Digest ouPI Semiconductor Corp. v. Int’l Trade Comm’n, No. 2013-1157 (Fed. Cir. Sept 25, 2014) (precedential). On appeal from the U.S. International Trade Commission (“ITC”). Before Newman, Moore, and Chen.

Procedural Posture: Respondent uPI and complainant trade secret (and patent) holder Richtek filed companion appeals from ITC rulings in an action to enforce a Consent Order. CAFC affirmed the Commission’s ruling that uPI violated the Consent Order as to certain imports, affirmed the modified penalty for that violation, and reversed the ruling of no violation as to the “post-Consent Order” products. CAFC remanded.

  • ITC Consent Order/Trade Secrets: The Administrative Law Judge (ALJ) granted uPI’s opposed motion to terminate the investigation relating to direct current controllers upon entry of a consent order whereby uPI agreed to cease importation of products produced using or containing Richtek’s trade secrets or infringing Richtek’s patents. The ITC declined to review the ALJ’s grant of the motion, terminated the investigation, and entered the consent order.
    • Enforcement Complaint: About one year later, Richtek filed an Enforcement Complaint alleging that uPI violated the Consent Order. The ITC affirmed the ALJ’s finding that the accused products in the prior investigation infringed or were produced using Richtek’s trade secrets, whereas the products developed and produced after entry of the consent order were independently developed, and therefore not produced using Richtek’s trade secrets.
    • uPI’s Appeal: uPI appealed the ruling of liability for third-party imported downstream products that contain formerly accused products and the ruling of patent infringement. CAFC affirmed, finding that substantial evidence supports the ITC’s finding that uPI post-Consent Order upstream sales were linked to subsequent downstream U.S. imports or sales of the formerly accused products.
    • Richtek’s Appeal: Richtek appealed the ruling that the post-Consent Order products do not use or contain Richtek’s trade secrets. CAFC reversed, relying, in part, on 23 lines of identical, duplicative code in a uPI computer file that was covered by Richtek’s trade secrets, and holding that when considering the “record as a whole,” substantial evidence does not support the ITC’s finding that uPI’s post-Consent Order products were independently developed.