On LENR Forum, Jed Rothwell wrote:
@AN: You just forget, that all useful reactors were built by IH…
Rossi claimed that he built some. He claimed they worked. I.H. tested the ones he made and the ones they made. None of them worked. But, anyway, if Rossi has one that works, he can have it tested independently. If it works, I.H. will pay up. Or, if they don’t pay up, he can easily win the lawsuit by citing the independent replication. Either way it is in his interests to have the claim confirmed independently.
As is common, Wyttenbach “reminds” us of useless and possibly misleading information. I have myself stated that IH made the reactors used at Doral, but I do not recall where that information came from, it may simply be something based on RossiSays that got picked up and treated as true. There were large reactor assemblies that might be “Big Frankies” that were transported from Italy to North Carolina. Perhaps someone will point to, like, actual evidence?
However, what Jed wrote simply is not so. Evidence of independent testing, if it existed, would still be irrelevant to Rossi’s basic $89 million claim against IH. That is based on nonpayment claimed to be a breach of contract, and to that claim requires that the contract require the payment, whereas there is ample evidence that the opportunity for a GPT was missed, through deliberate refusal to approve of the Second Amendment, on the part of Ampenergo (as well as other problems). That some Rossi device, somewhere else, “worked,” perhaps, even, a truly reliable test, simply doesn’t trigger that payment unless the Agreement conditions were met, and they clearly were not.
What is being confused here is an IH statement of intention to pay if Rossi satisfies them — voluntarily –, with an idea that they must pay.
In the counterclaim, which is distinct and different, whether or not Rossi devices work could be relevant, and evidence of independent testing could be introduced, in defense of Rossi. The original Rossi claim, though, is dead in the water — and, my opinion, very likely to be thoroughly burnt toast shortly, the evidence and facts sufficient to dismiss it being clear, and not at all vague or requiring jury assessment.
What remains and what may possibly require jury review are the counterclaims, against Rossi, and including the claims against Johnson, Bass, and Fabiani. Maybe. I have not completed my review of the MSJs.
However, it does appear that some Rossi claims, signed under penalty of perjury, have been egregiously false; so a risk for him has arisen of criminal prosecution. The “Johnson Matthey” issue is the clearest. He led IH to believe that JM was the real customer behind JMC/JMP, there can be no reasonable doubt of this from Rossi’s emails, plus, of course, there is the testimony of Darden and Vaughn, plus the emails of Johnson and Bass, and then he set up conditions to discourage IH from checking through direct communication with JM. All this makes no sense unless Rossi originally brought up JM — and wanted IH to continue their (mis)understanding.
Meanwhile, Annesser and Chaiken apparently left PBY&A and have set up their own firm, Annesser and Chaiken, PLLC. The email address provided is on a new domain, registered April 17, 2017. It’s parked at godaddy. Annesser and Chaiken are no longer listed on the PBY&A professionals page, as they were on the latest Internet Archive page showing them.
I had noticed an oddity: in the Discover hearing April 20, there was an appearance by Robert Bernstein, who is shown as a Silver Law Group attorney, and who is not listed as counsel for Rossi. Ruth Silver, the principal at SLG, has withdrawn from the case, so what was Bernstein doing there? I suspected Annesser needed some help, asked Bernstein to appear, but without Bernstein making a formal appearance in the case, as counsel for a party, (which I haven’t seen), I’m not at all sure about how that works. (Annesser is still listed as part of the SLG team. But his Linked-in profile shows this association as having ended in 2016. — and it still shows him at PBY&A. The SLG web site is obsolete.)
Actually, I just looked at Bernstein’s Linked-in page. He has been quicker to update. He is now listing himself as an associate attorney with Annesser and Chaiken PLLC. That is why he appeared at that hearing (which was after ACLaw was created as an email domain.)
So Rossi’s lawsuit has taken half the attorneys away from Silver Law Group (the least experienced ones, to be sure). Aw, Ruth, if you read this, to steal a phrase from Lenny Bruce, you betta off.
Some more comments on LF discussion:
IH Fanboy (with his misleading and perhaps trolling username) repeats himself, over and over, on certain points. Generally, he does not actually cite evidence, but sometimes we can recognize the source. It’s typically misleading.
Assuming this fascinating business comes to trial, I do hope that counsel for IH ensure that the idea that Rossi could could at any time have openly demonstrated a working eCat . . .
I’m going to break the rest of the IHFB comment into numbered sections.
 He did.
Not. NA means a an independently verifiable test, not merely some “demonstration” with Rossi in full control. Planet Rossi generally justifies Rossi secrecy based on his need to protect his IP from being stolen, but it is quite possible to do a black box test. It does require certain additional precautions, that’s all. (Such as running for substantially longer to rule out energy storage.)
[2.] Not only that, IH (i.e., specifically Dameron) built reactors themselves.
They did. They claim that they didn’t “work.” This must be understood, see below.
[3.] Darden (yes, the VC guy) apparently fueled them himself.
He did, and that makes complete sense.
[4.] They produced COPs upwards of 9.
Here IHFB simply assumes that Darden et al are lying. He has lost track of something — or willfully ignores it. Reactors do not “produce” COPs. COP is the result of a measurement analysis, and sane measurement includes the use of controls, etc. It is quite easy to calculate COPs that are wildly off, if measurements or analyses of them are in error. IH did “reproduce” Rossi claims, but then identified artifact; that is far more convincing as a negative replication than merely obtaining different results. It appears that when they used Rossi measurement protocols, they also got these elevated COPs.
Or Darden et al are lying, under oath. There isn’t much more room for middle ground here.
[5.] Dameron was still running them as late as January 2016 in the same building where Murray was just getting set up with his modified version of the reactor.
This is irrelevant. It is not clear what IHFB’s point is. I would expect IH to continue to test well beyond the ordinary “give-up” point. The essential point for IH is that what Rossi taught them to do doesn’t work. Whether the set of reactors under test in Doral “worked” or not is actually irrelevant to the suit: Rossi did not successfully transfer working IP with commercial value. Perhaps he waved his magic wand in Doral, applied liberal amounts of Rossi Grease. It doesn’t matter. The set-up to consider that a “GPT” was radically defective, on many grounds.
[6.] That is, until IH boxed everything up and closed shop, according to Murray, in response to the filing of the lawsuit.
Did Murray say “in response to the filing …”? This probably is based on something from the Murray deposition. You can find it on this page, which lists all deposition exhibits. As it happens, we have the entire deposition. It is 423 pages. Which one?
What appears to me is that IH finally gave up spending more money trying to validate the Rossi IP.
However, what did Murray actually say? Starting on deposition p. 102, he is talking about the Dameron tests (apparently IH wanted some independent testing internally, which makes sense.)
20· · · · A.· · Yeah, I remember he had a thermal imager, and
21· ·he kind of described it to us a little bit.· I recall
22· ·asking him to set up a test plan and test procedure and,
23· ·so we could document what was going on, and that just
24· ·fell by the wayside.
25· · · · Q.· · Did you set up a test plan and test procedure
·1· ·for your test?
·2· · · · A.· · Yes, we did.
·3· · · · Q.· · Do you know if that was produced in
·5· · · · A.· · I’m pretty sure it was.· We took the entire
·6· ·body of all the data and shared it.· So I would imagine
·7· ·it’s somewhere in there, test plans and test procedures.
·8· · · · Q.· · Okay.· And where is the device that you
·9· ·tested now, if you know?
10· · · · A.· · I can’t say today, but I know before we
11· ·closed up shop we took everything related to the
12· ·litigation under the direction of Jones Day and we put
13· ·it all together, and we boxed it up and we put it into
14· ·the locked facility in the back of the building.· So I’m
15· ·sure it’s all in there.
This does not state that the “closing up shop” was “in response to the lawsuit.” Rather, they simply are not like Rossi, who destroyed possible evidence (much more relevant to the lawsuit than what IH was doing privately). They followed legal advice, and it is unlikely that Rossi spoliated the evidence upon legal advice. If so, there might be an attorney in very hot water.
IHFB makes many claims without evidence, and is unreliable.
@THH. What was the claimed input power in Lugano? A figure of 800Watts comes to mind, but that’s from memory. I can get a better insulated (and smaller) reactor to 1500C on 160W. So I would thin that 800W (if I am correct) would not need to be any kind of fiddled input measurement.
Smith is being lazy (and my memory was a power increase from 800 early on to 900 W later). It’s easy to look at the Lugano report. Claimed input power was around 810 W., then increased to 904 – 923 W. Claimed temperature from their defective camera analysis was about 1260 C at the lower power input to 1410 C at the higher power input.
Smith is likely correct in that input power measurement error is unlikely in the Lugano test. COP estimated was 3.13 – 3.74, which appears well within range of the blatant calorimetry error.
It’s been claimed that using a thermal camera for calorimetry was wildly inappropriate. I’ll disagree (as did Jed Rothwell). The problem was that they misused the camera, and botched the analysis, compounded by a failure to calibrate under operating conditions (i.e., using a dummy cell at full input power). It appears that one of the shouting matches with Rossi occurred when IH pointed out to Rossi that the cell he was measuring high COP with was a dummy cell. No fuel. Oops! At that point, I suspect, Rossi concluded they were snakes. Only a snake would steal the fuel!
(I have read this dummy cell story but have not confirmed it. Perhaps someone will point to a source. We really do have a mountain of evidence, see this page where I have collected it. I have started to prepare a timeline. If anyone wants to help, please contact me!)
And then there was this from IHFB:
Sorry, but you’re wrong. Rossi can do anything he likes with the IP, so long as he doesn’t SELL items made using it in the territories already ceded to IH.
While I agree with you on this point, IH is (humorously) claiming otherwise in the suit. They think their territorial license somehow blocks Rossi globally.
Well, what Nigel wrote is substantially true, but not completely true. He cannot do “anything he likes.” In offering licenses, in other territories, IH has, from the Agreement, a right of first refusal. Hydrofusion and certain other pre-existing licensees are explicitly exempted from this.
As usual, IHFB is making things up when describing what IH “thinks.” He should get his mind-reading crystal ball fixed. They do not think what he wrote; but, hey, if they do, perhaps IHFB could quote the source, or at least give us calibration data on that crystal ball.
The bottom line here is that, no matter what IH “thinks,” Rossi could have continued to market his invention, IH could not stop that, except by matching any new offers, and could not stop him from agreeing with Hydrofusion, for one, and providing them IP, if they are still willing to talk to him.
This gift just keeps on giving. When we argue with b-s’ers, if we are not careful, we can get b-s all over us. Sigmoidal, normally quite cogent, wrote this:
IH Fanboy wrote:
Yes, I think the APCO inspired unable-to-substantiate-all-without-success is BS. And I think Darden and Vaughn did their best to stick to that story line in their depositions. Dewey suggested awhile back that he suspected Rossi’s team is gearing up to impeach witnesses. And it probably has something to do with deposition testimony compared to disclosed test report data.
The connection between “unable to substantiate” and APCO is a Planet Rossi trope based on the fact that an APCO consultant (later in business for himself, and who also visited the Doral Plant — or tried to, he may have been rejected, the Rossi email mentioning him and the list of visitors from IH imply that he was not allowed to visit, which would have been the first known clear violation of the Term Sheet) was on cc from the March 2016 announcement, which proves almost nothing. Darden and Vaughn would not care much about publicity, certainly not enough to perjure themselves. Darden and Vaughn are personally at very low risk here, the Rossi attempt to pierce the corporate veil is doomed, it is clearly contrary to law and precedent. However, Sigmoidal replied:
Well, not suprisingly I think your thinking is absurd, as I have implied over and over again.
But even with the extremely remotely possibilty that you are not simply seriously deceiving yourself and Rossi actually has something, there is nothing stopping him from demonstrating his high COP system, right now, this instant.
Well, if he has a high-reliability Quark-X system, nothing would actually be stopping him — other than, perhaps, his health. As to an E-Cat system, it is not at all clear that he has any devices ready to test.
This would have the effect of demolishing IH, winning the court case, awarding him over a quarter of a billion (with a ‘b’) dollars, completely destroying Darden’s reputation, opening up vast amounts of VC capital in Europe and other regions not covered by the license, result in fabulously increased quality of life for all, be the greatest discovery since fire (and that is no exaggeration), result in a virtual lock for the Nobel Prize Rossi so covets, and more.
No, it would not have that effect. First of all, the primary case is about $89 million. The “triple damages” thing is entirely separate, and a demonstration of a real device would have no effect on it, this is about a claim that Darden and Vaughn never intended to pay, and deceived Rossi about Cherokee, etc., all of which is terminally weak, with no substantial evidence having appeared other than Rossi hysteria.
Rossi already ran “demonstrations.” But let’s assume that Sigmoidal actually means rigorous independent testing by reliable experts.
“Greatest discovery since fire” is an exaggeration. Rossi did not discover LENR, nor did he discover NiH. He may have discovered a particular engineering approach, if he hasn’t been entirely a con …. but that latter possibility is looking very, very likely at this point.
No, he would not get the Nobel Prize. There is no Nobel for inventions.
However, Rossi has moved on to even better inventions. The mind boggles trying to imagine how awesome that will be!
Yes, Sigmoidal is being sarcastic, but is feeding certain tropes in doing so. Sarcasm in posts like this doesn’t come across cleanly.
But if there were any doubt, we know that a dummy reactor was measuring high COP.
Yep, according to Darden’s story, he must have known as early as January of 2014 that it was all a big scam, because a dummy reactor gave the same COP as the other reactors.
This is based on a deposition, and testimony in a deposition, unless controverted, is legally “fact.” However, what IHFB says here is a conclusion from Darden’s testimony, not the testimony. This confusion between fact and conclusions is common for IHFB — and others as well. What that testimony indicates is the possibility or probability of error in measuring COP, which has already been widely suspected. This does not prove it was “all a big scam,” though it certainly raises questions of major error.
The problem is that we have these little things called facts.
IHFB should have his mouth washed out with soap for presenting implications and imaginations as “fact.”
Such as, Darden then proceeded to secure tens of millions of outside investment over the course of the next year and a half,
If Darden had done that and then threw the money at Rossi, it would have been a major problem. Rather, Darden et al continued to investigate, and the major funding raised was used for other projects, not Rossi. IHFB has pointed again and again to the quick reaction of Woodford to the draft IH press release in March, 2016 as if it proved that Woodford was really investing in Rossi and had been deceived. It doesn’t show that at all. There was a hope, obviously, that Rossi technology would pan out and the various failures would have been fixed.
and also required everyone to leave the lab in Dec/January 2016 so that he could carefully and secretively load the scam fuel into Murray’s modified reactor. Wouldn’t want the secrets of the scam fuel to get out.
IHFB is implying that this is inconsistent, but, in fact, it is fully consistent with what we know. That fuel mixture is not “scam fuel,” it would be what Rossi disclosed in 2013, and the failed test (control showing the same apparent heat as the experimental device) does not prove “scam.” It could just as easily show that Rossi had decided to torpedo the IH effort, perhaps feeling that he had not been paid or promised enough. IH simply continued with their plan (to “crush the tests”), and the fuel details divulged by Rossi (real or scam) were kept as a closely-guarded secret. IHFB is sarcastically implying that the appearance of contradiction (in his mind) proves that Darden was lying. This is how IHFB thinks, apparently. It’s not uncommon on Planet Rossi.
Rossi’s reported reaction to that no-fuel finding demonstrates that he is definitely not a scientist. A scientist would be very interested, not angry. However, if that was a no-fuel test without telling Rossi, it would have been (1) brilliant, and (2) very likely to set him off. Rossi clearly cannot stand independent testing, and a test that might show him up, proof that they are snakes.
IHFB went on and on with preposterous claims, as the LF thread on Rossi v. Darden wanders far from the nominal topic with the full collaboration of at least one LF moderator, now over 7000 posts.
Unluckily the burden of proof is on the IH side. They signed a foolish contract…
No, in the U.S. court system the burden of proof is on Rossi. The defendant is assumed innocent. You have to show strong evidence that the test worked, I.H. knows it, and it tried to cheat Rossi. I.H. cannot be found guilty if they have a legitimate difference of opinion regarding the test results.
Jed is confusing civil with criminal liability. “Guilt” is not an issue in civil cases. A clue is that mens rea (guilty intention) is not required to find civil fraud. The basic Rossi case was a claim of breach of contract, so for a court to find liability under the contract, the elements would have to be shown. The test “working” was not actually part of the contract, this was first noticed by Planet Rossi, which thought that the case was ironclad.
Basically, test results were up to the “ERV.” That is how it was written, Wyttenback is correct about that. However, there are some problems for the Rossi claim. First of all, the Agreement was not followed in setting up the faux GPT. To allow a postponed GPT, the Second Amendment was attempted, but that failed because of Ampenergo refusal to sign, a fact that Rossi left out of his complaint. IH only claimed, in their MTD, a technical failure, missing signatures (and then the “6 cylinder unit” issue, which simply shows that the Second Amendment, never having been completely executed, was ignored (until it came time for Rossi to make his $89 million claim). Easily, IH and Rossi could have made a side-agreement, but Rossi did not attempt that, apparently. Instead, he set up a faux customer to encourage IH to give him possession of the reactors, and arranged for Penon to measure heat — all of this without mentioning “GPT.” Far from getting the signatures of “all parties” to the start of a GPT, as the Second Amendment required, had it been valid.
If Rossi and IH had clearly agreed on Doral as a GPT, and Penon as the ERV for it, Rossi’s case would have been far stronger. Yes, IH could possibly defend on various bases, and a claim of fraud would be one of these. But the initial presumption would be as the Agreement had it: the ERV report was binding. I think IH felt safe with that because the originally contemplated GPT would have been in their facility where they could observe it very closely.
There is no presumption as Jed describes in civil cases. Rather, the judge or a jury is looking for equity, and a jury decision must be unanimous — in Federal Court — and there is no presumption at law as to which party is right. A requirement for absolute proof (“beyond a reasonable doubt” in criminal cases) could be quite unfair. The standard is merely the preponderance of the evidence, for the trier of fact (i.e., the judge or the jury in a jury trial).
(That is why O.J. Simpson could be found “not guilty” in a criminal trial for murder, but responsible for damages in a civil case.)
By the way, can you point out to me where Penon’s deposition was under oath? I have “lost” that. I would think that it is in there but not finding it.
By the way, there is a list of all deposition exhibits, with a Table of Contents at the top, so that any deposition can be quickly found, and I’m going over it to list what pages are included in each copy. I may then create composites with all the pages we have.