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ARTICLE · 15 MAY 2026

Federal Circuit: ITC Experts May Rely On Source Code Not Admitted At Hearing

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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On May 11, 2026, the US Court of Appeals for the Federal Circuit issued a precedential decision in Bissell, Inc. v. International Trade Commission, affirming the ITC’s final determination in Investigation No. 337-TA-1304, preventing respondent Tineco from importing its original wet/dry surface cleaning device but allowing the importation of its redesigned devices. Among other issues, the court held that an ITC expert may rely on source code produced in discovery even if the source code is never introduced as a hearing exhibit.

United StatesIntellectual Property
Robert Vlasis, III
Robert Vlasis, III
Ryan Haddad
Ryan Haddad
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On May 11, 2026, the US Court of Appeals for the Federal Circuit issued a precedential decision in Bissell, Inc. v. International Trade Commission, affirming the ITC’s final determination in Investigation No. 337-TA-1304, preventing respondent Tineco from importing its original wet/dry surface cleaning device but allowing the importation of its redesigned devices. Among other issues, the court held that an ITC expert may rely on source code produced in discovery even if the source code is never introduced as a hearing exhibit.

The decision underscores the latitude ALJs and the Federal Circuit afford expert testimony in software- and firmware-driven investigations, and the litigation risk of failing to meaningfully test an opposing expert’s technical analysis through cross-examination or competing expert evidence.

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