Full opinion text
MEMORANDUM OPINION PAYNE, District Judge. A jury found the Plaintiff and Counterclaim Defendant Rambus, Inc., (“Ram-bus”), liable on Count 10 (actual fraud) and Count 11 (constructive fraud) of the counterclaims asserted by the Defendants and Counterclaim Plaintiffs Infineon Technologies AG, Infineon Technologies North America Corp. and Infineon Technologies Holding North America, Inc., (collectively “Infineon” hereinafter). The jury awarded nominal and punitive damages on the actual fraud claim and nominal damages on the constructive fraud claim. Having preserved its options during the trial, Rambus now has moved for judgment as a matter of law (“JMOL”) under Fed.R.Civ.P. 50, or, alternatively, for a new trial, under Fed.R.Civ.P. 59. Rambus contends that JMOL must be granted in its favor because: (1) Infineon failed to prove by clear and convincing evidence the elements of fraud under Virginia law; (2) nominal damages are not available in fraud actions under Virginia law, therefore the punitive damages awarded on the basis of the nominal damage award must be set aside; (3) the preponderance of the evidence demonstrates that Infineon’s fraud claims are barred by the two year statute of limitations, see Va.Code § 8.01-243 and 249(1); and (4) the Court erred in refusing to give Rambus’ proffered jury instruction pursuant to Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867 (Fed.Cir.1988). In its motion for a new trial, Rambus again alleges that: (1) Infineon did not establish the requisite elements of fraud; (2) the preponderance of the evidence shows that the fraud claims are barred by the statute of limitations; and (3) the Court erred in refusing to give Rambus’ proffered instruction pursuant to Kingsdown Medical. I. STATEMENT OF PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background Rambus filed a complaint on August 8, 2000, alleging that Infineon had infringed two of its patents. On October 20, 2000, Rambus filed a First Amended Complaint which added charges of infringement of two additional patents. On January 10, 2001, Infineon filed counterclaims alleging that: (1) it was entitled to a declaratory judgment that the four patents-in-suit were not infringed, were invalid and were unenforceable (Counts 1^); (2) Rambus breached its contract with JEDEC, a technology standards-setting body (Count 8); (3) Infineon was entitled to damages as a third-party beneficiary of that breached contract (Count 9); (4) Rambus committed actual fraud while a member of JEDEC (Count 10); (5) Rambus committed constructive fraud while a member of JEDEC (Count 11); (6) Rambus obtained monopoly power in the relevant technology market in violation of the Sherman Act, 15 U.S.C. § 2 (Count 12); (7) Rambus had attempted to obtain a monopoly in the relevant technology market in violation of the Sherman Act, 15 U.S.C. § 2 (Count 13); and (8) Rambus violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1961 et seq. through its fraudulent conduct at JEDEC (Count 14). An opinion was issued pursuant to Markman v. Westview Instrs. Inc., 52 F.3d 967 (Fed.Cir.1995), aff'd 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) to construe the disputed claim terms of the patents. Thereafter, Rambus abandoned, before trial, the charge of infringement as to one of the patents-in-suit, U.S. Patent No. 5,954,804. After the presentation of Rambus’ infringement case, the Court granted JMOL in Infineon’s favor on the remaining three patents-in-suit, U.S. Patent Nos. 5,953,263; 6,032,214; and 6,034,-918. Infineon then agreed that its request for a declaratory judgment on the validity and enforceability of the patents-in-suit and its claim for monopolization were mooted by the infringement ruling (Counts 1-4 and 12). At the close of Infineon’s case-in-chief on its counterclaims, the Court granted JMOL in favor of Rambus on the breach of contract claims (Counts 8 and 9) and the attempted monopolization claim (Count 13). At the conclusion of the two and one-half week trial, in a special verdict form, the jury found Rambus liable for committing actual and constructive fraud (Counts 10 and 11) in its conduct at JEDEC respecting both the Synchronous Dynamic Random Access Memory (“SDRAM”) and the Double Data Rate SDRAM (“DDR SDRAM”) standards adopted by JEDEC. The jury awarded nominal damages in the amount of $1.00 on each of the fraud claims and punitive damages in the amount of $3,500,000.00 on the actual fraud claim. Pursuant to Va.Code § 8.01-38.1, the Court reduced the amount of punitive damages to $350,000.00. The jury found in favor of Rambus on the RICO claim (Count 14). B. Factual Background Rambus is a technology company that designs and licenses computer memory systems. Rambus does not manufacture memory devices, but instead licenses its technologies to semiconductor manufacturers. The existence and the profitability of Rambus depends entirely on securing patents and licensing them to manufacturers. In April 1990, Rambus filed a patent application covering a new design for computer memory systems. The United States Patent and Trademark Office (“PTO”) determined that this application, U.S. Patent App. No. 07/510,898 (“the ’898 application”), contained 11 independent and distinct inventions. The PTO, therefore, required Rambus to select only one of those inventions to pursue in the ’898 application and allowed it to file divisional applications on the remaining inventions. Rambus did precisely that. As of the date of trial, Rambus had been granted 31 patents based on the 1990 ’898 application and numerous applications are currently pending. Many of these early patents are directed to “Rambus DRAMs” or “RDRAMs,” which is a predecessor to the SDRAM technology. Rambus has licensed several semiconductor manufacturers, including Infineon, for the RDRAM technology. The four patents-in-suit, however, are addressed to SDRAMs and DDR SDRAMs. In a SDRAM, the central processing unit, or CPU, sends and receives information from the memory device according to the “tick” of a “clock” contained within the memory system. In DDR SDRAMs, the rate of the transfer of information is doubled because information is sent on both the “tick” and the “tock” of the clock. Infineon makes and sells a variety of semiconductor devices to be used in computers, including SDRAMs and DDR SDRAMs. Infineon’s fraud claim focused on Rambus’ conduct while Rambus and Infineon were members of JEDEC, an association of semiconductor manufacturers and designers who collaborate to develop industry-wide technical standards for semiconductor products in order to ensure that Dynamic Random Access Memory (“DRAM”) products, made by different manufacturers, are compatible with one another. As part of its standardization process, JEDEC sought to avoid incorporating patented technology into its standards. To that end, JEDEC policy required members to disclose patents and patent applications that related to JE-DEC’s standard-setting work. If JEDEC decided to include a patented technology in a standard, its members who held patents on that technology were required (by agreement) to license that technology “under reasonable terms and conditions that are demonstrably free of any unfair discrimination.” A central issue in dispute at trial was whether, before 1993, JEDEC members had a duty to disclose pending patent applications (and not just patents that had been issued). In 1993, JEDEC Manual of Organization and Procedure JEP 21-1 was amended to state: The Chairperson of any JEDEC committee, subcommittee, or working group must call to the attention of all those present the requirements contained in EIA Legal Guides, and call attention to the obligation of all participants to inform the meeting of any knowledge they may have of any patents, or pending patents, that might be involved in the work they are undertaking. (emphasis added). See also id. (“Standards that call for use of a patented item or process may not be considered by a JEDEC committee unless all of the relevant technical information covered by the patent or pending patent is known to the committee ...”). Notwithstanding that the JEDEC manual did not explicitly provide, until 1993, that pending patents were to be disclosed, Infineon presented clear and convincing evidence at trial, through JEDEC members and representatives, that, at all times at issue before 1993, the duty to disclose applied to pending applications. JEDEC standard-setting activity was accomplished largely by committees and JEDEC Committee JC-42.3 was in charge of developing a standard for the SDRAM technology. Consideration of the SDRAM standard began in 1991 and a standard was eventually adopted in 1993. Various modifications were made to that standard from 1993 until 1995 and beyond. DDR SDRAM is the successor technology to the SDRAM technology. Committee JC^2.3 began work on the DDR SDRAM standard officially in 1996, although Infineon presented evidence showing that various technological concepts, which ultimately were included in the DDR SDRAM JEDEC standard, were discussed at Committee JC-42.3 meetings as early as 1992 and continuing thereafter throughout the time that Rambus was a member of JEDEC. The DDR SDRAM standard was published in 2000. Rambus attended its first JEDEC meeting in December 1991 and joined the organization a few days later. Rambus representatives Richard Crisp and Billy Garrett regularly attended Committee JC-42.3 meetings until December 1996. By letter dated June 17, 1996, Rambus formally withdrew from JEDEC. In the time that Rambus was a member of JEDEC, it never disclosed any patent applications. It did, however, disclose its first patent to be issued, U.S. Patent No. 5,243,703 (“the ’703 patent”), which issued on September 7, 1993. When Rambus withdrew from JE-DEC, one stated reason was that its licensing business plan may not be consistent with the patent policies of standards-setting bodies like JEDEC. The applications for the four patent-in-suit were submitted between 1997 and 1999 and issued in 1999 and 2000. However, the evidence showed that the four patents-in-suit are divisional or continuation applications of other Rambus patents which were pending during the time that Rambus was a member of JEDEC and at a time when Rambus had a duty to disclose its pending patents. Infineon offered extensive evidence which convinced the jury that Rambus committed fraud by: attending JEDEC meetings, listening to the proposed technology to be included in the JEDEC standard, remaining silent (in the face of a duty to disclose) about its pending patent applications during those meetings, and, with the assistance of its patent lawyers, obtaining additional patents to cover the features of the JEDEC SDRAM standard, even as those features were being considered at Committee JC-42.3 meetings. The foregoing recitation of the proof at trial provides a foundation for assessment of Rambus’ post-trial motions, although additional evidence relevant to the disposition of the motions will be discussed in greater detail as it relates to each particular basis for the challenges made by Ram-bus to the jury’s verdict. II. DISCUSSION: JUDGMENT AS A MATTER OF LAW A. Applicable Standard: Motion for Judgment as a Matter of Law Under Rule 50(b) of the Federal Rules of Civil Procedure, if a party has requested and been denied JMOL during trial, “[t]he movant may renew its request for judgment as a matter of law by filing a motion no later than 10 days after entry of judgment — and may alternatively request a new trial or join a motion for a new trial under Rule 59.” A district court may grant a motion under Rule 50(b) if it determines, “without weighing the evidence or considering the credibility of the witnesses, that substantial evidence does not support the jury’s findings.” Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir.1999), cert. denied 528 U.S. 877, 120 S.Ct. 184, 145 L.Ed.2d 155 (1999). See also Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.1985) (“The test for determining whether [JMOL] should be entered is whether, viewing the evidence in the light most favorable to the appelleeplaintiff, there is substantial evidence in the record to support the jury’s findings.”), cert. denied 475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986). Furthermore, “[t]he movant is entitled to judgment as a matter of law if the nonmoving party failed to make a showing on an essential element of his case with respect to which he had the burden of proof.” Singer v. Dungan, 45 F.3d 823, 827 (4th Cir.1995) (internal citations omitted). “Judgment as a matter of law is proper only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment.” Scheduled Airlines Traffic Offices, Inc. v. Objective, Inc., 180 F.3d 583, 588 (4th Cir.1999). The evidence must be viewed in the light most favorable to the non-moving party and every legitimate inference must be drawn in that party’s favor. See Tools USA and Equip. Co. v. Champ Frame Straightening Equip. Inc., 87 F.3d 654, 657 (4th Cir.1996). “The district court also ‘must view the evidence presented through the prism of the substantive evidentiary burden.’ ” Byelick v. Vivadelli, 79 F.Supp.2d 610, 616 (E.D.Va.1999) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (in the context of motion for summary judgment). B. The Constructive Fraud Verdict Infineon argued, and the jury found, that Rambus committed constructive fraud while it was a member of JE-DEC by failing to disclose its patents and pending patent applications which related to the standard-setting work underway at JEDEC, in spite of a duty to disclose those patents and patent applications. To prevail on a claim of constructive fraud, a plaintiff must prove: that a false representation of material fact was made, innocently or negligently, and that the injured party suffered damage as a result of his reliance on the misrepresentation. In addition, the evidence must show that the false representation was made so as to induce a reasonable person to believe it, with the intent that a person would act on this representation. Henderson v. Henderson, 255 Va. 122, 495 S.E.2d 496, 499 (1998) (citations omitted). Rambus has challenged the finding of constructive fraud on numerous evidentiary grounds and requests a grant of JMOL in its favor. Although the finding of liability on the constructive fraud claim must be set aside, that conclusion is reached purely as a matter of Virginia law, not on an asserted failure of the evidence. Earlier in these proceedings, when considering Rambus’ motion to dismiss Infi-neon’s counterclaims, the Court raised, sua sponte, the question whether Infineon could properly assert a constructive fraud claim based on a negligent omission. However, at that time, the motion to dismiss was denied and Infineon was allowed to proceed on the claim for constructive fraud so that, if the evidence established such a claim, it would be redressable. Notwithstanding that Rambus, in pressing its motion to dismiss, failed to initially raise the argument that Virginia law did not permit a claim for negligent omission, nor did it assert that argument as grounds for JMOL at trial or in the current motion, further independent consideration of the matter reveals that Count 11 should not have been submitted to the jury because constructive fraud cannot, as a matter of Virginia law, be premised on an fraudulent omission or concealment of a material fact. Instead, “a claim for fraud by omission requires deliberate non-disclosure” Bank of Montreal v. Signet Bank, 193 F.3d 818, 833 (4th Cir.1999) (emphasis added) (citing Hitachi Credit America Corp. v. Signet Bank, 166 F.3d 614, 628 (4th Cir.1999)), which, of course, precludes a claim for constructive fraud. The Fourth Circuit further explained that: [t]his observation is confirmed by the Supreme Court of Virginia, which requires “either an allegation or evidence of a knowing and a deliberate decision not to disclose a material fact” in a concealment claim. Id. (citing Norris v. Mitchell, 255 Va. 235, 495 S.E.2d 809, 812 (1998)). The constructive fraud claim, as pleaded and proved, should not have been presented to the jury; therefore, JMOL is granted in favor of Rambus on Count 11 and the jury verdict finding liability on that count is set aside. C. The Actual Fraud Verdict As To Rambus’ Conduct Respecting The JEDEC SDRAM Standard-Setting Process To support a claim of actual fraud, the plaintiff must prove: (1) a false representation or an omission (when there is a duty to disclose); (2) of a material fact; (3) made intentionally and knowingly; (4) with the intent to mislead; (5) reasonable reliance by the party mislead; and (6) resulting damage to the party misled. See ITT Hartford Group, Inc. v. Virginia Finan. Assoc., Inc., 258 Va. 193, 520 S.E.2d 355, 361 (1999); McDaniel v. Hodges, 176 Va. 519, 11 S.E.2d 623, 625 (1940). See also Bank of Montreal v. Signet Bank, 193 F.3d 818, 829 (4th Cir.1999) (a duty to disclose may arise if (1) a fact is material and the one concealing it has superior knowledge and knows that the other is acting upon the assumption that the fact does not exist or (2) if one party diverts the other from making prudent investigations); Allen Realty Corp. v. Holbert, 227 Va. 441, 318 S.E.2d 592, 597 (1984) (“Concealment of a material fact by one who knows that the other party is acting upon the assumption that the fact does not exist constitutes actionable fraud”). Rambus contends that it is entitled to JMOL on the actual fraud claim because Infineon failed to prove that: (1) Rambus had a duty to disclose its patents and patent applications; (2) Rambus violated that duty; (3) Rambus intended to mislead Infineon; (4) Infineon’s reliance was reasonable; and (5) Infineon sustained pecuniary damage caused by the fraud. As explained below, the clear and convincing evidence presented at trial permitted the jury to conclude that Rambus committed actual fraud as to the SDRAM standard-setting process at JEDEC. 1. The Duty To Disclose Pending Patent Applications As an initial matter, Rambus acknowledges that it had a duty to disclose any issued patents while it was a member of JEDEC and participated in JEDEC’s standard-setting process. Thus, the dispute at trial was whether patent applications were required to be disclosed. Rambus argues that, during the relevant timeframe when the SDRAM standard was being considered by Committee JC-42.3, JEDEC policy required only the disclosure of issued patents, not patent applications. Thus, because Rambus did not obtain its first patent until September 1993 (the ’703 patent), it contends that it complied with JEDEC policy by disclosing that patent. The evidence presented by Infineon at trial, however, tells a different story. Infi-neon presented testimony from three JE-DEC representatives indicating that JE-DEC policy always required the disclosure of pending patent applications, notwithstanding the absence of language to that effect in the JEDEC manual before 1993. For example, John Kelly, who is the president and former legal counsel of JEDEC, agreed at trial that, although the language of the manual changed in 1993, the JE-DEC policy requiring disclosure of patent applications did not change from 1991 to 1996. Former chairman of Committee JC-42.3 and JEDEC attendee from 1984-1998, Gordon Kelley, testified that: (1) before placing the requirement to disclose pending patent applications in the manual, the committee practiced that requirement; (2) the use of the term “known patent” in the pre-1993 JEDEC manuals applied to patent applications as well; and (3) from the discussions at every JEDEC meeting from 1991 to 1996, it was very clear to the membership that disclosure of applicable patents and patent applications was a requirement because it was key to the operation of the committee. Reese Brown, a JEDEC consultant and member of Committee JC-42.3 for 25 years, testified that, during the SDRAM standardization process from 1991 to 1996, if a member had a pending patent application relating to the standardization effort, the member had a duty to disclose the pending patent. The testimony of those witnesses respecting the policy and practice at JEDEC was corroborated by the evidence from JEDEC’s meeting minutes documenting that members of JEDEC actually disclosed pending patents prior to 1993. The fact that JEDEC members disclosed otherwise confidential patent applications during the applicable time period further underscores the existence of a duty to disclose at JEDEC because, absent a duty imposed by JEDEC membership, there is an entitlement to keep patent applications secret. Furthermore, Infineon demonstrated that Rambus officials themselves understood that it was JEDEC’s practice to require disclosure of pending patent applications. For example, an email from Ram-bus’ president David Mooring reported the events of a JEDEC meeting and stated: IBM raised the issue that they were aware that some “voting” JEDEC attendees have patents pending on SDRAMs that they have not made the commit[t]ee aware of. They will come to the next meeting with a list of the offenders. Likewise, after attending a JEDEC meeting, Rambus representative Billy Garrett reported that “Fujitsu indicated that they do have patents applied for, but that they will comply with the JEDEC requirements to make it a standard!!!”. Both the Mooring email and the Garrett notes were written in 1992, well within the timeframe of the SDRAM standard-setting effort. Viewing the evidence in the light most favorable to Infineon, the jury reasonably could have concluded, on the basis of clear and convincing evidence, that, (notwithstanding the absence, until 1993, of an explicit reference to pending patents in the JEDEC manual), all members, at all times here pertinent, had a known duty to disclose patent applications that related to the SDRAM standard-setting effort. Therefore, Rambus’ motion for JMOL on this ground is denied. 2. The Patents That Should Have Been Disclosed Rambus next argues that Infineon failed to present any evidence at trial identifying the patent applications that were pending during Rambus’ JEDEC membership which related to the proposed SDRAM standard. Thus, in its view, Infineon failed to show that the duty to disclose a pending patent was triggered. The evidence presented at trial established that, throughout its membership in JEDEC, Rambus had pending applications relating to JEDEC’s SDRAM work and that Rambus drafted more patent claims intentionally designed to cover the technology under consideration by JEDEC, thereby generating additional patent applications. Rambus had pending patent claims relating to 2-bank SDRAM designs, externally supplied reference voltage, phase lock loops (PLLs), programmable CAS latency and programmable burst length. For example, the evidence shows that, when JEDEC discussed adding a 2-bank design and burst-length technology to the SDRAM standard, Rambus had claims relating to those technologies pending in its first patent application, the ’898 application. Additionally, Patent Application No. 07/954,945, which was filed in September 1992 and issued in June 1994 as U.S. Patent No. 5,319,755, contains claims directed toward programmable burst length. Infineon also presented evidence establishing that U.S. Patent Application No. 07/847,961, which was filed by Rambus in March 1992 but was eventually abandoned, contains claims directed toward CAS latency, a technology that was incorporated into the SDRAM standard. Similarly, Patent Application No. 07/847,651, which was filed in March 1992 and issued as U.S. Patent No. 5,606,717 in February 1997, contain claims directed to CAS latency as well. As to PLL technology, which was discussed at JEDEC presentations in 1994 and 1995, Rambus had pending claims relating this technology in Patent Application No. 07/847,692, which was filed in March 1992, but was abandoned. Lastly, Rambus’ Patent Application No. 07/847,-532, which was filed in March 1992 and issued as U.S. Patent No. 5,473,575 in December 1995, contains claims directed to an externally supplied reference voltage. JEDEC discussed this technology in 1992 and it was ultimately incorporated into the SDRAM standard. Rambus argues that this aspect of Infi-neons’ claim fails because Infineon presented no expert testimony respecting the scope of the Rambus patents or patent applications and their relationship to JE-DEC’s SDRAM standard-setting effort. That argument misses the mark because the connection between Rambus’ patents and the SDRAM standard was sufficiently established through testimony given, and the documents generated, by Rambus’ executives. Although Infineon presented evidence too voluminous to catalog about Rambus’ pervasive expansion of its pending patent portfolio in response to discussions held at JEDEC standard-setting meetings, a few examples of that evidence help to illustrate the connection established at trial between the patents and JEDEC work. For instance, Richard Crisp testified that, while it was a member of JEDEC, Rambus repeatedly revised pending claims and drafted new claims for inclusion in pending or about-to-be-filed applications in order to cover JEDEC’s proposed SDRAM standard. In May 1992, Crisp met with Rambus’ patent attorney to “add claims to our patent application broad enough to cover the SDRAM if the SDRAM uses mode register and programmable CAS latency.” These features recently had been discussed at a JEDEC meeting which Crisp attended. Emails sent by Crisp during those meetings also shows that Rambus had patents covering externally supplied reference voltage technology, a topic then being discussed at the JEDEC standard-setting meetings. Similarly Rambus’ Chief Executive Officer Geoff Tate admitted that Rambus intentionally drafted claims to cover SDRAMs in the early 1990s. The documents exchanged between Rambus’ patent attorney Lester Vincent, Crisp and other Rambus employees further proved the extensive efforts to revise patent applications or draft new ones for the purpose of securing patent protection for the very technologies chosen for incorporation into JE-DEC’s forthcoming standard. Thus, Infineon proved, by clear and convincing evidence, that the duty to disclose was triggered because several of Rambus’ pending patents related to JEDEC’s SDRAM standard-setting effort. The JE-DEC Manual unambiguously states that the patent disclosure policy applied to any patents or pending patents “that might be involved in the work [the JEDEC committee is] undertaking” and Infineon’s witnesses testified that this requirement was practiced prior to 1993. Infineon’s evidence showed that Rambus had patents pending on a two bank design, programmable CAS latency, programmable burst length, PLL and an externally supplied reference voltage, all of which related to JEDEC’s standardization efforts. Because the jury reasonably could have drawn the conclusion that these patents should have been disclosed, the motion for JMOL on this ground is denied. 3. Breach Of The Duty To Disclose Rambus next argues that Infineon failed to prove that Rambus breached the duty to disclose its patents and patent applications. Specifically, Rambus asserts that, because the applications for the patents-in-suit were not filed or issued until after Rambus left JEDEC, no patents or pending patents existed for Rambus to disclose. Rambus’ argument, however, proceeds upon an artificial limitation of the scope of the fraud alleged and proven by Infineon. Infineon did not circumscribe its fraud claim only to the four patents-in-suit; instead, it alleged that Rambus committed fraud upon Infineon (as a member of the JEDEC committee), by failing to disclose any pending patents related to the SDRAM work. Moreover, Rambus simply ignores the evidence that the patents-in-suit are merely refinements of the continuation and divisional applications that were pending while Rambus was a member of JEDEC and that were themselves revised to ensure that Rambus’ patents would cover products compliant with the forthcoming JEDEC standard. As an alternate argument, Rambus contends that it satisfied its duty of disclosure. Specifically, it points to: (1) discussions in JEDEC meetings about the public international patent application (which shares an identical written description to the patents in the U.S. Patent family tree); (2) the disclosure of Rambus’ Technical Description to Siemens (a corporate predecessor of Infineon) in the early 1990s; (3) the disclosure by Richard Crisp of the ’703 patent in a September 1993 JEDEC meeting; and (4) the disclosure of numerous patents in its withdrawal letter from JE-DEC. Rambus’ application for an international patent (through the World Intellectual Property Organization, or “WIPO”) became public information in October 1991. This WIPO application contains the same written description as its U.S. counterpart — the undisclosed ’898 application filed in April 1990. Likewise, the undisclosed divisional and continuation applications originating from the 1990 application share this same written description. Thus, Ram-bus posits that it met its duty because the SDRAM applications (that were not disclosed), as well as the patents-in-suit, are based on the very same written description as in the WIPO application. Similarly, Rambus also contends that it met its disclosure obligation by sharing its Technical Description with Infineon’s predecessor, Siemens, in November 1990. The Technical Description, which is based on the written description of the patents, was used by Rambus as an informational document in its early licensing discussions with various semiconductor manufacturers in connection with RDRAM technology. Rambus alleges that, during the licensing negotiations, it revealed much of its patent portfolio to Infineon (and other JEDEC members), though at that time, Rambus did not yet have any issued patents. The evidence presented by Infineon, however, permitted the jury to conclude that the discussions between Rambus and Siemens, focused solely on RDRAMs. Rambus offered no evidence demonstrating that it ever told Siemens that it believed its Technical Description could cover SDRAMs, as well as RDRAMs. This same shortcoming applies to the WIPO patent application; while the written description may be the same as that in the undisclosed SDRAM patents, Rambus presented no evidence at trial indicating that the description, on its face, relates to SDRAMs. Further, at the relevant time, the WIPO patent claims based on that written description related to only RDRAM, as reflected in Rambus’ pleadings in earlier motions for summary judgment. As a third theory of compliance with its duty to disclose, Rambus argues that disclosure of the ’703 patent was sufficient. Although Richard Crisp testified that the ’703 patent related only to RDRAMs, Rambus contends now that, with the revelation of this patent, all Rambus’ other patents and patent applications were revealed. Thus, any JEDEC member could obtain copies of the original ’898 application; the continuation application that resulted in U.S. Patent No. 5,319,755 (“the ’755 patent”); and the prosecution history of the ’755 patent, which is the progenitor of three of the patents-in-suit, and is the first patent issued to Rambus which relates to SDRAMs. Infineon, however, proved that revelation of the ’703 patent, if anything, actually misrepresented the scope of Rambus’ pending patents because the ’703 patent admittedly did not relate to the SDRAM work of the committee and, when Crisp revealed the patent, he failed to say anything about Rambus’ numerous other pending applications, which did relate to the SDRAM standardization work. Furthermore, as to the ’755 patent, Infineon demonstrated that (even if one were to have investigated the history of this patent) the ’703 patent did not disclose the application for the ’755 patent because the ’703 patent application only cross-referenced those patent applications pending at the time that the ’703 application was filed. Because the application for the ’755 patent was filed after the ’703 application, the ’755 patent was not included in the patent history of the ’703. Infineon offered evidence from which the jury could conclude that the ’703 patent did not reveal the ’755 patent and Rambus offered no evidence to the contrary. Lastly, Rambus asserts that the letter by which it withdrew from JEDEC disclosed every patent issued to Rambus as of June 1996 which related to SDRAMs. That is not borne out by the evidence. Indeed, a key patent, U.S. Patent No. 5,513,327, was omitted from the list. Ram-bus asserted that the omission was inadvertent. Infineon offered evidence that the omission was deliberate. Further, Rambus contends that the withdrawal letter satisfied the duty to disclose because Rambus stated therein that it “has applied for a number of patents in order to protect Rambus technology.” However, there was no evidence that this disclosure satisfied the requirements of JEDEC’s patent disclosure policy; and the text certainly does not disclose that Rambus had applied for patents that encompassed the JEDEC SDRAM standard. In sum, clear- and convincing evidence supports the jury’s finding that Rambus breached its duty to disclose its patents and patent applications. The jury reasonably could have believed that the existence of the public WIPO application was not sufficient to satisfy the duty to disclose because the written description contained therein gave no indication that Rambus intended to expand its patent applications to cover SDRAMs. The jury, again, could reasonably conclude that the licensing discussions between Rambus and Siemens/In-fineon were limited to RDRAM and that Siemens/Infineon had no reason to believe that Rambus intended to expand its intellectual property beyond RDRAMs. As to the disclosure of the ’703 patent, Rambus admits that this patent related only to RDRAM. Although Rambus makes the argument that the ’703 disclosed every then-pending patent, the evidence at trial supports the conclusion that, if one traced Rambus’ rather voluminous patent tree from the ’703 patent, one would not discover the ’755 patent application. Lastly, there was no evidence demonstrating that Rambus’ withdrawal letter, or the list of patents attached thereto, satisfied that duty. 4. Evidence Of Intent to Mislead Rambus contends that the jury verdict finding Rambus liable for actual fraud is unsupported by the evidence because Infi-neon failed to show that Rambus acted knowingly and intentionally with the intent to mislead. See Richmond Metro. Auth. v. McDevitt St Bovis, Inc., 256 Va. 553, 507 S.E.2d 344, 346 (1998) (the misrepresentation or omission must be made knowingly and intentionally). See also Bank of Montreal, 193 F.3d at 833 (“a claim for fraud by omission requires deliberate nondisclosure”). Instead, Rambus contends that the evidence could support, at most, the conclusion that Rambus mistakenly believed that it had no duty to disclose patent applications. That argument is utterly without merit. Infineon, for example, proved that Ram-bus’ president, David Mooring, and its JE-DEC representatives, Garrett and Crisp, knew of the disclosure obligation. Ram-bus’ executives discussed these duties with the lawyers who were prosecuting the company’s patent applications. Rambus’ conduct, viewed in light of that knowledge, underscores the proof of scienter. Thus, Infineon, demonstrated that Rambus, through its executives, sought to patent the technology being discussed at JEDEC so that it could later bring patent infringement suits. Furthermore, e-mails written by Richard Crisp show that, rather than informing JEDEC about its issued and pending patents, Rambus intentionally decided to keep these secret. For example, after being questioned about Rambus patents on the Synclink proposal (a technology not at issue in this action), Crisp wrote to the executives at Rambus the following: We may want to walk into the next JEDEC meeting and simply provide a list of patent numbers which have issued and say “we are not lawyers, we will pass no judgment of infringement or non-infringement, but here are our issued patent numbers, you decide for yourselves what does and does not infringe.” On the other hand, we may not want to make it easy for all to figure out what we have especially if nothing looks really strong. If we have a really strong one that has issued that is key to the operation of the SLDRAM, then we may want to play that card, but again with the above suggested disclaimer. A second email written by Crisp also discloses an intent to deliberately remain silent about the company’s patents and patent applications. After attending a JEDEC meeting in which a JEDEC member presented a proposal describing the advantages of incorporating an on-chip PLL in the SDRAM, Crisp wrote: They plan on putting a PLL on board their SDRAMs to improve the output delay by about 2 ns. They want to put the PLL on every chip and let the user use it or not depending on whether they need it ... Obviously we need to think about our patent position on this for potential discussion with NEC regarding patent issues here. * * * I believe that we now have seen that others are seriously planning inclusion of PLLs on board SDRAMS ... What is the exact status of the patent with the PLL claim?* * * Lastly, Rambus’ own documents refute the notion that it harbored the mistaken belief that patent applications were not required to be disclosed. In his notes regarding the Synclink proposal, Crisp stated that “Synclink is being sponsored by an organization with a less stringent patent policy than JEDEC.'” (emphasis added). In other words, under a less demanding non-JEDEC standard-setting process, patentees were “free to patent whatever they desire, and are not bound to relinquish any of their rights to their patents by presenting their ideas for standardization.” The clear inference of Crisp’s statement, and the one drawn by the jury, is that Crisp believed that JE-DEC had a more restrictive patent policy which imposed a duty of disclosure and limited the ability to patent subject matter considered by the standard-setting body. Other documents presented at trial from Rambus’ executives also demonstrate that Rambus clearly understood the scope of the patent policy. Rambus’ argument that it had only a mistaken belief regarding JEDEC’s disclosure policy presents no basis upon which to grant JMOL, for there is ample evidence of scienter. 5. Reasonable Reliance Rambus next argues that Infineon failed to show that its reliance on Rambus’ non-disclosures at JEDEC meetings was reasonable under the circumstances. See McDaniel v. Hodges, 176 Va. 519, 11 S.E.2d 623, 625 (1940). Infineon agrees that its reliance had to have been reasonable, but asserts that its reliance was, in fact, reasonable. Rambus argues that Infineon’s reliance cannot be considered in the vacuum of JEDEC activities, but instead must be viewed in light of the relationship between the parties — -a relationship that began several years before Infineon designed its first SDRAM in 1996. To support that argument, Rambus again points to the RDRAM licensing discussions between Rambus and Siemens in 1991 and argues that, during those discussions, Siemens thoroughly studied all of Rambus’ technology. Rambus also contends that executives at Siemens realized that Rambus’ technology could have a broader scope that just RDRAMS, therefore any reliance on Rambus’ silence at JEDEC was unreasonable. Infineon offered proof from which the jury could have found that the course of conduct between the parties reveals not that Infineon kneiu of the patents, but rather that it had concerns about Rambus’ patent rights. Infineon also proved that Rambus intentionally misled Infineon when it and other JEDEC members raised those concerns with Rambus, thus inducing Infineon to believe that Rambus did not have any SDRAM patents or applications. For example, Rambus presented documents and testimony indicating that Willibald Meyer, Infineon’s JEDEC representative, had concerns as early as 1992 that Rambus may have patent applications addressed to the 2-bank SDRAM design then being considered by JEDEC. In pursuing this concern, at a May 1992 JE-DEC meeting, Meyer requested the Chairman of Committee JC-42.3, Gordon Kelley, to ask Richard Crisp about Rambus’ patent rights relating to the 2-bank SDRAM. Crisp made no disclosure, leading Meyer and others to believe that Ram-bus had nothing that required disclosure. At this same 1992 JEDEC meeting, another JEDEC member mentioned that Ram-bus had an international patent application (the WIPO application), but that the patent claims were likely invalidated by prior art. Rambus again made no disclosure. Infineon also presented testimony from Meyer indicating that he was misled by the disclosure of the ’703 patent because, when he read that patent, he concluded that Rambus’ technology therein disclosed related only to RDRAMs. Rambus took, in this litigation, that very same position in” the motions for summary judgment. The jury then was entitled to find that Meyer’s assessment was a reasonable one. Lastly, Infineon presented documents from Meyer, composed at the time the SDRAM standard was under consideration, indicating that Meyer believed the JEDEC SDRAM standard was “public domain,” which again supports the jury’s conclusion. Without weighing the credibility of the evidence, there was more than one reasonable conclusion that could be drawn from the evidence regarding the reasonableness of Infineon’s reliance and the jury’s conclusion that Infineon acted reasonably is supported by clear and convincing evidence. Therefore, Rambus’ motion for JMOL on this ground is denied. 6. Harm Caused By The Fraud Rambus contends that JMOL must be granted in its favor because the only injury that Infineon claims to have suffered as a result of the fraud is the incurrence of attorneys’ fees and, as a matter of law, attorneys’ fees cannot be the damage or injury element of a claim for fraud under Virginia law. See ITT Hartford Group, Inc. v. Virginia Finan. Assoc., Inc., 258 Va. 193, 520 S.E.2d 355, 361 (1999) (to support a claim of fraud, the plaintiff must prove resulting damage to the complaining party). Rambus is correct in asserting that the only monetary injury claimed by Infineon as the injury component of its fraud claim is the attorneys’ fees it paid to the law firm of Slater & Matsil to review, and help outline the defense of, Rambus’ infringement claims. Analysis of the issue begins with recognition that Virginia follows the general “American Rule” that “in the absence of any contractual or statutory liability therefor, attorneys’ fees and expenses incurred by the plaintiff in the litigation of his claim against the defendant ... are not recoverable ...” Hiss v. Friedberg, 201 Va. 572, 112 S.E.2d 871, 875 (1960). See also Prospect Dev. Co. v. Bershader, 258 Va. 75, 515 S.E.2d 291, 800 (1999) (“The general rule in this Commonwealth is that in the absence of a statute or contract to the contrary, a court may not award attorney’s fees to the prevailing party.”); 44 A.L.R.4th 776, § 2(a) (“The general rule carried over from common law is that a successful party in litigation is not entitled to recover from his opponent the attorneys’ fees.”). Other than the nominal, statutory costs, incurred in prosecuting or defending the action. Infineon argues that this case is an exception to the general rule because the attorneys’ fees it paid are a damage or injury proximately caused by the fraud committed by Rambus. Specifically, Infi-neon showed at trial that it was forced to pay attorneys’ fees to Slater & Matsil in connection with the analysis and defense of Rambus’ patent infringement charges. Also, Infineon presented evidence in the form of Rambus’ business plans and testimony from which the jury could have concluded that the patent infringement suit was part and parcel of Rambus’ fraud- — the last step in the fraud. Infineon proved that, because of Rambus’ fraudulent behavior while it was a member of JEDEC, Infineon designed the JEDEC compliant products which were alleged to have infringed the patents-in-suit. When Rambus instituted the final step in its fraudulent plan by charging that those patents were infringed by JEDEC-compliant SDRAM products, Rambus caused Infineon to expend substantial sums of money to investigate the merits of, and defend against, the infringement claims. a. Exceptions To The General Rule There are several exceptions to the American rule foreclosing recovery of attorneys’ fees in most cases. For example, courts generally allow a party to recover attorneys’ fees when the “tort of another” has caused him to incur attorneys’ fees during litigation with a third party. The Restatement (Second) of Torts § 914 (1979) explains: § 914. EXPENSE OF LITIGATION (1) The damages in a tort action do not ordinarily include compensation for attorney fees or other expenses of the litigation. (2) One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action. Accord Brochner v. Western Ins. Co., 724 P.2d 1293, 1299 (Colo.1986); Tetherow v. Wolfe, 228 Neb. 631, 392 N.W.2d 374, 379 (1986); Pullman Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 340 (Tenn.1985); Gray v. Don Miller & Assoc., Inc., 35 Cal.3d 498, 198 Cal.Rptr. 551, 674 P.2d 253, 258 (1984); Department of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 468 A.2d 150, 166 (N.J.1983). Virginia courts have adopted that exception by recognizing the analogous principle that “where a breach of contract has forced the plaintiff to maintain or defend a suit with a third person, he may recover the counsel fees incurred by him in the former suit provided they are reasonable in amount and reasonably incurred.” Hiss, 201 Va. 572, 112 S.E.2d at 875-76. See also Owen v. Shelton, 221 Va. 1051, 277 S.E.2d 189, 192 (1981); Cemetery Consultants, Inc. v. Ware, 211 Va. 784, 180 S.E.2d 528 (1971). In those cases, the attorneys’ fees were not awarded to a party because of his status as a prevailing party, but instead were permitted as an element of the injury caused by the defendant’s conduct. See Hiss, 201 Va. 572, 112 S.E.2d at 875 (“The troublesome question is whether in this action for breach of contract the [plaintiffs] are entitled to recover of [the defendants] as an element of their damages the costs of their litigation, including counsel fees, with [a third party].”) (emphasis added). The recovery of fees in cases of that sort, however, generally has been limited to fees incurred during litigation with third parties, not in antecedent litigation between the same parties. See Hiss, 201 Va. 572, 112 S.E.2d at 875 (“Nor are attorneys’ fees and other expenses incurred in former litigation between the same parties recoverable in a subsequent action.”) (citing Am.Jur. Damages, § 142, pp. 500, 551; Burruss v. Hines, 94 Va. 413, 26 S.E. 875 (1897); Wisecarver v. Wisecarver, 97 Va. 452, 34 S.E. 56 (1899)). Nevertheless, it is generally recognized that, in an appropriate case, a party also can recover attorneys’ fees incurred in previous litigation between the same parties: As a general rule, litigation costs and attorney’s fees incurred in prior litigation against the same defendant are not recoverable in subsequent action. However, the rule is different if the plaintiff has a cause of action for financial loss resulting directly from the previous action. Thus, counsel fees and other reasonable expenses damages in defending a suit that was maliciously instituted against the plaintiff may be recovered in the action for malicious prosecution. Also, an exception to the general rule exists if the wrongful action of the defendant has placed the plaintiff in such a position that it is necessary to incur legal expenses to protect his interest. 22 Am.Jur.2d Damages § 617 (1988) (emphasis added). Virginia courts have recognized this exception and have allowed attorneys’ fees incurred in previous litigation between the same parties to be recovered as damage in actions for the intentional torts of malicious prosecution and false imprisonment. For example, in Burruss v. Hines, 94 Va. 413, 26 S.E. 875, 878 (1897), the Supreme Court of Virginia explained that “[t]he general rule is that counsel fees are not recoverable as damages; but on the trial of an action for malicious prosecution or false imprisonment, where exemplary damages are recoverable, the fees paid or incurred to counsel for defending the original suit or proceeding may be proved, and if reasonable and necessarily incurred, may be taken into consideration by the jury in the assessment of damages.” Similarly, in actions for false imprisonment “damages awarded must be compensatory for the loss of time; for the suffering, bodily and mental, sustained by reason of such wrongful act or acts; and for expenses incurred in procuring discharge from restraint, including a reasonable attorney’s fee.” Bolton v. Vellines, 94 Va. 393, 26 S.E. 847, 850 (1897) (emphasis added). See also Parsons v. Harper, 57 Va. 64, 1860 WL 4034, * 6 (Va.1860) (allowing recovery of attorneys’ fees for action for false imprisonment). To recover attorneys’ fees, however, Virginia law requires a showing that the injury inflicted in the underlying action was wanton or malicious. “The rule in Virginia as to the recovery of counsel fees as damages is well established in Burruss, ... Parsons ... Wisecarver, ... and Morgan v. Haley, [107 Va. 331, 58 S.E. 564 (1907)], wherein it is held that except where the injury is luanton or malicious and exemplary damages are recoverable, the allowance of fees paid counsel for defending the original proceedings is not proper.” Kemp v. Miller, 166 Va. 661, 186 S.E. 99, 106 (1936) (emphasis added); Burruss, 26 S.E. at 878 (“But if the injury was not wanton or malicious, and exemplary damages are not recoverable, the allowance of counsel fees is improper.”). See also Sperry Rand Corp. v. A-T-O, Inc., 447 F.2d 1387, 1394 (4th Cir.1971) (same). Having explored the landscape of the Virginia rule, the question now becomes whether this case, or any aspect of it, fits within that rule. b. Attorneys’ Fees As Injury For Actual Fraud It has been observed that, in assessing whether attorneys’ fees in an underlying suit can be recovered in an action for fraud, “[t]he rule that attorneys’ fees are not recoverable (absent contractual provision or statutory authority), while superficially a bar, is not really applicable.” Robert L. Dunn, Recovery of Damages for Fraud, § 4.13, pgs. 200-01 (Lawpress 1995). That statement is followed by the explanation that, when a defendant’s fraudulent misrepresentations force a party to prosecute or defend other litigation, attorneys’ fees incurred in that other litigation are “recoverable when they are proximately caused by a misrepresentation.” Id. See also 22 Am.Jur.2d Damages § 617 (“Also, an exception to the general rule exists if the wrongful action of the defendant has placed the plaintiff in such a position that it is necessary to incur legal expenses to protect his interest.”); 44 A.L.R.4th 776 § 2(a) (1986) (“Courts have allowed recovery of attorneys’ fees under a distinct exception permitting the successful party in a fraud action to recover from the losing party the attorneys’ fees incurred by the successful party in prior litigation or claims involving third partiés, which litigation or claims were proximately caused by the fraud perpetrated on the successful party.”) (emphasis added). Numerous jurisdictions have subscribed to this principle by allowing a party to recover attorneys’ fees expended in a previous litigation when that litigation was proximately caused by the defendant’s fraud. The decisions, however, deal primarily with previous litigation between the plaintiff and a third party. See Feit v. Donahue, 826 P.2d 407 (Colo.Ct.App.1992) (plaintiff in a real estate fraud case allowed to recover attorneys’ fees incurred in attempting to obtain a variance when the seller concealed the fact that a variance was required); Fagerberg v. LeBlanc, 164 Mich.App. 349, 416 N.W.2d 438 (1987) (allowing recovery of attorneys’ and surveyors’ fees where seller fraudulent misrepresented the boundaries of the land); Gray v. Don Miller & Assoc., Inc., 35 Cal.3d 498, 198 Cal.Rptr. 551, 674 P.2d 253 (Ca.1984) (plaintiff allowed to recover attorneys’ fees incurred in prior specific performance suit on the sale of a home when real estate broker falsely represented that an offer had been accepted by the sellers on the home); Forrester v. State Bank, 52 Ill.App.3d 34, 6 Ill.Dec. 957, 363 N.E.2d 904 (1977) (allowing a plaintiff in a fraud action to recover attorneys’ fees incurred in a prior bankruptcy proceeding against a debtor when the defendant bank fraudulently misrepresented the assets of the debtor); Turner v. Zip Motors, Inc., 245 Iowa 1091, 65 N.W.2d 427 (Iowa 1954) (allowing recovery of attorneys’ fees in a prior action for replevin brought by third party and caused by the defendant’s agent’s conversion of an automobile). Nevertheless, the fundamental premise upon which attorneys’ fees were allowed in those cases is closely akin to the rationale, which is followed in Virginia, for allowing attorneys’ fees to be an element of damage or injury in certain intentional torts: when a party’s intentionally tortious act forces the other party necessarily to incur attorneys’ fees as a direct consequence of that act, the party should be able to recover the attorneys’ fees consequentially expended. Whether that underlying action was between the plaintiff and the tortfeasor or the plaintiff and a third party, the underlying rationale remains the same. In Virginia, in order to establish a cognizable claim for actual fraud, the plaintiff must establish some type of injury. One seeking to recover for fraud must show that the act resulted “in some loss, damage, detriment or injury to him.” Lloyd v. Smith, 150 Va. 132, 142 S.E. 363, 367 (1928) (emphasis added). Infineon has proved the injury component of its actual fraud claim by demonstrating that: (1) it sustained an injury by incurring attorneys’ fees and (2) the need to incur those attorneys’ fees was proximately caused by Rambus’ fraud. This case began when Rambus asserted four patents against Infineon’s JEDEC-compliant SDRAM and DDR SDRAM products. Infineon was therefore forced to employ attorneys in the investigation of those claims of infringement and in possible defense thereof. Further, the record is: (1) that Infineon had designed its products to comply with the JEDEC standard and built manufacturing lines in Germany and the United States to make those products; and (2) that, if Infineon was to continue to sell those products, it had no choice but to defend the infringement action which was part and parcel of Rambus’ fraud. After the Court granted judgment as a matter of law in Infineon’s favor on the infringement claims (at the end of Rambus’ case-in-chief), Infineon argued that it was nevertheless harmed by Ram-bus’ fraudulent scheme because, even though its products had been determined not to infringe the patents-in-suit, Infineon had incurred considerable expense in analyzing and outlining a defense to those patent claims. Thus, Infineon proved that it sustained pecuniary loss as a result of Rambus’ intentionally fraudulent behavior at JEDEC. Indeed, the defense of the patent suit was “a direct and necessary consequence,” Hiss, 201 Va. 572, 112 S.E.2d at 876; of Rambus’ plan to attend JEDEC, remain silent about its patent applications, obtain additional patent claims that covered JE-DEC technology, and then assert those patents against JEDEC members whose products conformed to the JEDEC standard in order to obtain their assent to license agreements. The result reached here comports with the conclusion reached by the Seventh Circuit in Roboserve, Inc. v. Kato Kagaku Co., Ltd., 78 F.3d 266 (7th Cir.1996), cert. denied 519 U.S. 928, 117 S.Ct. 297, 136 L.Ed.2d 215 (1996) under similar facts in a fraud ease. Applying Illinois law, the Ro-boset've court explained that “[cjompensa-tory damages for fraud are intended to compensate for any injury which is the direct and natural consequence of the plaintiffs acting on the faith of defendant’s representations.” Id. at 273-74 (internal quotations omitted). Thus, the plaintiff could recover its “out-of-pocket” expenses, including attorneys’ fees expended in reliance on that misrepresentation. Id. at 274. Because the defendant fraudulently led the plaintiff to believe that it would be awarded a contract to provide services to a hotel, the plaintiff could recover attorneys’ fees expended in preparing new proposals for, and in conducting negotiations to provide, those services. Id More importantly, it is entirely appropriate, under settled precepts of Virginia law, to allow Infineon to claim attorneys’ fees as its injury on the actual fraud claim because the jury found that Rambus had committed the fraud “maliciously or wantonly or oppressively” and awarded $3.5 million in punitive damages on Infineon’s actual fraud claim. Indeed, a finding of that sort supplied the raison d’etre for sustaining an award of attorneys’ fees between the same parties in a malicious prosecution or false imprisonment case under Virginia law. Thus, the award of attorneys’ fees is appropriate in the present fraud action because “the injury is wanton or malicious and exemplary damages are recoverable.” Kemp, 186 S.E. at 105. See also Sperry Rand, 447 F.2d at 1393. To hold otherwise would effect an inequitable result. Contrary to Rambus’ argument, Infineon was not insulated from the fraud injury merely because Infineon prevailed on the patent infringement aspect of this action. Infineon escaped one possible harm which could have resulted from the fraud — namely, being found liable for infringing the patents-in-suit after having made a substantial investment in research and development of its products and setting up manufacturing facilities to produce the allegedly infringing computer memory chip. Faced with that risk of harm, Infi-neon had no viable option other than to have a law firm analyze the infringement claims made by Rambus before the litigation began and to help structure a defense to the litigation once Rambus instituted this action. Further efforts to reach a business compromise were essentially foreclosed when Rambus commenced infringement litigation here and in Germany. Yet, the attorneys’ fees would not have been sustained (and the current dispute avoided entirely) if Rambus had made the disclosures required by the JEDEC policy because the JEDEC committee could have revised the standard, Infineon could have designed its products differently or Infi-neon could have negotiated reasonable royalty rates from Rambus before it had invested in the set up of its manufacturing lines (a factor which of course, injects strong adverse leverage into the negotiating equation). To accept the contention that Infineon has suffered no harm simply because it prevailed on Rambus’ patent infringement action would be to allow Rambus to secure a windfall from the fraud that the jury found it had committed. c. The Noerr-Pennington Doctrine Rambus contends that Infineon’s attorneys’ fees cannot be recovered in an action for fraud because the Noerr-