United States District Court, D. Utah, Central Division
NATHAN T. CONK, Plaintiff,
HAAS OUTDOORS, INC. et al., Defendants.
MEMORANDUM DECISION AND ORDER DENYING  HAAS
OUTDOORS, INC.'S MOTION FOR ATTORNEY FEES
NUFFER, UNITED STATES DISTRICT JUDGE
Judge David Nuffer Defendant Haas Outdoors, Inc.
(“Haas”) filed a Motion for Attorney Fees (the
“Fees Motion”) 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.” 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., 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.” Because this is not an exceptional case,
the Fees Motion is denied.
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 patented designs closed down; and (2) because he sought
resolutions at less than the cost of a full defense in
litigation. 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.
case is distinguishable from Novartis Corporation v.
Webvention Holdings LLC, 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. 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.
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. Because patents are presumed valid, a
patent holder has no obligation to assess validity prior to
filing infringement claims. Conk's claims survived
summary judgment. 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. 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. Based on the PTO's
findings, Conk conceded his infringement claims under the
‘290 patent by stipulating to judgment of
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,  which was
denied. Haas has not shown that the depth of
Conk's pre-filing investigation makes this an exceptional
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
reviewed the Fees Motion, and for good cause appearing, IT IS
HEREBY ORDERED that the Fees Motion is DENIED.
 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 ...