commencement of the Guaranteed Performance Test.

IH denied #65.
I haven’t seen a Rossi response to that denial.

Nor will he see one, until trial, or a Motion for Summary Judgment and Reply, or something is revealed in the discovery process that we see because a party takes it to the Magistrate. See the IH Answer Merge (paragraph 65). A defendant may simply deny a claim and there is no more legal argument until trial. From #64 and #66, though, one can see the reasons for the IH denial. They could not agree to 65 because the foundation is flawed, that the “ERV submitted to the parties a proposed test protocol for the Guaranteed Performance Test.” We have a proposal from Penon at the end of a discovery appeal. See the reference to this in the IH answer to  Interrogatory #6.
Rossi had provided a copy of a test plan. It was apparently obsolete. Rossi may not have had the later version of the plan, and may not have had any “agreement.” We have not seen that older plan. Did it mention the magic words, “Guaranteed Performance Test”? The allegedly newer one doesn’t.
JedRothwell wrote:
There is no doubt that Rossi’s test was a farce that did not meet code, his data was crudely faked, the instruments could not possibly show what he claimed, and if the claims were true the observers would be dead.

That apart, it went very well.

If I were allowed, I’d upvote that.

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