1 The Honorabl e Mary An n Whipple wa s subs titut ed on th e panel for William T.

Bodoh, who r

etired from the benc h as of January 2, 2004. ELECTRONIC C ITATION: 2004 FED App. 0001P (6th C ir.)

File Name: 04 b0001p.06

BA NKRUPTC Y A PPELLA TE PA NEL OF TH E SIXTH CIR CUIT

In re: WILLIAM FARRIS TRANTHAM , ) ) Debtor. )

_____________________________________ ) ) MONSANTO COMPANY , ) ) Plaintiff-Appella nt, ) ) v. ) No. 03-8010 ) WILLIAM FARRIS TRANTHAM , ) ) Defendant-Appellee. )

_____________________________________ )

Appeal from the Unite d States Bankruptcy Court for the W estern District of Tennesse e at Memphis

. No. 02-27859-K; Adv . No. 02-0596

. Argued : November 10, 2003
Decided and Fi led: January 30, 2004
Before: AUG, COOK, and WHIPPLE , Bankruptcy Appellate Panel Judges. 1

____________________ COUNSEL
ARGUED: Joseph N. Mole, FRILOT, PARTRIDGE, KOHN KE & C LEMENTS, New Orleans, Louisiana, for Ap pellant. P. Pr esto n W ilson, GO TTEN, W ILSON, S AVORY & BEARD , Memphis, Tennessee, for Appellee. ON BRIEF: Joseph N. Mole, Michael H. Pinkerton, Miles P. Clements, FR ILOT, PARTRIDGE, KOHNKE &C LEMENTS, New O rleans, Louisiana, for Appellan t. P. Preston W ilson, GOTTEN, W ILSON, SAVORY & BEARD, Memphi s, Tennessee, for Appel lee.-2- ____________________ OPINION

____________________ J. VINCENT AUG , JR., Bankr uptcy Appell ate Panel Judge . Monsanto Company (Monsanto)appeals the bankruptcy court’s memorandum and order denying its motion for summary judgment on its complaint f or nondischargeability of Monsanto’s cl aim against the Debtor, William Farr is Trantham (Trant ham). The bankruptc y court determin ed that the pre-petiti on patent infring ement judgment obtai ned by Monsanto against Trantham in the amount of $592,677.89 isdischarg eable.

I. ISSUES ON APP EAL 1. Whether the bank ruptcy co urt applied thewrong standard for a findi ng of “willful and malicious injury” under 11 U.S.C. § 523(a)(6). 2. Whether the debt for willful p atent infringement is dischar

geable.

II. JURISDICT ION AND STANDA RD OF REVIEW The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States Distric t Court for the Western District of Tennessee h as authorized appeals to the BA P. A "final order " of a bankruptcy

court may b e appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it "ends t he litigati on on the m erits and lea ves nothing for the court to do but execute the judgment." Midland Asphalt Cor

p. v. United S tates , 489 U.S. 794, 798 , 109 S. Ct. 1494, 1497 (1989) (citationsomitted). The bankruptcy court's order denying Monsanto’s motion for sum mary judgment

and finding, bas ed on the collateral es toppel effe ct of the district court’s decisions, t hat Trantham’s debt to Monsanto was discharg eable is a final order. Orders deny ing moti ons f or s ummar

y j udg ment

are rev iewed for

abus e of d iscre tion. Romstadt

v. Allstat

e Ins. Co., 59 F.3d 608 (6th Cir. 1995). “‘An abuse of discretion occurs only w hen the [bankruptc y] court relies upon c learly erroneous finding s of fact or when it improperly applies the law or uses an erron eous legal standard.’” Sicherm an v. Diam oncut, Inc. (In r e Sol Bergm an Estate Jeweler s, Inc.) , 225 B.R. 896, 899(B.A.P. 6th C ir. 1998)-3-

(alteration in original) (qu oting Mapother & Mapother, P.S.C. v. Cooper ( In re Downs ), 103 F.3d 472, 480-81 ( 6th Cir. 1996) ). The application o f col lateral estoppel is r eviewe d de novo. See Markowitz v. Ca mp be ll

(I n r e M ar ko wi tz) , 190 F.3d 455, 461 (6th Cir.1999). “De nov o review requires the Panel to rev iew ques tions of law independent

of the bankruptcy

court’s dete rmination.” First Union Mortgage Corp. v. Eubanks (In re Eubanks) , 219 B.R. 468, 469 (B.A.P. 6th Cir. 1998) (citation omitted). “W hen reviewing a summary judgment deci sion, an a ppellate court must confine its re view to the evidence as submitted to the district court.” Markowitz , 190 F.3d at 463.

III. FACTS Before delving into Monsanto’s issues on appeal, it is neces sary toreview the facts giving rise to th e patent infringement judgment which Monsanto asserts is nondischarg eable. In its decision finding that Tranth am had infringed Monsan to’s patents, the U. S. Dis trict Cour

t for the Western Distric t of Tennessee giv

es a succinc

t versi on of these backgr

ound facts. The court

states: This case stems from [M onsanto’s] patents on techno logy that allows a seed producer of cottonseed and soybean seeds to inser t genes into the seed to make the result ing plants resistant to glysopha te herbicides, such as Roundup herbicide, aproduct manufactured by [Monsanto]. Seeds w ith the patente d techno logy ar e called RoundupReady®. A grower using the Roundup Read y®seed can spray his crops with the Roundup herbicide, or another glyso phate herbicide , thereby k illing the weeds i n his field w ithout damaging his crops. The technology can also be i njected intocottonseed to make the resulting cotton pla nts in sect repell ant. Cottonseed u sing the techno logy is called Bollgard® Cotton. Cottonseed containing both versi ons of the technolog y is cal led Bollgar d® with Roundup Read y® C otton. [Monsanto’s] Roundup Ready ® and Bollgar

d® gene techno logy is protected by three patents, which were issued prior to the events giving rise to this cont rover sy. [Monsanto] sells the gene technol ogy to s eed producers un der a license tous e the technolog y in the pr oduction of cottonseed and soybeans. The seed producer s then sell t he seed treated w ith the techno logy to retailers

or to growers, bot h of whom must obtai n licenses from [ Mo nsanto] before selling or using the seeds wi th the Roundup Ready ® or Bollgard® technology

. . . . In orde r for an indiv idual farmer to us e seed produced w ith the patented gene technolog y, the farmer must be licensed to u se the product. Under the licensi ng arrang ement, a grow er is only

allowed to use the-4-

technolog y in on e growi ng season and i s prohibited from saving for later plan ting an y of the seed pr oduced from plants g rown usi ng the purchas ed seed. The grower is also prohibited from s elling s aved seed or transferring the seed to anyone else for planti ng.

. . . [Trant ham] is a farmer in Tipton C ounty, Tennessee. [Trantham] has never obtained a license from [Monsanto] to use its technology in cottonseed. In 1999, [Tranth am] pur chased, along with James Wood, approximately 900 bushels of cottonseed from the Bu rlison Gi n, located near Coving ton, Tenness ee. [Trantham] then used t hat seed to plant over 100 acres of land with cotton seed. [Trantham] appl ied Roundup herbi cide over the cott on, s ome of wh ich wa s ki lled. In 2000, [Trantham] used seed purchased from the Burlison Gin to plant his cotton crops and a gain applied Roundup herbici de to the crop. [Trant ham] also purchased soybeans in 1999 from a retail er named Terra Seed and Chemical Compan y. [ Trantha m] planted and harvested the soybeans in 1999, and then plante d his 2000 cropwith soy beans saved from the previou s year's

harvest. [Monsanto] was gran ted l eave by this Court

to enter [Trantham’ s] land to collect sampl es of the cotton and s oybean crop s to b e tested for the presence of the Roundu p R ead y® and Bollg ard® gene tech nolo gy. [Monsanto] used three separ ate testing procedu res on the cotton and soybean crops, and detected [Monsta nto’s] patented gene tech nology in 93% of the cotton samples and 100% of the soybean samples. MonsantoCo. v. Tr

antham , 156 F. Supp. 2d 855, 858-59 (W.D. Tenn. 2001). Subseq uent to the distri ct court’s summary judg ment that T rantham had in fa ct infringed Monsanto’s patent, a separate jury trial was held to determine Monsanto’s dam ages. The jury found by clear and conv incing ev idence that Trantham had willful ly infrin ged Monsanto’ s patents and awarded damages of $34,3 92. Trantham f iled a brief in opposition tothe jury ’s finding of willfulness and Monsanto filed a Motion for Ju dgment as a Mat ter of Law, as serting t hat the amount of the jury’s award as to a reasonable cottonseed royalty was inadequate an d not supported by

the evidenc e. The district court declined to set aside the jury’s finding of willfulness. The court stated that “[t]hereis more than ampl e evidence to support the j ury determi nation that Trantham acted willfully in infringing Monsanto’s patents. In fact, Trantham admitted at tri al that he simply

could not or d id not want to pay the pr ice that Mons anto charged.”-5-

On the other hand, the districtcourt agr eed with M onsanto that the amount of the verdictwas not s upp ort ed by the evidence and, with the encouragemen t of the district court, the parties agreed that the comp ensatory damages with r espect to the cot

tonseed technology

were $87,022 .50. Monstanto also filed a post-trial memoran dum in the distri ct c ourt reques ting additional re lief in the form of tre ble damages, attorney fees and ex pert wit ness fees. In analyzi ng whether M onsanto was entitled to treble damages, the distri ct court cons idered: (1) whether the infringer deliberately copied the idea or design of another ; (2) w hether the infringer had a good faith belief that the patent was i nvalid; ( 3) the infringer ’s behavio r as
a party to t he litigat ion; (4) the infringer’ s size and financial condition; ( 5) the closenes s of the case; (6) t he dura tion of the infr inger ’s mi sconduc t; (7) any

remedial acti on taken by the infringer; (8) the infri nger’s moti vation for harm; and (9) whether the infringer at tempted to conceal his

misconduct. In review ing these factor s and deciding that enhancement of damages was appropriate, the district court noted that (i) “Trantham admitted t hat he infringe d simply to avoi d paying the license fee;”(ii) the infringement i ssue was d ecided on summary judgment; and t here for e, th e issu e ofTran tham ’s wi l lfulness was not a close one in the case; (iii) Trantham took no remedial actio n; (iv ) the dece ption was carried out over a period of two year

s; and (v)

there wasevidence th at Trantham sought to conceal hi s infringement by

sending cot

tonseed to be deli nted under a false name. The court concl uded that it was appropriate to award treble damage s, even th ough itfound w ith r

espect to ite m (8) a bove ( mo ti vation), that “[t]here is no evi dence that Trantham was motivated by an intent to harm Monsanto.” In deciding that it was also appropriate to award 50% of Monsanto’s attorney fees in the case, thedistrict

court stated: In this case, t h e Court concludes that an award of att orneys’ fees is appropriate. Trantham deliber ately used M onsanto’s pate nted techno logy without obtaining a license a nd withou t paying for it. In addi tion, he undertook

to conceal his infr ingement. Trantham admitted at trial that his sole moti vatio n was t o avoi d payi ng fo r a lice nse a nd ab idin g by i ts terms. The pol icy

behi nd [3 5 U. S.C .] § 285 o f dis cour agi ng i nfr ingem ent is wellserved by awarding attorneys’ fees under these circumstances. Finally , the d istrict court determined that Monsan to was not entitled to its expert witness fees in excess

of the statut ory l imit set forth in 28 U.S.C. § 1821 (b). In making this2 The judgment was composed of compensatory

damages of $106,132.50 trebled to $ 318,397.5 0; prejudgment interest of $9,005.27 and Monsanto’sattorney fees of $265,275.12.

-6- decision, the district court noted that before suc h an award could be made, the court must make a finding of “fraud, abuse of the judicial process or something tantamou nt to the very temple of justice (being) denied.” The district court found that “ there has been nei ther fraud, abuse of judicial process, or any other gross i njustice per petrated by Trantham. This

case does not qualify as the kind of ‘very exceptional’ case which would warrant the award of additional ex pert fees.” The final judgment

was entered by the district court on May 14, 2002, against Trantham in the amount of $592, 677.89. 2 Trantham did not appe al that judg ment. On May 10, 2002 , Trantham filed h is chapt er 7 petition. Monsanto filed a timely complaint

objec ting to the disch arge of its p atent i nfring eme nt judg me nt pursuant to 11 U.S.C. § 523(a )(6). M onsanto also filed a motion for summary judgment asser

ting that, based on the collateral estoppel ef fect of the district court’s prior decisions, it was entit led to have itsjudgment

determined nondischa rgeable. Monsanto argued that (i) the district court jury had already dec ided that Trantham i ntentiona lly i nfringed Monsa nto’s patent; (ii) Trantham knew that his intent ional acts w ould harm Monsanto beca use Trantham utilized Monsanto’s technology without pay ing the req uired fee s; a nd (iii) Trantham admitted that he could not or did not wan t to pay the p rice Monsanto charged. Monsanto also pointed out that t he district court jury

and judicial findings of willful ness coupled with

an award of tr

eble damag es and atto rney fees, show ed that an intenti onal tort had occurred and justified a fin ding that M onsanto’s prepet ition patent infring ement judgment was nondischargeable under § 523(a)(6). In response to Monsanto’s motion for summary judgment, Tranth am argued that the districtcourt did not

make a finding t hatTrantham acted w ith malice and that the doctri ne of collateral estoppel is, therefore, not appli cable. He r equested a separate heari ng on the sole i ssue of malice. A lternativ ely, he ar gued that the bank ruptcy co urt shou ld giv e collateral estoppel eff ect to the district court’s fin dings t hat there was no evidence that3 In this appeal bot h of the parties are in agr eement that the doctr ine of collater al estoppel applies in this case with respect to the dist rict court decisions and each party argues that those district court decisions suppo rt the party’s respective position in this case.

-7- Trantham was motivated by an intent to har m Monsanto and no ev idence of fraud or any other gros s injustice on Trantham’s par t. 3 The bank ruptcy co urt found that the is sue of will fulness was determined by the districtcourt proceed ing and that Trantham basi cally conceded that iss ue. The bankruptcy

cou rt also stated that, in its opinion, “the meaning of the two wo rds (i.e., ‘will ful’ and ‘malicious’) were intended by the Congressto be treated differe ntly and possess entirely separate and d istinct legal si gnificance under section 523(a) (6).” Appl ying Markowitz v. Campbell

(I n r e M ar ko wi tz) , 190 F.3d 455, 464 (6th Cir. 1999), the bankruptcy court found thatit was required “ to determine w hether t he debtor subjec tively desired to i ntend the h arm or had know ledge that har m is substanti ally cer tain to occur

or result from th e debtor’s acti ons.” In determining that the prepeti tion pat ent i nfringement judg ment was dis chargeable, the bankruptcy court noted that Trantham as serts that his subjective intent was not to harm Monsanto but rather to produce an ef ficient and profita ble crop to save his farm. It also stated that the distr ict court’ s find ings i.e., that Trantham was not motiva ted by an intent to harm Monsanto and that there was no evidence that Trantham committed fraud, abuse of the judicial process or other g ross injus tice, played a significantrole in it s determination thatMonsanto had not met it s burden o f showing a will ful and maliciousinjury under § 523(a)(6). Monsanto filed this tim ely appeal.

IV. DISC USSION Summary Judgment Stand ard Bankruptcy Rule 7056 gov erns summary

judgment

in advers ary proc eedings. The ban kruptcy court denied M onsanto’s motion for summary ju dgment. Trantham had not filed a cross moti on for summary j udgment. However, the bankruptcycourt we nt on to find thatTrantham’s debt owed to Monsa nto was dischargeable, in effect making a summary judgment

ruli ng in favor

of Trant ham. See In re Hunt, 65 B.R. 627 ( Bankr. M.D. Fla. 1986) (holding it appropriate for the court to en ter summary judgment in favor of the no nmoving-8-

party if the court deter mines that there are no genuine iss ue s of material fact and nonmoving party is

entitled to j udgment a s a mat ter of law) ; see also Fed. R. Ci v. P. 56; Fed. R. Bankr . P. 7056. Accor ding to the Si xth Cir

cuit, Ac ourt m ust grant summary judgment "if the pleadings, depositions, answers to interrog ato ries, and admis sions on file, together w ith the affidavits, if any, show

thatthere is no g enuine issue as to any material fact and that the moving par ty is enti tled to judgment as a matter of law. " Under this test, the moving party may discharge its burden by "pointin g out to the [ban krup tcy] court ... that ther e is an absence of evidence to s upport the nonmoving party's

case." The nonmoving party cannot rest on its pleadings, butmust ide ntif y s peci fic fa cts suppo rted by affidavits, or by depositions, answers to interrogatories, and admissions on f ile that show there is a genuine iss ue for trial. Although we must draw all inferences in favor of the nonmoving party, it must present significa nt and probative evidence in su pport o f its complaint. "Th e mere existence of a scintilla ofevidence in support of the [nonmoving party's ] position will be insufficient; ther e must be evidence on which the jury could reasonably find for the [nonmovi ng party]." Gibson v. Gibson (

In re Gibson) , 219 B.R. 195, 198(B.A.P. 6th C ir. 1998) ( alterationsin original) (qu oting Ha ll v. Tol lett , 128 F.3d 418, 421- 22 (6th Cir .1997) (inter nal citations omitted)). As noted below, collateral estoppel req uired the bankr uptcy cour t to apply t he district court’s findi ngs of fact.

Collateral Estoppel The Supreme Court has held that the doctrine of collateral estopp el is applicable in dischargeab ility

proceedings

. Grogan v. Garner , 498 U.S. 279, 284 n.11, 111 S. Ct. 654, 658 (1991). Federal common law governs the claim-preclusive effe ct of all federal court judgments. Semtek Int’ l Inc. v. Loc

kheed Martin Corp. , 531 U.S. 497, 507 -8, 121 S. Ct. 1021, 1027-28 (2001). W hile the federal rule applied to federal judgments in diversi ty

cases generally

requires the applicati on of the issue preclusion rules of the state in which the federal diversity court sits, federal issue preclusion law applies to fe deral judgments in federal question cases. See id. The issue of w illful infrin gement of Monsanto’ s patent presented a federal quest ion in the dis trict cour t. Thus, this cour

t must apply federal issue preclusion l aw as follow s: The Sixth Ci rcui t has addressed a federal rule of issue preclusion, requiri ng “that

the precise issue in the l atter proceedings

have been rai sed in the prior proceed ing, that the issue was actually litigated, and that the determination was neces sary to t he outcome." Spilman v . Harley , 656 F. 2d-9-

224, 228 (6th Cir . 1981), overruled on o ther grounds, B ay Ar ea F actors v. Calvert (In re Cal

vert) , 105 F. 3d 315, 319 (6th Cir. 1997). Tha t court observed that mutuality of parties "is no l onger necess ary in some circumstances ." Id. Gonzal ez v . Moffitt ( In re Moffit

t) , 252 B.R. 916, 921 (B.A.P. 6th Cir. 2000). We agree w ith the bankruptcy cour t’s dete rmination that t he issue of “w illfulness w as actually raised, li tigated, and determined because adjudication of the will fulness issue w as necessary t o the out come of the patent infri ngement action.”And for the reaso ns that fol low, we conclude that it was appropriate for the ban kruptcy court to give the district court’s decisions collateral es toppel effect on the iss ue of whether Tra ntham’s debt to Monsanto was the result of a willful injury as defined under 11 U .S.C. § 523(a) (6) by t he Sixth Circuit. We further conclude that the finding s made by the distri ct court or by

the jury in that case also support a fin ding of a “malicious” injury under 11 U.S.C. § 523(a)(6).

Section 523(a)(6) Analysis : The discharge exceptions are to be narrowly construed in favor of the de btor. Meyersv. I.R.S. (In re Meyers) , 196 F.3d 622 (6th Cir. 1999). The party seeking the exception to discharge bears t he burden of proof by a preponderance of the evidence. Grogan , 498 U.S. at 286. The Bankruptcy

Code provi des that an indiv idual debtor is not disc harged from any debt“for willfu l and mali ciou s inju ry by the debt or to anot her e ntit y o r to the prope rty of another entity.”11 U.S.C. § 523(a)(6). “From the pl ain languag e of the statute, the judgment

must be for an injury

that is both w illful and mali cious. The absenc e of one creates a dischargeable debt.” Markowitz , 190 F.3d at 463. In Kawaauhau v. Geiger , 523 U.S. 57, 61, 118 S. Ct. 974, 97 7 (1998 ), theSuprem e Court held that finding nondischarg eability of a debt under § 523( a)(6) “takes a deliberate
or intentional injury , not merely a deliberate or intentional act

that leads to i njury. Geiger , 523 U.S. at 61. The Supreme Court furt her stated that the (a)(6) formulation triggers in the lawyer’s mind the category “intentional torts,” as disting uished from negl igent or r eckless tor

ts. Inten tional torts generall y

require that the actor i ntend “the cons equ ence s of a n act ,” no t simply , “the act it

self.” Geiger , 523 U.S. at 61- 62 (alterati on in orig inal) (ci ting Resta tement (Second) of Tor ts § 8A cmt. a (196 4)). The Supr eme Court also stated that itsprior deci sion in McIntyre v.-10-

Kavanaugh , 242 U.S. 138, 37 S . Ct. 38 (1916) was in acco rd with its constru ction of § 523(a)(6) as set forth in Geiger . In McIntyre , the Co urt found that a broker had “deprive [d] another of his property forever by deliberately disposing of it without semblance of autho rity.” Id. at 141. “The Cour t held that this

act constituted an intentional injury to property of another, bringing it within the discharge exception.” Geiger , 523 U.S. at 63. In analyzing § 523(a)(6) after Geiger , the Sixth Circuit states: [T]he [Supreme] Court’s citation to t he Restatement’s definition of “inte ntional tor ts” underscores the close relationship be tween the Restatement’s definition of those torts and the definition of “w illful and mali cious injur y.” The Restatement

defines intentional torts as those motivated by a desire toinflict injuryor those substantially certain toresult in injury. Although theSuprem e Court identified a log ical associ ation bet wee n intentional torts and the requirements

of § 523(a)(6), it neither ex pressly adopted nor quoted that portion of the Restatement discussing “substantially certain” consequences. Nonetheless, from the

Court’s language and analysis in Geiger, we now hold that unless “the actor desir es to cause the c

onseque n ces of his act, . . . or believes that the consequences are substantially certain to result fr om it,” he has not committed

a “wi llful and m alicious i

njury” as defined under § 523(a)(6)

. Markowitz , 1 9 0 F

. 3 d a t 4 6 4 ( c i t a t i o n s o m i t t e d ) ( e m p h a s i s a d d e d )

. We are bound by the Sixth Circuit’ s interpreta tion and expos ition of Geiger , and so the bankr uptcy cour ts in this circuit, in order

to find a “w illful” inj ury under § 523(a)(6), must determine ei ther that (i ) the actor desired to cause the conseq uences of the act or (ii) the actor believed thatthe giv en consequencesof his act were substantially certain to result from the act. Markowitz , 190 F.3d at 464. The bankruptcy

court corr

ectly stated the test to det er mine “wi llful” inju ry for purposes of nondischarg eability under § 523(a) (6) in the Six th Circui t based on Markowitz

. However, ithalted its analysis after its determinatio n that Trantham d id not desire to cause the consequences of his act and thus failed to consider the second prong of the Markowitz test: Whether Trantham believed that t he consequencesof his act we re substantially certain to result. Those consequences were the f inancial harm caused to Mons anto. W here Trantham’s stated pu rpose in willfully infringing Monsanto’s patents was not to pay Monsanto for its tech nolog y, w hat els e coul d Trant ham believ e would be t he consequences of his act but that Monsanto wo uld be deprived of money to w hich it was entitled? The findin gs o f the district court we re applied in bankruptcy court vi a collateral estoppel. The district court found, inte r alia, (1) that Tra n tham had admitte d that his-11-

infringement

was s olel y for the purp ose of avoiding the payment of the l icense fee to Mon santo (i .e., enrichi ng himself), a nd (2) that ther e was some ev idence that Trantham tried to conceal his infringement by using a falsename. Thus Trantham must have known, and therefore believ

ed, t hat econom ic damage to M onsanto was substantiall y certai n to result from his failure to pay the license fee because he wa s in a zero-sum situation. He could only ga in if Monsanto l ost. Trantham’s efforts at concealment show that he believed Monsanto was damage d and had good cause to pursu e him if the damage came to light. Itis true that the d istrict court also found that the re was no evidence to suggest Trantham was specificallymotivated by an intent to injure Monsanto. How ever, that finding is not parti cularly

relevant when reviewing the second part of the test becaus e the s ame
can be sa id of almo st an y inten tional tortfeasor , for example, abank robber. His chief motive is to enrich hims elf, not financiall y injur e the bank. The injury , howeve r, is bound to occur, and i n civil terms it cons titutes an intentional tort against the ba nk. As the Supreme Court pointed out in Geiger , the “willful and malicious” standard in § 523(a)(6) brings to the legal mi nd the idea of an intent ional tort. That is how p atent infringement

has h isto rical ly bee n viewe d. “In frin geme nt, wh ethe r dire ct or c ontr ibut ory, is essentially

a tort, and impl ies invas ion of some right of the patentee.” Carbice Corp. v. Am. Patents Dev. C

orp., 283 U.S. 27, 33, 51 S. Ct. 334, 336 ( 1931). The patent infringement

statute that author ized the r ecovery of damages stated tha t they “may be recovered by action on the case,” 9 Charles Alan W right & Arthur R. Miller, Federal Practice and Procedure § 2312 (2d ed. 1994), and the pr oper action for i nfringement under the patent laws

was tres pass on the case. Moore v. Marsh , 74 U.S. 515, 520 (1868); AgawamCo. v. Jorda n, 74 U.S. 583, 593 ( 1868); Myers v. C unningham , 44 F. 346, 349 (Ohio C.C. 1890) ( “[A]ctions o f trespass on the case were first prescribed by congress for patentsuits in 1790 , and . . . the l aw has never since been c hanged in th at particular .” ); Honeywell, Inc. v. Metz

Apparatewerke, 509 F.2d 1137, 1141 (7th Cir. 1975) (“Infri ngement of a patent is a tort.”); Graham Eng’ g Corp. v. Kemp Prods. Ltd., 418 F. Supp. 915, 919 (N.D. Ohio 1976). Because the district court in this case f ound Trantham ’s actions were willful, those actions constitute an intentional tort which, acc ording to G eiger , could lead to nondischarg eability

under § 523(a) (6). In a substantia llysimilar case, also inv olving a Monsanto prep etition patent infringement

judgment, the U .S. B ankrup tcy Cour t for the Western Distric t of Louisiana-12-

found that the judg ment owed by the farmer/debtor to Monsanto was nondischargeable under § 523(a)(6)

. Monsanto Co. v . Thomason (In re Thom ason) , Ch. 11 C ase No . 00- 31755, Adv. No. 0 1-3012, slip op. (Bankr. W.D. La. Apr. 4, 200 3). In Tho mason , the distric t cou rt also found that the re was no evidence that the debtor intende d any harm toward Monsanto. How ever, in f inding t he debt nondischargeable , the bankruptcy court stated: The district court also o bserved that the defendants “deli berately an d with for et hought hatched and carried o ut a plan to appropriate plaint iffs’ patented and certi fica ted t echn ology f or th eir own use.” Debtor ’s reliance on the trial cour t’s co mme nt th at no harm was int end ed to wa rd Monsanto . . . “other than deprivation of the com panies’ rightful royalti es and profits” is misplaced, since w hen read in conte xt, the c omment merely i dentifies the onlyposs ible injur y that c ould have b een inte nde d, i. e., p ecun iary in jury. That the wil lfulness determi nati on was a pa rt of the judgment in the prior action is bey

ond peradventur

e. Thomason , slip op. at 8. Althou gh itis unreported, we find the decision of the bankruptcy court in Thomason to be persuasive. In the case at ba r, as in Thomason , the Debtor carried out hi s plan to appropriate Monsanto’s technology without any

intention of pay ing Monsanto for i t. In addition, Trantham attem pted to conceal his efforts. In effect, Trantham was planni ng to permanently de prive M onsanto of its prop erty (i ts license fees) without the semblance of authority (the licen se agr eement) t o use the patent tec hnology. See McIntyre , 242 U.S. at 141. W hile the bankruptcy court corr

ectly appl ied collater

al esto ppel to t he i ssueof a “willful” injury, we con clude th at the f indings of the district court also require a determination thatTrantham’s debt

was the result of a “malicious” injury. Under § 523(a)(6), “‘[m]alicious’

means in conscious

disregar d of one’s duties or

without j ust cause or ex cuse; it does not require ill- wi ll or specific intent.” Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 198 6). The districtcourt’s findings that Trantha m “deliberately” infringed Monsanto’s patent for the sole purpose of avoi ding payment of the license fee and then under to ok to conceal his actions is also tantamountto a finding that Trantha m acted in conscious disregard of his known duty

to Monsanto w ith respect to the patent.-13- V. CONCLUSI ON Trantham must have bel ieved that t he conseque nc es of his refusal to pay the license fee would be financial injury to Monsa nto becau se, in the z ero-sum situa tion inherent wherever something is reserved to the use of a particular entity, Trantham could onlyprofit if Monsanto lost its reservation without prope r compensation, i. e., the g ain he sought could come only at M onsanto’s ex pense. Thus, the Markowitz standard of “willful” injuryis met. In a ddition, be cause Trantham acted in consciousdisregar d of his duty to Monsanto, the requir

ement of a “malicio us” injury is also met. See Ma rkowitz , 19 0 F.3d at463 (holding the absence of either the wil lful or malici ous requir ement from § 523(a)( 6) creates a dis chargeable de bt). Moreover, patent

infringement, b eing the inv asion of a protected in terest, is a tort. Here, according to the district court’s findi ng of willfulness, it was an intentional tort. Since the Supreme Cour

t ob served that § 523(a)(6) was probably focused on inten tional torts, Trantham’s infringement i n this case w ould pass muster

under Geiger

and McIntyre as well

as Markowitz

. The decision of the bankrup tcy courtis REVERSED . Monsanto’sentire judg ment for willful patent infring eme nt in the amount of $592,677. 89 is nondisch argeable. See Cohen v. De La Cruz , 523 U.S. 213, 118 S. Ct. 1212 (199 8) (finding that bankruptcy law prevented the di scharge of all liability arising from fraud, including actual an d treble damages); Spring Works, Inc. v. Sarff ( In re Sarff) , 242 B.R. 62 0, 627 (B.A. P. 6th Cir. 2000) (recognizing no distinction between compensat ory and punitive damages).