       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

            SMITH & NEPHEW, INC. AND
             JOHN O. HAYHURST, M.D.,
                Plaintiffs-Appellants,
                           v.
                  ARTHREX, INC.,
                  Defendant-Appellee.
              __________________________

                      2012-1265
              __________________________

    Appeal from the United States District Court for the
District of Oregon in Case No. 04-CV-0029, Judge Michael
W. Mosman.
               ____________________________

               Decided: January 16, 2013
             ____________________________

    JOHN M. SKENYON, Fish & Richardson, P.C., of Bos-
ton, Massachusetts, argued for plaintiffs-appellants.
With him on the brief was MARK J. HERBERT.

    CHARLES W. SABER, Dickstein Shapiro, LLP, of Wash-
ington, DC, argued for defendant-appellee. With him on
the brief were SALVATORE P. TAMBURO, MEGAN S.
WOODWORTH and S. GREGORY HERRMAN.
              __________________________
SMITH & NEPHEW   v. ARTHREX                               2


Before LOURIE, CLEVENGER , and WALLACH, Circuit Judg-
                        es.
   Opinion for the court filed by Circuit Judge LOURIE.
  Dissenting opinion filed by Circuit Judge CLEVENGER.
LOURIE, Circuit Judge.
    Smith & Nephew, Inc. (“Smith”) appeals from the fi-
nal judgment of the United States District Court for the
District of Oregon which granted judgment as a matter of
law that Arthrex, Inc. (“Arthrex”) does not infringe claim
1 of U.S. Patent 5,601,557 (the “’557 patent”). Smith &
Nephew, Inc. et al. v. Arthrex, Inc., No. 3:04-cv-00029-MO
(D. Minn. Dec. 16, 2011) (Dkt. No. 1034). Because the
court erred in granting judgment of noninfringement as a
matter of law, we reverse and remand.
                       BACKGROUND
    Smith is a licensee of the ’557 patent, owned by Dr.
John O. Hayhurst. The patent is directed to a method
and apparatus of anchoring cartilage within a joint. The
patent discloses drilling a hole through the hard outer
shell of bone into the less dense cancellous bone followed
by a surgeon inserting a small, but resilient device (an
“anchor”) by pressing it into the smaller drilled hole. The
anchor compresses as it passes through that hole, but
once in the softer cancellous bone, the resilience causes it
to expand again, causing it to stay in place. Claim 1
reads:
   1. A method for anchoring in bone a member and
      attached suture, comprising the steps of:
   forming a hole in the bone;
   attaching a suture to a member;
   lodging the member within the hole by pressing
      the member with attached suture into the hole;
      and
3                                SMITH & NEPHEW   v. ARTHREX


    attaching tissue to the suture so that the tissue is
       secured against the bone.
’557 patent col. 11, ll. 2–10. At issue in this appeal is the
meaning of the term “lodging.”
    In 2004, Smith filed a complaint against Arthrex for
patent infringement, accusing four Arthrex anchors of
infringement. The jury was unable to reach a verdict
after the first trial, but the second trial returned an
infringement verdict favorable to Smith. On appeal, we
reversed and remanded for a new trial, reversing the trial
court’s claim construction of “resile” in claim 2 and hold-
ing that resilience alone had to be sufficient to cause
lodging of the anchor in the bone:
    [I]ntrinsic resiliency is the only disclosed means
    for lodging the anchor, and it therefore must be
    sufficient to lodge the anchor. Thus, “resile” must
    be construed to mean “to return to or tend to re-
    turn to a prior or original position in a manner
    sufficient to cause the lodging of the member in
    the hole.”
Smith & Nephew, Inc. v. Arthrex, Inc., 355 F. App’x 384,
386–87 (Fed. Cir. 2009). We noted that such construction
relied in part on a previous construction of “lodging”
where we stated that a surgeon’s tug on the anchor after
insertion “is not a required step in lodging the anchor, the
anchor must lodge by some other mechanism.” Id. (citing
Smith & Nephew, Inc. v. Ethicon, 276 F.3d 1304 (Fed. Cir.
2001).
    On remand, the parties disputed the meaning of the
term “lodging.” During the third trial, after the close of
evidence for Smith, the district court adopted a construc-
tion of “lodging” that would add a requirement to the
claim that to be lodged the anchor had to “withstand all
the forces of surgery.” Faced with the dilemma of either a
new trial or continuing the trial with a supposedly erro-
SMITH & NEPHEW   v. ARTHREX                              4


neous construction, the court decided to proceed with the
trial because it believed that Arthrex would win under
either construction. During that trial, expert testimony
was presented to the effect that the maximum force on the
anchor during surgery was 12.6 to 12.7 lbs, while the
average was about 6 to 7 lbs.
    The jury returned a verdict for Smith of underlying
direct infringement by the surgeons who use the Arthrex
anchors as well as induced and contributory infringement
by Arthrex along with damages totaling roughly $85
million. Arthrex moved for judgment of noninfringement
as a matter of law. In its motion, Arthrex argued that
under the correct construction of “lodging,” which re-
quired the anchor to “withstand all the forces of surgery,”
no reasonable jury could find direct infringement because
the accused anchors could not withstand the maximum
12.6 to 12.7 lbs of force during surgery. Arthrex also
moved for judgment of no indirect infringement as a
matter of law based on the testimony of its witnesses at
trial.
    Without an opinion, the district court granted both of
Arthrex’s motions for judgment of no direct infringement
as a matter of law and of no indirect infringement. Smith
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1295(a)(1).
                       DISCUSSION
                              I.
    We review the grant or denial of a motion for judg-
ment as a matter of law under the law of the regional
circuit. Summit Tech., Inc. v. Nidek Co., 363 F.3d 1219,
1223 (Fed. Cir. 2004). The Ninth Circuit reviews a district
court's denial of a motion for judgment as a matter of law
de novo. In re First Alliance Mortg. Co., 471 F.3d 977, 991
(9th Cir. 2006). “Judgment as a matter of law should be
granted only if the verdict is against the great weight of
5                                SMITH & NEPHEW   v. ARTHREX


the evidence, or it is quite clear that the jury has reached
a seriously erroneous result.” Hangarter v. Provident Life
& Acc. Ins. Co., 373 F.3d 998, 1005 (9th Cir. 2004) (inter-
nal quotations omitted). The jury's determination of
infringement is a question of fact, which we review for
substantial evidence. Lucent Techs., Inc. v. Gateway, Inc.,
580 F.3d 1301, 1309–10 (Fed. Cir. 2009). We address
claim construction as a matter of law, which we review
without formal deference on appeal, although we give
respect to the conclusions and reasoning of the district
court. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448,
1456 (Fed. Cir. 1998) (en banc).
                            A.
    Smith argues that the court’s grant of judgment as a
matter of law of no direct infringement was based on an
erroneous construction of “lodging” and should thus be
vacated and the jury verdict reinstated. Smith contends
that the law of the case and the mandate rule precluded
the court from revising this court’s prior constructions of
“resiles” and “lodging.” In addition, Smith argues that the
post-trial construction of “lodging” requiring the anchor to
“withstand[] all the forces of surgery” was contrary to the
intrinsic record.
    At the outset, the “law of the case” doctrine does not
apply to the construction of “lodging.” That doctrine is
not applicable when an issue was neither presented nor
decided in a former proceeding in the case. See Liquid
Dynamics Corp. v. Vaughan Co., 449 F.3d 1209, 1220
(Fed. Cir. 2006). Similarly, the mandate does not encom-
pass an issue that was not presented to the court. Exxon
Chem. Patents, Inc. v. The Lubrizol Corp., 137 F.3d 1475,
1484 (Fed. Cir. 1998). We did not construe “lodging”
during the prior 2009 appeal. The issue was therefore not
presented or decided, and the mandate rule and the law of
the case doctrine are inapplicable.
SMITH & NEPHEW   v. ARTHREX                               6


    Turning to the merits, we see no support in the in-
trinsic record to require the “lodging” to “withstand[] all
the forces of surgery.” Claim 1 of the ’557 patent is di-
rected only to anchoring a suture in the bone, not to the
full surgical operation. ’557 patent col. 11 ll. 2–9. The
“lodging” step occurs just after “forming” the hole and
“attaching” a suture, but prior to “attaching tissue.” Id.
None of the other steps of the actual surgery that occur
after that attachment of tissue to the anchor are claimed.
   Consistent with that understanding, the specification
makes clear that it is only after tensioning, i.e. the sur-
geon’s tug, that the anchor becomes irremovable for the
purposes of completing the surgery:
   Whenever tension is applied to the suture, the
   ends of the legs dig into the bone and resist re-
   moval of the anchor member from the hole.
    ...
   [T]ension in the suture (in conjunction with the
   intrinsic resilient force of the anchor member 80
   that forces the leg edges 87 apart) tends to lodge
   the edges 87 of the anchor member legs beneath
   the cortical layer 97, rendering the anchor mem-
   ber substantially irremovable from the hole 100.
’557 patent col. 3 ll. 4–6, col. 9 ll. 50–60. However, as we
previously noted in Ethicon, that tensioning, also known
as the surgeon’s tug, is not a part of the lodging limita-
tion. See Ethicon, 276 F.3d at 1310. We agreed with the
magistrate judge in that case that “lodging . . . does not
bar the surgeon’s tug and any ensuing small movement of
the anchor after insertion.” Id. at 1308. Indeed, we held
that “claim 1 neither excludes nor requires the step of
pulling on the suture after it is inserted.” Id. at 1310. In
other words, the surgeon’s tug, while possibly necessary to
complete the surgery, is not part of what is claimed.
7                               SMITH & NEPHEW   v. ARTHREX


    Indeed, the term “lodging” was only added to the
claim language to overcome an anticipation rejection
based on U.S. Patent 4,409,974 (“Freedland”). Freedland
discloses connecting two sets of bone by using an anchor-
ing device inserted into a hole drilled through the bone.
That device was initially smaller than the diameter of the
drilled hole, and it was not until the surgeon used pliers
to deploy the arms of the device so that the anchor could
remain in place. In overcoming that rejection, Hayhurst
added “lodging” to the claims, stating:
    This method [of lodging the member within the
    hole] is not found in the umbrella-like operation of
    the Freedland device. In order for the Freedland
    device to become lodged within a hole in a bone . .
    . it is necessary to apply opposing forces to the
    head 12 in order to swing the hinged arms 20 out
    of their collapsed position and into an extended
    position.
J.A. 607–08. Notably, there is no mention that the
claimed anchor must withstand all the forces of surgery.
Instead, that statement appears to deal only with how the
claimed anchor stays in place after being initially pressed
into the hole in the bone.
    Nothing in the claim language, the prosecution histo-
ry, or our precedent suggests that lodging must be suffi-
cient to withstand all the forces of surgery. Instead,
lodging, as claimed, only relates to how the anchor stays
in place after being initially pressed into the bone. Thus
the court erred in construing the claims to require lodging
to be sufficient to withstand all the forces of surgery.
    Smith also argues that under either construction the
resilience testing evidence offered at trial sufficiently
shows the anchors to be lodged. We agree. In the prior
appeal, we rejected Arthrex’s argument that, given the
SMITH & NEPHEW   v. ARTHREX                               8


correct construction of “resile,” the district court should
enter judgment of noninfringement:
   Arthrex argues that in light of the claim construc-
   tion we have adopted, the district court should be
   instructed to enter judgment of noninfringement
   in Arthrex’s favor. We disagree. Reasonable jurors
   could find infringement even under the revised
   claim construction. For example, the push-out
   tests submitted by [Smith] suggested that resili-
   ence itself creates 7.5 pounds of resistive force in
   the accused anchors. A reasonable juror could find
   that amount of resistive force to be sufficient to
   lodge the anchor in the bone.
Arthrex, 355 F. App’x at 387. That is exactly what hap-
pened during the third trial. Smith submitted test results
concerning the resistive force due to resilience in the
accused anchors. The jury, having been instructed on the
proper construction of lodging and resiles, found that that
amount of resistive force was sufficient to lodge the an-
chor in the bone. Substantial evidence supports that
determination; we therefore see no reason to disturb that
finding by the jury. Thus, the district court erred in
granting judgment of no direct infringement of claim 1 as
a matter of law.
                              B.
     Smith also argues that the court erred in granting
judgment as a matter of law that Arthrex does not induce
infringement of or contributorily infringe the patent.
Smith challenges the instruction given by the district
court on induced infringement, contending that the dis-
trict court erroneously incorporated the Global-Tech
“willful blindness” standard onto the “knowledge of in-
fringement” test. See Global–Tech Appliances, Inc. v.
SEB S.A., ___ U.S. ____, 131 S.Ct. 2060, 2068, 179
L.Ed.2d 1167 (2011). Smith argues that the court instead
9                              SMITH & NEPHEW   v. ARTHREX


should have applied the “known or should have known of
the infringement” standard outlined in DSU Medical
Corp. v. JMS Co., 471 F.3d 1293, 1304 (Fed. Cir. 2006) (en
banc). On the merits, Smith argues that, under either
standard, the court’s granting of judgment as a matter of
law that Arthrex does not induce infringement or contrib-
utorily infringe was in error as substantial evidence
supported the jury verdict.
     Liability for inducement of infringement under
§ 271(b) “requires knowledge that the induced acts consti-
tute patent infringement.” Global–Tech, 131 S.Ct. at
2068. Our earlier precedent in DSU Medical articulated
the inducement standard somewhat differently from
Global-Tech, requiring that the alleged infringer’s actions
“knew or should have known his actions would induce
actual infringement,” which includes knowledge of the
patent.     DSU Med. Corp., 471 F.3d at 1304, 1306
(“[I]nducement requires that the alleged infringer know-
ingly induced infringement and possessed specific intent
to encourage another’s infringement.”). In Global-Tech,
our court had used “deliberate indifference” as an alterna-
tive to actual knowledge, but the Supreme Court consid-
ered that “willful blindness” was a better surrogate for
actual knowledge than this court’s deliberate indifference
test. Global-Tech, 131 S.Ct. at 2068. In any event, the
district court, in an abundance of caution, instructed the
jury on both formulations and specifically submitted two
separate questions for the jury on inducement. The jury
found for Smith under both standards. Thus, any error in
the instruction or the questions submitted to the jury
regarding induced infringement was harmless.
    We agree with Smith, however, that the court erred in
finding that no rational jury could find induced or con-
tributory infringement. The court again granted judg-
ment as a matter of law without an opinion, only stating
in a telephone conference that “no rational jury could find
SMITH & NEPHEW   v. ARTHREX                              10


indirect infringement for the reasons stated by Arthrex.”
J.A. 124. Arthrex, in its post-trial briefing, had argued
that it lacked the requisite knowledge of infringement
based on the testimony offered by its employees at trial
describing the differences between the accused products
and the patent. The jury rejected that testimony.
    Instead, as the jury heard, Arthrex indisputably knew
of the ’557 patent prior to any infringement. The jury
heard evidence that the president and owner of Arthrex
as well the chief engineer and group director for one of the
accused products, the Bio-SutureTak anchors, knew of the
’557 patent. J.A. 31900–03. The jury was also presented
with evidence that, after personally learning of the ’557
patent, the group director drafted instructions for use of
the accused Bio-SutureTak anchor that paralleled the
patented method steps of the ’557 patent. J.A. 32012–17.
Finally, the jury heard that Arthrex made no attempt to
compare its anchors to the claims of the ’557 patent.
After weighing that evidence against Arthrex employees’
testimony, the jury resolved the factual issue of
knowledge against Arthrex, concluding that Arthrex had
the necessary knowledge for both induced and contributo-
ry infringement. We see no reason to disturb that finding
by the jury. Thus the district court erred in granting
judgment as a matter of law that Arthrex does not induce
infringement of the ’557 patent.
                       CONCLUSION
    We have considered the parties’ remaining arguments
and conclude that they are without merit. Because the
district court erred in granting judgment of no direct
infringement and in granting judgment that Arthrex did
not indirectly infringe claim 1 of the ’557 patent as a
matter of law, we reverse the grants of judgment of non-
infringement and remand to the court for further proceed-
ings not inconsistent with this opinion. For the foregoing
11                             SMITH & NEPHEW   v. ARTHREX


reasons, the jury verdict is reinstated and the judgment of
the district court is
           REVERSED AND REMANDED.
        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

             SMITH & NEPHEW, INC. AND
              JOHN O. HAYHURST, M.D.,
                 Plaintiffs-Appellants,
                            v.
                   ARTHREX, INC.,
                   Defendant-Appellee.
               __________________________

                       2012-1265
               __________________________

    Appeal from the United States District Court for the
District of Oregon in case no. 04-CV-0029, Judge Michael
W. Mosman.
               __________________________

CLEVENGER, Circuit Judge, dissenting.
    I respectfully dissent from the majority’s reversal of
judgment as a matter of law on the issue of indirect
infringement. Because the jury’s verdict on indirect
infringement is not supported by substantial evidence, we
should affirm.
    As the majority acknowledges, the Supreme Court has
made clear that to be guilty of indirect infringement, the
accused infringer must either actually know of, or be
willfully blind to, both the existence of the patent and the
SMITH & NEPHEW   v. ARTHREX                               2


fact of infringement. Global-Tech Appliances, Inc. v. SEB
S.A., 131 S. Ct. 2060, 2068 (2011) (“we now hold that
induced infringement under § 271(b) requires knowledge
that the induced acts constitute patent infringement.”);
see also In re Bill of Lading Transmission & Processing
Sys. Patent Litig., 681 F.3d 1323, 1339 (Fed. Cir. 2012)
(“[t]o survive Appellees’ motion to dismiss, therefore, [the
patentee’s] amended complaints must contain facts plau-
sibly showing that Appellees specifically intended their
customers to infringe the . . . patent and knew that the
customer’s acts constituted infringement.”). This is true
for both induced and contributory infringement. See
Global-Tech, 131 S.Ct. at 2067 (“[A] violator of § 271(c)
‘must know that the combination for which his component
was especially designed was both patented and infring-
ing.’ ” (quoting Aro Mfg. Co. v. Convertible Top Replace-
ment Co., 377 U.S. 476, 488 (1964))).
    Here, it is undisputed that Arthrex knew of the exist-
ence of the ’557 patent. The parties dispute whether or
not Arthrex was willfully blind to the fact of infringement.
    Willful blindness is a high standard; it requires both
“(1) the defendant must subjectively believe that there is
a high probability that a fact exists and (2) the defendant
must take deliberate actions to avoid learning of that
fact.” Global-Tech, 131 S. Ct. at 2070.
     In this case, Smith & Nephew did not present sub-
stantial evidence that Arthrex subjectively believed that
they infringed. Smith & Nephew introduced circumstan-
tial evidence to the effect that Arthrex was lagging in the
suture anchor market. Smith & Nephew also showed that
Arthrex learned of the patent before launching SutureTak
on the market. Smith & Nephew used this evidence to
imply that Arthrex copied their resilient suture anchor.
3                              SMITH & NEPHEW   v. ARTHREX


    Arthrex rebutted this evidence with testimony show-
ing that their product designers subjectively believed they
did not infringe, and in fact understood that the accused
products worked in an entirely different manner. To rebut
any inference of copying, Arthrex showed that they did
not change the design of the SutureTak products after
learning of the ’557 Patent. The only reasonable conclu-
sion a jury could reach based on this evidence is that
Arthrex did not subjectively believe they infringed the
patent, and therefore Smith & Nephew failed to show
willful blindness under the Global-Tech standard as a
matter of law.
    Because Smith & Nephew’s damages award was
based solely on indirect infringement, we should affirm
the court below on the issue of indirect infringement. I
would not reach the issue of claim construction.
