Conk v. Jordan Outdoor Enterprises et al
MEMORANDUM DECISION AND ORDER denying 277 Motion for Attorney Fees. Signed by Judge David Nuffer on 12/5/17 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
NATHAN T. CONK,
MEMORANDUM DECISION AND
ORDER DENYING  HAAS
OUTDOORS, INC.’S MOTION FOR
HAAS OUTDOORS, INC. et al.,
Case No. 2:10-cv-00005-DN
District Judge David Nuffer
Defendant Haas Outdoors, Inc. (“Haas”) filed a Motion for Attorney Fees (the “Fees
Motion”) 1 seeking fees and expenses incurred in defending this action from plaintiff Nathan T.
Conk. Attorney fees may be awarded to the prevailing party in patent actions in “exceptional
cases.” 2 Even after the Supreme Court relaxed the Federal Circuit’s “overly rigid” standard for
imposing attorney fees in patent cases in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 3
attorney fees for a prevailing party are far from presumed or standard. To the contrary, a case
must “stand out from others with respect to the substantive strength of the party’s litigating
position” or “the unreasonable manner in which the case was litigated.” 4 Because this is not an
exceptional case, the Fees Motion is denied.
This case was not litigated in an unreasonable manner. Haas argues that Conk is a “patent
troll” because (1) he sued numerous defendants after the camouflage business based on his
Motion for Attorney Fees, docket no. 277, filed July 13, 2017.
35 U.S.C. § 285.
134 S.Ct. 1749, 1756 (rejecting the higher standard for applying 35 U.S.C. § 285 under Brooks Furniture Mfg.,
Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378 (Fed. Cir. 2005)).
patented designs closed down; and (2) because he sought resolutions at less than the cost of a full
defense in litigation. 5 Haas has no evidence beyond insinuation to support its claim regarding its
co-defendants’ settlement terms, let alone evidence of an unreasonable settlement strategy on
Conk’s part. 6
This case is distinguishable from Novartis Corporation v. Webvention Holdings LLC,7
cited by Haas. In Novartis, the District of Maryland granted a motion for attorney fees under
35 U.S.C. § 285 because the plaintiff pursued nuisance settlements by exploiting the high cost of
patent litigation and by unnecessarily multiplying the proceedings, even after the Patent and
Trademark Office (“PTO”) found its patent claims invalid. 8 Here, Conk is the inventor of the
camouflage designs at issue, and not just a patent warehouse. Although his efforts to run a
profitable company selling products based on his designs failed, he had no less of a right to
enforce his patents if they were valid. Conk cannot be faulted for attempting to enforce
intellectual property rights in which he reasonably believed he had an interest. Nor can Conk be
faulted for reaching settlement agreements with all of the other defendants. Most cases settle, and
settlement of disputes by the parties is unquestionably favored. When Conk’s position became
untenable, he stipulated to dismissal. 9
Nor does this case stand out from others with respect to the weakness of Conk’s position
against Haas. Conk obtained two U.S. patents, Patent No. 6,342,290 (“the ‘290 patent”) and
Patent No. 6,682,879 (“the ‘879 patent”), which he sought to enforce with this suit.10 Because
Fees Motion at 9–10.
Civil No. CCB-11-3620, 2015 WL 6669158 (D. Md. Oct. 28, 2015).
Id. at *1–6.
Joint Motion for Entry of Judgment, docket no. 273, filed June 23, 2017.
Complaint at ¶ 3, docket no. 2, filed January 4, 2010.
patents are presumed valid, a patent holder has no obligation to assess validity prior to filing
infringement claims. 11 Conk’s claims survived summary judgment. 12 He withdrew his claims of
infringement of the ‘290 patent when PTO made a preliminary finding on an ex parte
reexamination that the ‘290 patent was invalid. 13 After withstanding an initial ex parte
reexamination, the ‘879 patent’s claims were cancelled by the PTO on Haas’s two subsequent ex
parte reexamination petitions. 14 Based on the PTO’s findings, Conk conceded his infringement
claims under the ‘290 patent by stipulating to judgment of dismissal. 15
Haas argues that Conk failed to conduct an adequate pre-filing investigation, as
demonstrated by Conk “including with the accused products four of Haas’s patterns that had
been on the market for over a year prior to Conk’s application filing dates.” Haas raised this
argument in its summary judgment motion, 16 which was denied. 17 Haas has not shown that the
depth of Conk’s pre-filing investigation makes this an exceptional case.
Conk’s patents did not hold up under reexamination by the PTO, and therefore Conk
stipulated to dismissal. Conk lost this case, but losing in patent litigation is not exceptional.
Attorney fees are awarded only in exceptional cases. The Fees Motion is denied.
Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1303 (Fed. Cir. 2004) (citing 35 U.S.C. § 282).
Order Denying Summary Judgment.
Motion at 5.
Id. at 6–7.
Joint Motion for Entry of Judgment.
Fees Motion at 10 (citing Motion for Summary Judgment at 1–2, docket no. 161, filed September 20, 2010).
Order Denying Summary Judgment, docket no. 240, filed May 31, 2011.
Having reviewed the Fees Motion, and for good cause appearing,
IT IS HEREBY ORDERED that the Fees Motion 18 is DENIED.
Dated December 5, 2017.
BY THE COURT:
United States District Judge
Docket no. 277.
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