When patent owners prevail in Section 337 investigations before the International Trade Commission, the resulting exclusion orders can be commercially devastating. But sophisticated respondents increasingly prepare redesign strategies while the investigation is still pending, particularly where the accused functionality is controlled through firmware or software logic.
The Federal Circuit’s decision in Bissell, Inc. v. International Trade Commission, Case No. 24-1509 (Fed. Cir. May 11, 2026), illustrates how relatively narrow firmware timing modifications can successfully avoid infringement findings, even after the original products were found infringing and subjected to an exclusion order.
The case also offers several broader lessons for patent litigators and technology companies:
- the distinction between claim construction and factual infringement determinations,
- the continued difficulty of prevailing under the doctrine of equivalents,
- the deferential substantial evidence standard governing ITC appeals, and
- expert reliance on source code under Federal Rule of Evidence 703.
Charles Gideon Korrell notes that the opinion is less significant for its underlying wet/dry vacuum technology than for its broader implications regarding software redesign strategies and appellate framing in patent litigation.
The Patented Technology
The asserted patents, U.S. Patent Nos. 11,076,735 and 11,071,428, involve wet/dry floor cleaning systems with automated self-cleaning functionality.
The patents describe devices that automatically clean the brushroll while docked on a charging station. A key feature of the invention was a safeguard relating to battery charging during the self-cleaning cycle. According to the specification, allowing simultaneous charging and self-cleaning could overload the wall charger’s power capacity.
As a result, the patents required that:
- the “battery charging circuit is disabled by the actuation of the self-cleaning mode input control”; and
- the charging circuit “remains disabled during the unattended automatic cleanout cycle.”
That “remains disabled” language ultimately became the centerpiece of the appeal.
Tineco’s Redesign Strategy
Bissell filed its ITC complaint against Tineco’s original products, including the Floor One S3 and S5 Pro devices. The Commission ultimately found those original products infringed and entered a limited exclusion order.
But during the investigation itself, Tineco implemented redesigned firmware for later product versions. The redesign did not eliminate the self-cleaning cycle altogether. Instead, it altered the timing of battery charging during the 120-second automated cleanout process.
The timing diagrams reproduced in the opinion show that the redesigned products briefly activated charging twice during the cleanout cycle: once near the beginning and once again around the midpoint.
That seemingly minor firmware modification became dispositive.
The Administrative Law Judge concluded that because the battery charging circuit activated during the cycle, it no longer “remained disabled during the unattended automatic cleanout cycle.”
Accordingly, the redesigned products were found noninfringing.
Google v. EcoFactor and the Boundary Between Claim Construction and Fact Finding
The most important precedential discussion in the opinion involves the Federal Circuit’s treatment of Google LLC v. EcoFactor, Inc.
Bissell attempted to characterize the dispute as involving improper claim construction. That strategy was important because claim construction issues receive de novo review on appeal, while factual infringement findings are reviewed only for substantial evidence.
The Federal Circuit rejected Bissell’s characterization and distinguished EcoFactor directly.
In EcoFactor, the Federal Circuit had concluded that the tribunal effectively supplied substantive “scope and boundaries” for claim language where the claim text itself did not provide sufficient guidance. In Bissell, however, the panel concluded that the ALJ merely applied the ordinary meaning of the phrase “remains disabled” to the operational behavior of the redesigned products.
According to the court, no new claim construction occurred.
Instead, the ALJ simply evaluated competing infringement theories, made credibility determinations regarding expert testimony, and concluded that the redesigned products charged during the cleanout cycle.
That distinction was outcome determinative.
Because Bissell framed its appeal almost entirely as a claim construction issue, and did not substantially challenge the evidentiary sufficiency of the Commission’s factual findings, the Federal Circuit had little difficulty affirming.
Charles Gideon Korrell believes this portion of the opinion provides an important warning for appellate practitioners. Parties frequently attempt to recharacterize unfavorable factual findings as legal claim construction disputes in order to obtain de novo review. Bissell demonstrates the risk of relying too heavily on that strategy where the Federal Circuit views the dispute as ordinary application of claim language to technical facts.
Doctrine of Equivalents Also Failed
Bissell alternatively argued infringement under the doctrine of equivalents.
Again, the Federal Circuit affirmed the Commission.
The ALJ had found unpersuasive Bissell’s theory that a charging circuit which intermittently charges during the cleanout cycle was insubstantially different from a claim requiring the charging circuit to remain disabled during that cycle.
The Federal Circuit concluded this was a factual determination regarding equivalence, not a legal application of claim vitiation.
This portion of the opinion is particularly important because it underscores how difficult it can be to establish equivalence where the accused redesign intentionally reverses or negates a claimed operational requirement.
Here, the claim required charging to remain disabled. The redesign intentionally introduced charging activity into the cycle. That made the equivalence argument considerably weaker.
The opinion fits within a broader Federal Circuit trend of limiting doctrine of equivalents theories where the proposed equivalent threatens to erase meaningful claim limitations. Although the panel avoided explicitly invoking “claim vitiation” as a standalone doctrine, the practical effect was similar.
Broader Implications
Bissell v. ITC illustrates several important realities about modern patent enforcement:
First, firmware and software redesigns can be extraordinarily effective in avoiding exclusion orders where claim limitations are tied to operational timing or state transitions.
Second, parties must carefully distinguish between factual disputes and claim construction disputes on appeal. Mischaracterizing the nature of the issue can substantially narrow appellate review.
Third, doctrine of equivalents theories remain difficult where the accused redesign intentionally alters a core claimed behavior.
Finally, evidentiary attacks on expert reliance materials must often be developed aggressively at the trial level. Rule 703 gives experts considerable flexibility to rely on technical materials that are not themselves formally admitted into evidence.
For ITC practitioners especially, the case reinforces the importance of developing redesign analyses early, preserving factual appellate challenges carefully, and treating software timing logic as a potentially decisive infringement issue.
Comments
14 responses to “Bissell v. ITC: Firmware Redesign Defeats ITC Exclusion Order”
The analysis of how Bissell attempted to recharacterize factual findings as claim construction issues is particularly insightful. It is a great reminder for appellate practitioners that the Federal Circuit will not easily be drawn into de novo review where the lower tribunal simply applied claim language to factual evidence.
I agree, and I think that was one of the most important procedural lessons from *Bissell*. As discussed in another comment thread, the court’s treatment of *Google v. EcoFactor* highlights the distinction between true claim construction and the application of claim language to a particular evidentiary record.
What struck me was that Bissell’s appellate strategy largely depended on convincing the Federal Circuit that the ALJ had effectively imposed a new claim construction. The panel instead viewed the dispute as a factual question involving the operation of the redesigned products and the credibility of competing expert opinions. Once the issue was framed that way, the substantial-evidence standard became a significant obstacle.
The decision is a useful reminder that appellate courts are often less interested in how a party labels an issue than in what the tribunal below actually did. If the ALJ simply applies the ordinary meaning of claim language and resolves competing factual evidence, the Federal Circuit is unlikely to convert that analysis into a de novo claim construction dispute.
For practitioners, that reinforces the importance of developing the factual record at the hearing stage and preserving substantial-evidence arguments on appeal, rather than relying exclusively on a claim-construction framework to obtain a more favorable standard of review.
The mCom decision’s narrow reading of ‘exceptional case’ under § 285 is a good reminder that simply losing on the merits, even after an IPR, won’t automatically shift fees. I think this standard matters a lot for companies building AI art tools like Leonardo AI, where patent claims can often feel like fishing expeditions. The fact that the court required specific evidence of litigation misconduct beyond weakness is encouraging for innovative sectors.
I think that’s a fair takeaway. One of the points I found most interesting in *mCom* is that the court continued to emphasize the distinction between a weak case and an exceptional one. As discussed in another comment thread, § 285 requires more than simply showing that the losing party’s arguments ultimately failed. The focus remains on whether the case stands out from the mine-run of patent disputes based on the strength of the position taken, the manner in which the case was litigated, or both.
That principle can be particularly important in emerging technology sectors. Whether the technology involves AI, software, or other rapidly evolving fields, courts generally do not want fee shifting to become an automatic consequence of advancing an unsuccessful legal theory. Otherwise, there is a risk of discouraging parties from bringing or defending good-faith claims in areas where the law and technology are still developing.
At the same time, *mCom* does not eliminate fee exposure. The decision reinforces that prevailing parties seeking fees need evidence directed to the statutory standard itself, such as objectively unreasonable positions, abusive litigation tactics, or other conduct that makes the case truly exceptional. Losing on the merits, even decisively, is often not enough by itself.
That distinction between weak claims and exceptional litigation conduct was one of the central themes of the opinion and, in my view, remains an important safeguard for both innovators and accused infringers.
The point about firmware timing modifications being narrow yet sufficient to avoid infringement is particularly striking. It raises interesting questions about how “substantial” a design change needs to be to withstand Section 337 scrutiny. Do you think this shifts the negotiating leverage during ITC investigations?
That’s a great question. I do think cases like Bissell can affect negotiating leverage, particularly where the accused product is heavily software- or firmware-driven.
As discussed in a few of the other comment threads, the interesting issue is not necessarily how “big” the redesign is from an engineering perspective, but whether it successfully avoids one or more claim limitations. In Bissell, the modification appears relatively narrow, yet it was sufficient because it directly addressed the specific requirement that the charging circuit “remain disabled” during the cleanout cycle.
From a settlement perspective, a credible redesign can reduce some of the pressure that traditionally comes with a Section 337 investigation. If a respondent can demonstrate that it has a viable path to a noninfringing product before a final determination, the threat of an exclusion order may carry less leverage than it otherwise would.
That said, I don’t think Bissell means that minor software changes will always suffice. The redesign still has to survive scrutiny from the ALJ, the Commission, and potentially the Federal Circuit. The key lesson may be that companies should be evaluating redesign options early and in parallel with their litigation strategy, rather than waiting until after an adverse ruling.
The firmware timing analysis in this case is fascinating—shows how subtle technical decisions can fundamentally shift legal outcomes. As someone working in software development, it’s a good reminder that our architectural choices often have downstream implications we don’t immediately consider. Thanks for breaking down the Federal Circuit’s reasoning so clearly; the Bissell opinion is dense but your summary makes the key holdings much more accessible.
Thank you. One of the themes that struck me in *Bissell* is how a seemingly modest engineering decision can become the decisive fact in a patent case. The redesign here did not require a new product platform or significant hardware changes. Instead, the outcome turned largely on when the charging circuit was permitted to operate during a 120-second cleaning cycle.
That ties into a point raised in another comment thread: for many software- and firmware-driven products, the strategic question may be shifting from “Can we design around the patent?” to “How quickly can we identify and implement a credible design-around?” As products become increasingly software-defined, relatively small changes in operational logic can have significant consequences for infringement analysis.
I also agree that there is an important collaboration lesson here. Engineering teams are typically focused on performance, functionality, and user experience, while legal teams are focused on claim limitations and infringement theories. Cases like *Bissell* show the value of bringing those perspectives together early, particularly in fast-moving ITC investigations where timing can be just as important as the redesign itself.
Appreciate the comment. I suspect we’ll continue seeing more cases where firmware and software architecture become central to both litigation strategy and business continuity planning.
The point about §285 exceptionality requirements is well-taken—it’s easy to forget how high the bar actually is for fee awards even after a clear loss. The distinction between case outcomes and counsel conduct under §1927 seems to trip up a lot of practitioners. Thanks for breaking this down.
Thank you. I think that’s exactly what makes the decision interesting. After Octane Fitness, some practitioners understandably assume that a weak case or a decisive loss should naturally lead to a fee award. But § 285 still requires a separate inquiry into whether the case “stands out” from the mine-run of patent disputes.
The opinion is also a useful reminder that § 285 and § 1927 serve different purposes. Section 285 focuses on the exceptional nature of the case as a whole, while § 1927 is directed at litigation conduct that unreasonably and vexatiously multiplies proceedings. A party can lose badly without satisfying either standard, just as problematic litigation conduct can sometimes trigger sanctions even where the underlying claims have merit.
That distinction is easy to blur in practice, but the court’s analysis reinforces that prevailing parties seeking fees still need to develop a record directed to the specific requirements of the statute they invoke.
Interesting analysis on the timing aspect. The Federal Circuit’s recognition that narrow firmware modifications can avoid infringement is a practical reminder for product teams to build redesign flexibility into their development cycles early on. This could change how legal and engineering collaborate during Section 337 investigations.
I agree. One of the broader takeaways from *Bissell* is that redesign planning can no longer be viewed solely as an engineering exercise that begins after an adverse ruling. In software- and firmware-driven products, redesign strategy may need to be developed alongside the litigation strategy from the outset.
The case also highlights the value of close collaboration between legal and engineering teams. Understanding precisely which claim limitations present the greatest infringement risk can help engineers focus on targeted modifications that preserve product functionality while avoiding the asserted claims.
For companies facing Section 337 investigations, the ability to identify and implement a credible redesign early may significantly affect both litigation leverage and business continuity. As products become increasingly software-defined, I suspect we’ll continue to see more disputes where relatively narrow changes in operational logic have outsized consequences for infringement analysis.
The point about firmware timing modifications creating a clean redesign path is interesting — it shifts the strategic question from “can we design around” to “how fast can we iterate.” I imagine this creates particular pressure on software-defined products where the same hardware can embody different infringing logic depending on firmware version. Not directly applicable to our AI application layer, but the timing dynamics in Section 337 proceedings would be worth mapping out more thoroughly if anyone has tracked similar acceleration patterns across recent CAFC cases.
That’s a good observation. One of the interesting aspects of *Bissell* is that the redesign did not appear to require any meaningful hardware changes. The dispute ultimately turned on software-controlled timing of battery charging during the self-cleaning cycle.
I think you’re right that this changes the strategic conversation. In many modern products, particularly those with significant firmware or software control layers, the question may be less whether a design-around is technically possible and more whether it can be developed, validated, and introduced before the ITC reaches a final determination.
The opinion also highlights the value of pursuing redesign efforts in parallel with litigation. Tineco’s redesigned products were evaluated during the investigation itself, which likely avoided the need for later enforcement or advisory proceedings.
It would be interesting to examine whether we’re seeing a broader trend in recent Section 337 cases. As more product functionality migrates from hardware into software and firmware, redesign cycles can compress from months or years to weeks. That potentially changes both settlement leverage and litigation strategy in ways that may not have been possible in earlier generations of hardware-centric investigations.
The AI context may be somewhat different, but many AI-enabled products still rely heavily on software-defined functionality, which raises similar questions about how quickly accused features can be modified once a particular claim construction or infringement theory becomes apparent.