ITC Round-Up: Q1 2026

The first quarter of 2026 saw several meaningful Section 337 decisions from the U.S. International Trade Commission (“Commission”). These decisions addressed the domestic industry requirement, the impact of redesigned products on infringement (including the doctrine of equivalents), and the rigorous standard for post-decision petitions.  

337-TA-1325 – Certain Soft Projectile Launching Devices, Components Thereof, Ammunition, and Products Containing Same (Commission Opinion issued Jan. 5, 2026)

The Commission, on review, found no violation of Section 337 — reversing the Administrative Law Judge’s (ALJ’s) initial determination of a violation. Op. at 2. The ALJ had originally determined that the importation of the respondents’ gel blaster products infringed the patents-in-suit and satisfied the domestic industry requirement, but the Commission concluded that the complainants had failed to prove that a domestic industry existed under Section 337(a)(3)’s economic prong. Op. at 51-52. In particular, the Commission concluded that the complainants failed to show significant investments or employment in the U.S. because the “investments in employing workers at [the complainant’s] headquarters to design, develop, engineer, and prepare to launch its new line of toys” were not “significant” in context. Op. at 26-41. The Commission emphasized that a “holistic review of all relevant considerations” is required when assessing the significance of domestic expenditures, and it reaffirmed that while some qualitative factors can provide context, a quantitative analysis is necessary to establish significance. Op. at 28. The Commission characterized the complainants’ U.S. product design and development activities as insufficient in quantitative terms — particularly relative to the overall product marketplace and foreign expenditures — so the domestic industry requirement was not met. Op. at 32-38.

Chair Karpel dissented as to the domestic industry issue, warning that the majority’s narrow view of what constitutes “significant” U.S. investment could make it unduly difficult for companies that manufacture products abroad to qualify for Section 337 relief. Op. at 69 (Karpel, dissenting). In her separate views, she argued that the majority’s insistence on unfavorable comparisons with foreign investments risked holding “Section 337 protection out of reach for a whole category of potential complainants” that perform substantial development in the U.S. but manufacture their products overseas. Id. at 72.

337-TA-1392 – Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same (Commission Opinion issued Feb. 3, 2026)

The Commission found a violation of Section 337, reversing the ALJ’s initial determination of no violation. Op. at 2-3. The ALJ had concluded that the complainant’s products did not satisfy the domestic industry’s economic prong and that certain redesigns of the respondents’ accused oil vaporizer cartridges did not infringe a key patent. Id. at 4. On review, the Commission disagreed and determined that the respondents’ products infringe four complainant patents, including U.S. Patent No. 11,759,580 (“the ’580 patent”), and that the complainant satisfied the domestic industry requirement. Id. at 2. In doing so, it vacated the ALJ’s bright-line rule excluding pre-patent-issuance domestic investments (which the ALJ had not credited) and remanded for further proceedings, directing the ALJ to consider whether the complainant’s pre-issuance domestic activities (e.g., product development costs incurred before the patent was granted) should count toward establishing a domestic industry. Id. at 6. Ultimately, the Commission affirmed the complainant’s domestic industry showing with modifications (including crediting the complainant’s pre-issuance investments as relevant since they were directed to the patented products). Id.

A central infringement dispute involved redesigned vaporizer cartridges employing a modified “extension feature.” The Commission affirmed that the respondents’ redesigned cartridges infringe under the doctrine of equivalents, agreeing with the ALJ (with additional reasoning) that substituting a triangular extension for the claimed “cylindrical” extension did not avoid infringement. The record showed that the triangular extension in the redesign performs the same function, in the same way, with the same result as the cylindrical extension in achieving an air path for vapor flow; accordingly, the triangular shape was deemed an insubstantial difference (i.e., an equivalent) to the claimed cylindrical shape. Id. at 19-23. The Commission emphasized that minor or cosmetic design changes will not excuse infringement if they do not materially alter the device’s function and result and thus do not introduce a substantial difference. In this case, the new triangle-shaped component was functionally equivalent to the original cylindrical feature.

337-TA-1400 – Certain Cameras, Camera Systems, and Accessories Used Therewith (Commission Opinion issued Mar. 12, 2026)

In an investigation involving multiple digital camera patents asserted by Complainant GoPro, the Commission found a mixed outcome: a violation of Section 337 with respect to an asserted design patent (U.S. Design Patent No. D789,435) but no violation with respect to two asserted utility patents (U.S. Patent Nos. 10,958,840 and 10,529,052). Op. at 2-3. The Commission reversed the ALJ’s finding of infringement for the ’840 patent based on literal non-infringement. Op. at 11. The ’840 patent’s claims required a “low-light high-pass parameter” in a video stabilization algorithm. Id. Although the ALJ had found the limitation satisfied because the accused cameras contained inactive source code for a low-light high-pass filter, the Commission disagreed; the accused cameras were not actually configured to use that feature in normal operation without code modification (the relevant source code was disabled). Id. at 13-14. The Commission explained that even when claims are drafted to recite a device “configured to” perform certain functions, infringement requires some showing that the accused device, as sold and used out-of-the-box, can and does perform the claimed function; a mere dormant capability is not enough if additional modifications are required to activate it. Id. at 14-15. Given that GoPro’s own evidence confirmed the filter code was disabled and could not be enabled by a normal user, the Commission reversed the ALJ and held no infringement of the ’840 patent. Id.  

The Commission similarly reversed the ALJ’s infringement finding for the ’052 patent (directed to image processing in wide-angle vs. fish-eye lenses) because the accused wide-angle lens products did not literally satisfy the claim limitation requiring “output images [that] include the sub-frames remapped from the input lens distortion”. Id. at -18-19. The Commission found that the redesigned wide-angle outputs were cropped and did not actually contain (embed) the entire “remapped” image as required by the patent, so no infringement was established (the ’052 claims were also held invalid as obvious in view of the prior art, independently precluding any violation). Id. at 24.

Since only the design patent was infringed and otherwise valid, the Commission issued a limited exclusion order against the infringing camera products and a cease-and-desist order, finding that the statutory public interest factors did not preclude such relief. Id. at 40-41.  

Practice pointers

These decisions highlight several important lessons for Section 337 practitioners.  

First, robust domestic industry showings require more than a token U.S. presence. The Soft Projectile case demonstrates that even significant U.S. design and development expenditures can fall short if they are not backed by concrete quantitative evidence of substantial investments or employment considered in the context of the relevant industry and marketplace. Practitioners should offer a holistic yet data-driven showing of domestic industry, including comparative metrics that meaningfully contextualize the scale of U.S. operations. Conversely, the Commission’s decision in Oil Vaporizing Devices clarifies that domestic investments made prior to patent issuance can count toward domestic industry, provided that those expenditures are directed to products that practice the patent (and are not artificially limited by their timing). In short, parties must prepare evidence of domestic industry that is both qualitatively and quantitatively compelling, ensuring that U.S. activities are demonstrably significant in relation to the protected articles and marketplace.

Second, product redesigns intended to avoid infringement carry substantial risk and face exacting scrutiny. The Oil Vaporizing Devices case shows that a redesign with only a superficial change in form — like altering a cylindrical part to a triangular shape — may still infringe under the doctrine of equivalents if it performs equivalently. To successfully design around a patent, the modifications must be more than cosmetic; they must produce a real, substantial difference in the way the device works or the results it achieves. In practice, respondents who adopt redesigned products should thus be prepared for deep technical scrutiny and should not assume that a minor tweak can avoid liability.

Third, when dealing with software-based or “capability” claims, as in the Camera Systems case, it is critical that any alleged infringement be evaluated in the context of actual device operation if the claim language so demands. The Commission reaffirmed that an accused device must be configured (without further modification) to perform the claimed function in normal use to infringe a computer-implemented capability claim. Having mere latent code that is disabled by default or requires hacks to enable will not meet such claim limitations unless evidence shows that the feature operates or is accessible to users in the field. In sum, a function that exists “on paper” in source code but is intentionally turned off may not satisfy a “configured to”-style claim element. Complainants in software or electronics cases should therefore develop concrete evidence (e.g. user manuals, device testing, source code analysis) to prove that the accused products actually execute each claimed function under normal conditions.