Patent nonsense

A discussion on lenr-forum struck me. The issues raised have been raised many times, and addressed, but they keep coming back.

It’s about claims that IH has made contradictory statements about whether or not they have confirmed excess heat with Rossi devices, and about the patent they filed, why did they file a patent if the technology was useless?

Perhaps this is worth a close examination.

IH Fanboy wrote:

Q: Industrial Heat has represented that they replicated a test on their own, which resulted in a COP of 1.3. They have also made an affirmative representation in this case that they have never been able on their own to replicate any measurable excess heat, any, whether it’s reliable or not reliable. These two statements to me seem inconsistent, and I’m asking you, sir, if you have knowledge to which one, if either, are correct?
A. I can’t say that we never had a result that was — let’s see if I can say this right — we probably had results greater than one, 1.3 might be an answer. I think that reliably, repeatedly, repeating those results has not happened. So at some point in time there could have been a result of 1.3 that we thought was good.

This was quoting a deposition of T. Barker Dameron, as selected and quoted in the rejected Rossi Motion for Rule 11 Sanctions, where Rossi was attempting to show that IH was lying in their claims.

The question was leading, incorporating an assumption (I.e., that one statement or the other must be false, because they appear to be contradictory). As presented in the Motion, accompanying “facts” were not fact, they were clearly incorrect, misleading. The IH attorney, Pace, objected to the question, “as to form,” but Dameron went ahead and answered. It is not clear that Dameron still works for Industrial Heat.

COP is not “measured,” it is calculated from variables, specifically from indications of heating power (input) and released heat (output). There are many ways for this measurement to be inaccurate, so an engineer will not rely on single measurements, but will look for repeated patterns, and will attempt to independently confirm measurements. Dameron is clear in his answer that they were not able to confirm excess heat measurements; he is obviously referring to single measurements or unconfirmed results. The question is confused because the usage of “replication” is sloppy. A repeat of a test is not a “replication” unless the results are the same within a known experimental error. The original IH statement about COP 1.3 is not referenced. Tipoff, though, is that it appears to refer to a single test, not actually a confirmation or “replication.” If the test being “replicated” was Lugano, then 1.3 was not a confirmation, it was drastically lower than what was claimed by the Lugano report, and the 30% excess heat apparent from that attempt to confirm could easily be error.

The apparent contradiction arises though interpretive confusion and unclarity. Rossi is trying to play gotcha, and putting this in a Rule 11 Motion — doomed to fail immediately — appears to be playing to his fans, and, look, it worked!

And then this was tossed in:

E-man wrote:

If they really had 1.3, they would know it, and they would pay Rossi and go full speed ahead. Even if this is less than the COP they were hoping for, they could make something of it. Unfortunately, as they said quite clearly and repeatedly, they saw no excess heat, despite false alarms. I know for a fact they tried very hard, for a long time, with good people.

So why to hell IH wrote patent with “no exces heat” ?

This also echoes the Rule 11 filing. Rossi refers to the patent filed with Rossi and T. Barker Dameron as co-inventors, and claims that if the claims in the lawsuit are true (which are later claims, made in 2016), then they perjured themselves in the patent filing, and he shows excerpts from the filing. Those excerpts were from the Lugano Report. What happened with that filing?

The story as I understand it: the Lugano Report was about to come out. There was no independent review of that Report, but if published, it would trump the patent filing, because of a published demonstration, unless the patent were filed quickly. So a patent was tossed together and filed. The initial filing was October 6, 2014. That is the same day as the Lugano Report was issued. (From the UniBo copy.) The patent is mostly a copy of the Lugano Report. The idea that there was perjury in a “sworn application” is ludicrous. Who swore what? The application in 2014 was filed by an attorney. The patent disclosed data in a report. Patent filings don’t involve any “sworn statements.” The penalty for false statements in a patent application could be nothing, or could be the consequence that the patent is invalid.

What Rossi points to as IH “sworn statements” is just material copied from the Report. It was not from IH independent measurements at all. Lugano was a demonstration with Rossi heavily involved, the only independence was that he left in the middle, with them watching paint dry, so to speak, for weeks. From later analysis, we suspect that the device was simply heated by input power, nothing else; there have been some estimates by MFMP that indicate that there could be some excess power, below COP 1.3. That is not a conclusion that there was excess power, just that, working back with their own dummy reactor, they consider it possible. The Lugano team did not do a proper calibration at full input power, giving a seriously phony reason that was very likely fed to them by Andrea Rossi.

I see no sign of any attestation under penalty of perjury in the documents (the document history is at this WIPO page). That refers back to the original US application. (Rossi refers to the August 27, 2015 filings, but that was merely routine follow-up). Annesser drastically misrepresented these filings in his Motion for Sanctions, and he could be found in violation of Rule 11 himself as a result, if IH pushes for that. However, his defense would be that he didn’t know and reasonably might not suspect that the statements were false. Rossi would know, but if Rossi didn’t tell him, he might just read the patent itself and make assumptions about it, that this was a “16-day test” done by Industrial Heat. Very sloppy, though.

Nothing in the patent application was a “lie.” The patent lawyer simply filed based on what he had, in order to establish a priority date, something that Rossi apparently did not understand, and Rossi also did not understand that if T. Barker Dameron contributed any ideas at all to the construction of the Lugano reactor, it was essential that he be named as a co-inventor. None of that attacked Rossi’s status as inventor.

But what if there was a lie in the application? Perjury is a criminal offense. Would this be perjury? No. First of all, there is no attestation. And this is what I found: Lying to the Patent Office invalidates patent.

Filing a patent is a “certification.” Under some circumstances, there can be sanctions for a false certification. This refers to the practitioner, i.e, the patent attorney, not the inventor, though a Patent can be invalidated from a false certification. Darden, Vaughn, and Dameron did not make any certifications, the patent lawyer did.

Filing that patent, when it was filed, was precautionary. Then when the time came, the patent was perfected and went to the WIPO. There was probably little extra cost for that. It is not at all evidence that, by the time that patent was filed with the WIPO, in August, 2015, they still “believed” that excess power had been measured with devices under test. The patent is not evidence that they ever believed that, only that they chose to protect the IP.

There is a similar argument that appears from Planet Rossi: that if IH believes the Rossi technology doesn’t work, why don’t they give up the License? Let’s start with the fact that they paid $10 million for it, and there remains some small possibility, perhaps very small, that Rossi pulls a Wabbit out of the hat, in which case they have a hedge. In fact, they would be cheering, because they would become fabulously wealthy.

If the case develops such that they come to have a choice: their money back or keep the license, I don’t know what they will chose. We should remember that they did not just put $11.5 million into this, the full figure is probably around $20 million.

Return of the License is not on the table. Rossi has not asked for the license to be cancelled, and he has no right to unilaterally cancel the License, that’s all Planet Rossi mishegas, posturing, of no legal effect. At most, IH owes Rossi up to $89 million if certain conditions are satisfied, that’s a debt, because the License went into full effect with the payment of $10 million, the Agreement is very clear, and there is no provision for cancellation for any future nonpayment.

When I first started discussing this case with an attorney, he was clear: this was a collection action alleging an unpaid debt. The fraud claim was silly. There was no patent infringement, etc.

Author: Abd ulRahman Lomax


2 thoughts on “Patent nonsense”

  1. Abd – nice post. Planet Rossi continues with their recurring “Ground Hogs Day effect” patent tomfoolery.

    You do bring up an excellent point re lying on a patent application. All of Rossi’s patents contain statements about 24/7 factory heat going back the Focardi years. In fact, Rossi seems to date his claim back to a date that matches the date from Focardi’s TEDX talk where Focardi claims “first experiment”. Did Rossi turn that into his 24/7 factory heat customer “fact” and use that claim on his Italian, WIPO and USPTO patent filings? Problematic??

    1. Thanks, Dewey!

      The sense of my research, maybe someone will correct me: if a patent lawyer lies on an application about something material, that leads a patent officer to make an incorrect decision, as decided in later review, the patent can be invalidated and the patent lawyer can be “sanctioned.” Sometimes this has been just a slap on the wrist, but a lawyer could lose the right to represent clients before the Patent Office. However, if a lawyer simply puts into the application what the client tells him or her, no sanctions for the lawyer, unless a reasonable lawyer would have reasonably known to investigate further and verify, and the only consequence for the client is, again, that if it is material, the patent could be invalidated.

      As far as I can see, if you don’t expect the matter to come to a lawsuit, you can say almost anything in a patent. One would have to look at the claim, find out if it is possible to impeach it with evidence of deception, not merely error, and then have an actual cause of action on the claim, which would probably start with Rossi suing over patent infringement, and there is no known example of Rossi patent infringement that could stand for a moment. Rossi thought he had them, but those claims were dismissed. The Rossi/Dameron patent application was not infringement, that was clear ab initio.

      All the signs are that Rossi calls the shots in what his attorney does. If the attorney challenged him, he would have a new attorney in a flash.

      Rossi: You want me to claim those attorneys are lying?
      Annesser: That would be a Rule 11 motion.
      Rossi: Go ahead, file!
      Annesser: You sure? It could backfire.
      Rossi: No, go after those snakes!
      Annesser: You da boss! Just sign this.
      Rossi: Sure! I like your attitude!
      Annesser: BTW, last week’s billing has not been paid.
      Rossi: I’ll do it tomorrow.

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