Remains Disabled: How a Firmware Rewrite Defeated Bissell’s ITC Exclusion Order

by Dennis Crouch

When a patent holder wins a Section 337 investigation at the International Trade Commission, the victory comes with a caveat: a limited exclusion order bars the specific infringing products, not whatever the respondent ships next. A sophisticated respondent facing an exclusion order (or anticipating one) will redesign.

Sometimes that redesign is a substantial engineering effort, but in our current world it is most often accomplished through a firmware software update.  The Federal Circuit's decision in Bissell, Inc. v. International Trade Commission, Nos. 2024-1509 & 2024-1709 (Fed. Cir. May 11, 2026), provides an example.

The dispute involves wet/dry floor cleaner that automatically flushes the brushroll when docked. Bissell's patent includes a caveat - that the battery charging circuit "is disabled by the actuation of the self-cleaning mode input control and remains disabled during the unattended automatic cleanout cycle." U.S. Patent No. 11,076,735.  After Bissell filed its Section 337 complaint against Chinese manufacturer Tineco in March 2022, Tineco rewrote the code for its accused Floor One S3 and S5 Pro devices. The redesigned firmware altered the timing of the 120-second cleanout cycle so that the battery charging circuit activates twice during the cycle, briefly at the outset and again toward the middle, rather than staying off throughout.

The timing diagram above shows this visually - adding in those two brief charge cycles. This is a easy technical work-around - the momentary charging is a meaningless addition that avoids literal infringement. This case looks to me to be the exact situation that doctrine of equivalents was designed to address, but the ITC rejected the the equivalents argument.  Ultimately, the ITC found Tineco's original products infringed, entered a limited exclusion order against them. But, it found no infringement as to the redesigned ones.

On appeal, the Federal Circuit affirmed everything.

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