Atmos Nation v. Alima - Complaint

Case 0:18-cv-61041-FAM Document 1 Entered on FLSD Docket 05/09/2018 Page 1 of 251
UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO: ___________________
ATMOS NATION, LLC, ATMOS

TECHNOLOGY, LLC, ELI EROCH, and
CHARLY BENASSAYAG,
Plaintiffs,
v.
YARIV ALIMA,
Defendant,
___________________________________/
COMPLAINT FOR DECLARATORY JUDGMENT

IN ORDER TO CORRECT INVENTORSHIP IN ISSUED PATENTS
COME NOW, the Plaintiffs, ATMOS NATION, LLC, ATMOS TECHNOLOGY, LLC,
ELI EROCH, and CHARLY BENASSAYAG (the “Plaintiffs”), by and through their
undersigned counsel, and hereby submit this Complaint for Declaratory Judgment in Order to
Correct Inventorship in Issued Patents against the Defendant, YARIV ALIMA (“Alima”), and
state as follows:
NATURE OF THE ACTION
1. This is an action for declaratory judgment to correct the incorrect inventorship
depiction of several patents owned by Atmos Nation, LLC and Atmos Technology, LLC
(“Atmos”).
PARTIES, JURISDICTION, AND VENUE
2. Plaintiff, ATMOS NATION, LLC, is a Nevada Limited Liability Company, with
1
its principal place of business in Broward County, Florida.
3. Plaintiff, ATMOS TECHNOLOGY, LLC, is a Florida Limited Liability
Company, with its principal place of business in Broward County, Florida.
4. Plaintiff, ELI EROCH (“Eroch”), is an individual and Florida resident who
resides in Broward County, Florida.
5. Plaintiff, CHARLY BENASSAYAG (“Benassayag”), is an individual and Florida
resident who resides in Broward County, Florida.
6. Defendant YARIV ALIMA (“Alima”) is an individual and Florida resident who
resides in Broward County, Florida.
7. This case arises under 35 U.S.C. § 100 et. seq., and seeks declaratory relief under
28 U.S.C. §§ 2201 and 28 U.S.C. §§ 2202 in order to correct the inventorship of several patents
pursuant to 35 U.S.C. § 256. As such, federal question jurisdiction is invoked under 28 U.S.C. §
1331.
FACTS
8. Atmos began its corporate existence with four members: Eli Eroch, Charly
Benassayag, Shlomi Biton, and Yariv Alima.
9. It was created to design, market, and sell portable vaporizers, e-cigarettes, and
their accessories throughout the world. Atmos continues this business today.
10. With the exception of Alima, the members of Atmos had prior experience in the
business of electronic cigarettes and portable vaporizers before they formed Atmos in 2010.
11. Alima’s role in the parties’ business ventures was two-fold. First, he was put in
the position of a quasi-financial officer such that he would oversee the work performed by the
businesses’ director of finance. Second, he was involved in day-to-day clerical functions.
2
12. As part of his clerical responsibilities, Alima was tasked with acting as a liaison
between Eroch and Benassayag and certain patent attorneys that assisted in the application and
procurement of Atmos’s Patents.
13. Alima was responsible for transmitting documents to the patent attorneys and
completing paperwork when requested by the patent attorneys. Alima was never involved in the
engineering or design that contributed to Atmos’s issued patents.
14. Atmos owns the following United States Patents (“Patents”) at issue herein.
a. US D695,450 (Exhibit “A”);
i. Current Listed Inventor: Yariv Alima & Charly Benassayag
ii. Current Assignee: Atmos Technology, LLC
b. US D710,488 (Exhibit “B”);
i. Current Listed Inventor: Yariv Alima
ii. Current Assignee: Atmos Nation, LLC
c. US D717,994 (Exhibit “C”);
d. US D720,094 (Exhibit “D”);
e. US D720,095 (Exhibit “E”);
f. US D720,496 (Exhibit “F”);
3
g. US D720,497 (Exhibit “G”);
h. US D720,499 (Exhibit “H”);
i. US D722,956 (Exhibit “I”);
j. US D723,732 (Exhibit “J”);
k. US D724,265 (Exhibit “K”);
l. US D743,622 (Exhibit “L”);
m. US D745,213 (Exhibit “M”);
ii. Current Assignee: Atmos Nation, LLCl
4
n. US D752,281 (Exhibit “N”);
o. US 9,375,034 (Exhibit “O”);
p. US 9,379,364 (Exhibit “P”);
q. US 9,498,588 (Exhibit “Q”);
i. Current Listed Inventor: Yariv Alima & Charly Benassayag
ii. Current Assignee: Atmos Technology, LLC
r. US 9,451,792 (Exhibit “R”); and
s. US 9,271,529 (Exhibit “S”).
15. Eroch is the sole inventor of each of the utility Patents. He conceptualized each
idea that resulted in an issued patent and was the sole contributor to the claims set forth in the
patents. He reduced each invention to practice. He conceived all definite and permanent ideas of
the complete and operative inventions which ultimately began the patents.
5
16. Eroch is the sole inventor of each of the design patents, for the exception of the
‘450 patent which was co-designed with Benassayag. He contributed to each patent in a
meaningful way and conceptualized the designs set forth in the patents.
17. Benassayag is the co-inventor of the ‘450 patent. He contributed in a meaningful
way and conceptualized the designs set forth in the patent alongside Eroch.
18. Alima had no role in the design, engineering, or conception of the Patents,
whether a design or utility patent. He provided no contribution to the claims of any patents. He
did not invent any designs that resulted in the Patents.
19. While acting in his capacity as liaison between Eroch (and Benassayag with
respect to the ‘450 patent) and the patent attorneys, Alima illegitimately and incorrectly listed
himself as owner and inventor of all designs and devices that ultimately received patents. He did
this without the knowledge of the other members of Atmos. He did this as an “insurance policy”
should the other members of Atmos remove him from management and/or ownership.
20. As it turns out, Alima’s “insurance policy” was effectuated because he was
actively engaging in other manners of misconduct, including but not limited to theft and
misappropriation of company assets. He needed leverage in the event his misdeeds were
discovered, hence the improper claim of inventorship.
21. The other members of Atmos discovered the inventorship error in 2015. They
immediately directed Alima to assign the patents’ ownership credentials to Atmos, which he did.
Simultaneously, they directed Alima to amend inventorship of the patents. Alima failed to do so,
despite his unlawful preliminary filings.
6
22. On March 31, 2016, Alima was terminated from all positions within Atmos,
including any and all positions he held as a manager, consultant, and officer, due to malfeasance.
Litigation followed. 1
23. On August 16, 2016, Alima, via his counsel, sent a letter to the remaining Atmos
members claiming he was the sole or co-inventor of the Atmos patents. Moreover, he claimed he
owned sixteen of the Atmos Patents and demanded that Atmos cease from violating his exclusive
rights related to those patents. This correspondence confirmed what Alima had planned all along
– that it was his intent to improperly use the Atmos Patents as Bargaining Chips.
24. This is an exceptional case. This is not a run-of-the mill inventor correction, but a
correction due to a parties’ intentional malfeasance.
25. All conditions precedent to this filing have occurred, or have been waived.
COUNT I: DECLARATORY ACTION TO CORRECT INVENTORSHIP
26. Plaintiffs hereby reallege all of the allegations set forth in the above paragraphs.
27. Thereis a substantial and actual controversy between the parties in that they assert
adverse legal interests regarding the inventorship of the Patents. This is further demonstrated by
the letter sent by Alima’s counsel on August 16, 2016, which claimed both inventorship and
ownership on behalf of Alima (Exhibit “T”).
28. Alima’s inventorship claim will continue to cause uncertainty, insecurity, and
controversy regarding the inventorship of the patents and cause reputational harm to Eroch,
Benassayag and Atmos.
29. The controversy is sufficiently immediate and real to warrant the issuance of a
declaratory judgment because Alima refutes the Plaintiff’s true and proper inventorship
1
There are open claims and counterclaims related to ownership of the company (among other
issues) in state court (17th Judicial Circuit in and for Broward County, Florida Case No. 2016-
11606). Inventorship is not at issue in that matter.
7
designation, which causes them reputational and financial harm. The value of the Patents at issue
have been diminished as a consequence of the incorrect inventorship.
30. This Court is vested with the power to declare the rights, status, and other legal
relations of the parties to this action with reference to the inventorship issues raised herein. To
that end, Plaintiff’s request a declaration and judgment that:
a. Alima is not an inventor of any of the Patents, whether sole or joint, in
whole or in part.
b. Eroch is the inventor of all of the Patents.
c. Benassayag is the co-inventor of the ‘450 patent.
DEMAND FOR JURY TRIAL
Plaintiffs request a trial by jury of all issues so triable.
WHEREFORE, Plaintiff’s request that the Court:
1. Find and declare:
a. That ELI EROCH is the sole inventor of all Patents set forth herein.
b. That CHARLY BENASSAYAG is the co-inventor of the ‘450 patent.
c. That YARIV ALIMA is neither the sole nor joint inventor of the subject matter
reflected in the Patents, in whole or in part.
2. Direct that the United States Patent and Trademark office amend the following
patents to reflect proper inventorship as follows:
a. US D695,450
i. Correct Inventors: Eli Eroch & Charly Benassayag
b. US D710,488
i. Correct Inventor: Eli Eroch
c. US D717,994
8
d. US D720,094
e. US D720,095
f. US D720,496
g. US D720,497
h. US D720,499
i. US D722,956
j. US D723,732
k. US D724,265
l. US D743,622
m. US D745,213
n. US D752,281
9
o. US 9,375,034
p. US 9,379,364
q. US 9,498,588
i. Correct Inventors: Eli Eroch & Charly Benassayag
r. US 9,451,792
s. US 9,271,529
3. Award Plaintiffs damages in an amount to be proven at trial;
4. Award Plaintiff’s any punitive, exemplary, or other damages authorized by law.
5. Award Plaintiff its costs and attorney fees incurred in the prosecution of this
action pursuant to 35 U.S.C. § 285;
6. Grant any further relief as the Court may find just and proper in favor of the
Plaintiffs.
Dated: May 8, 2018
PEARSON BITMAN LLP
/s/ Ryan Marger

Ryan Marger, Esquire
Florida Bar No.: 044566
rmarger@pearsonbitman.com
rbitman@pearsonbitman.com
Pearson Bitman, LLP
485 N. Keller Rd., Suite 401
Maitland, Florida 32751
Telephone: (407) 647-0090
Facsimile: (407) 647-0092
Attorneys for Plaintiffs
10
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
EXHIBIT J
EXHIBIT K
EXHIBIT L
EXHIBIT M
EXHIBIT N
EXHIBIT O
EXHIBIT P
EXHIBIT Q
EXHIBIT R
EXHIBIT S
EXHIBIT T
Case 0:18-cv-61041-FAM Document 1-1 Entered on FLSD Docket 05/09/2018 Page 1 of 2
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

Atmos Nation, LLC / Atmos Technology, LLC / Eroch, Eli / Benassayag, Alima, Yariv
Charly
(b) County of Residence of First Listed Plaintiff Broward County, Florida County of Residence of First Listed Defendant Broward County, Florida
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Pearson Bitman, LLP / 485 N. Keller Road, Suite 401, Maitland, Florida
32751 / 407-647-0090
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
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’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
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’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
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’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
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’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. § 256; 35 U.S.C. § 100; 28 U.S.C. §§ 2201; 28 U.S.C. §§ 2202
VI. CAUSE OF ACTION Brief description of cause:
Declaratory Action to Correct Inventorship in Issued Patents
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
05/09/2018 /s/Ryan Marger
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE
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JS 44 Reverse (Rev. 06/17)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
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Date and Attorney Signature. Date and sign the civil cover sheet.
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Southern District
__________ District of
of Florida
__________
ATMOS NATION, LLC, ATMOS TECHNOLOGY, )

LLC, ELI EROCH, and CHARLY BENASSAYAG, )
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
YARIV ALIMA, )
)
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) YARIV ALIMA

1131 NW 94 WAY
PLANTION, FL. 33322
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
PEARSON BITMAN, LLP
RONNIE J. BITMAN, ESQ.
RYAN C. MARGER, ESQ.
485 N. KELLER RD. SUITE 401
MAITLAND, FL. 32751
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)

was received by me on (date) .
’ I personally served the summons on the individual at (place)

on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:

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Case 0:18-cv-61041-FAM Document 1 Entered on FLSD Docket 05/09/2018 Page 1 of 251

UNITED STATES DISTRICT COURT

CASE NO: ___________________

ATMOS NATION, LLC, ATMOS

COMPLAINT FOR DECLARATORY JUDGMENT

NATURE OF THE ACTION

1. This is an action for declaratory judgment to correct the incorrect inventorship

PARTIES, JURISDICTION, AND VENUE

2. Plaintiff, ATMOS NATION, LLC, is a Nevada Limited Liability Company, with

its principal place of business in Broward County, Florida.

3. Plaintiff, ATMOS TECHNOLOGY, LLC, is a Florida Limited Liability

Company, with its principal place of business in Broward County, Florida.

4. Plaintiff, ELI EROCH (“Eroch”), is an individual and Florida resident who

resides in Broward County, Florida.

5. Plaintiff, CHARLY BENASSAYAG (“Benassayag”), is an individual and Florida

resident who resides in Broward County, Florida.

6. Defendant YARIV ALIMA (“Alima”) is an individual and Florida resident who

resides in Broward County, Florida.

Benassayag, Shlomi Biton, and Yariv Alima.

businesses’ director of finance. Second, he was involved in day-to-day clerical functions.

procurement of Atmos’s Patents.

engineering or design that contributed to Atmos’s issued patents.

a. US D695,450 (Exhibit “A”);

i. Current Listed Inventor: Yariv Alima & Charly Benassayag

ii. Current Assignee: Atmos Technology, LLC

b. US D710,488 (Exhibit “B”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

c. US D717,994 (Exhibit “C”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

d. US D720,094 (Exhibit “D”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

e. US D720,095 (Exhibit “E”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

f. US D720,496 (Exhibit “F”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

g. US D720,497 (Exhibit “G”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

h. US D720,499 (Exhibit “H”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

i. US D722,956 (Exhibit “I”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

j. US D723,732 (Exhibit “J”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

k. US D724,265 (Exhibit “K”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

l. US D743,622 (Exhibit “L”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC

m. US D745,213 (Exhibit “M”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLCl

n. US D752,281 (Exhibit “N”);

i. Current Listed Inventor: Yariv Alima

ii. Current Assignee: Atmos Nation, LLC