  United States Court of Appeals
      for the Federal Circuit
               ______________________

     UPI SEMICONDUCTOR CORPORATION,
                 Appellant,

                         v.

     INTERNATIONAL TRADE COMMISSION,
                 Appellee,

                        AND

       RICHTEK TECHNOLOGY CORP. AND
             RICHTEK USA, INC.,
                   Intervenors.
             ______________________

                     2013-1157
               ______________________

   Appeal from the United States International Trade
Commission in Investigation No. 337-TA-698.

             ----------------------

     RICHTEK TECHNOLOGY CORP. AND
            RICHTEK USA, INC.,
                Appellants,

                         v.

     INTERNATIONAL TRADE COMMISSION,
                 Appellee,
2                        RICHTEK TECHNOLOGY CORP.   v. ITC



                         AND

     UPI SEMICONDUCTOR CORPORATION,
                   Intervenor.
             ______________________

                      2013-1159
                ______________________

   Appeal from the United States International Trade
Commission in Investigation No. 337-TA-698.
                ______________________

             Decided: September 25, 2014
               ______________________

    STEVEN M. LEVITAN, Hogan Lovells US LLP, of Palo
Alto, California, argued for uPI Semiconductor Corpora-
tion. With him on the brief were JENNIFER M. LANTZ,
CLARK S. STONE, and EDWARD C. KWOK. Of counsel were
CATHERINE E. STETSON and SEAN MAROTTA, of Washing-
ton, DC.

    CLARK S. CHENEY, Attorney, Office of General Coun-
sel, United States International Trade Commission, of
Washington, DC, argued for appellee. With him on the
brief were PAUL R. BARDOS, Acting General Counsel,
WAYNE E. HERRINGTON, Assistant General Counsel, and
CLINT A. GERDINE, Attorney.

    WILLIAM M. ATKINSON and M. SCOTT STEVENS, Alston
& Bird, LLP, of Charlotte, North Carolina, argued for
Richtek Technology Corp., et al. With them on the brief
were THOMAS W. DAVISON and BENN C. WILSON, of Wash-
ington, DC; YITAI HU and ELIZABETH H. RADER, of Menlo
Park, California. Of counsel was KIRK T. BRADLEY.
                 ______________________
RICHTEK TECHNOLOGY CORP.   v. ITC                        3



   Before NEWMAN, MOORE, and CHEN, Circuit Judges.
NEWMAN, Circuit Judge.
    Before the court are the appeal of respondent-
intervenor uPI Semiconductor Corp. (“uPI”) and the
companion appeal of complainant-intervenors Richtek
Technology Corp. and Richtek USA, Inc. (together “Rich-
tek”) from rulings of the International Trade Commission
in an action to enforce a Consent Order, Certain DC-DC
Controllers and Products Containing Same, Inv. No. 337-
TA-698 (75 Fed. Reg. 446). We affirm the Commission’s
ruling that uPI violated the Consent Order as to the
imports known as “formerly accused products,” and affirm
the modified penalty for that violation. We reverse the
ruling of no violation as to the “post-Consent Order”
products. The case is remanded for further proceedings in
accordance with our rulings herein.
                      BACKGROUND
    uPI and Richtek are technology companies in the
business of designing and selling DC-DC controllers. DC-
DC controllers convert direct current from one voltage to
another, and are embodied in chips for use in “down-
stream” electronic devices such as computer mother-
boards. Founded in 1998, Richtek Technology Corp. has
its principal place of business in Taiwan. Richtek USA
has its principal place of business in California. uPI was
founded in 2005 by former Richtek employees and has its
principal place of business in Taiwan. uPI chips are
imported into the United States either directly or as
incorporated in various downstream devices.
    Richtek in 2010 filed a complaint with the Interna-
tional Trade Commission, alleging that uPI misappropri-
ated Richtek’s trade secrets and infringed Richtek’s
United States patents, and that uPI’s importation, sale
for importation, or sale after importation of DC-DC con-
trollers and products containing these controllers violated
4                           RICHTEK TECHNOLOGY CORP.    v. ITC



19 U.S.C. §1337 (Section 337) of the Tariff Act. Three
Richtek patents are at issue in this appeal: U.S. Patent
No. 7,315,190 (“the ’190 patent”), No. 6,414,470 (“the ’470
patent”), and No. 7,132,717 (“the ’717 patent”).
    Shortly before the evidentiary hearing scheduled by
the Commission’s Administrative Law Judge (“ALJ”), uPI
moved to terminate the investigation, pursuant to
19 C.F.R. §210.21, by unilaterally offering to enter into a
consent order whereby uPI would cease importation of all
products produced using or containing Richtek’s trade
secrets or infringing Richtek’s patents. Over Richtek’s
objection, the ALJ agreed to enter the consent order
substantially as drafted and proposed by uPI. The Com-
mission declined to review the ALJ’s grant of uPI’s mo-
tion, and, on August 13, 2010, the Commission
terminated the investigation and entered the Consent
Order.
    The Consent Order includes the following provisions:
    A. Effective immediately upon the entry of this
    Consent Order, uPI will not import into the Unit-
    ed States, sell for importation into the United
    States, or sell or offer for sale in the United States
    after importation, or knowingly aid, abet, encour-
    age, participate in, or induce importation into the
    United States, the sale for importation into the
    United States, or the sale, offer for sale, or use in
    the United States after importation, without the
    consent or agreement of Richtek, any DC-DC con-
    trollers or products containing same which in-
    fringe claims 1-11, 26, or 27 of U.S. Patent No.
    7,315,190, claims 29 or 34 of U.S. Patent No.
    6,414,470, or claims 1-3 or 6-9 of U.S. Patent No.
    7,132,717, or which are produced using or which
    contain Richtek’s asserted trade secrets.
        ***
RICHTEK TECHNOLOGY CORP.   v. ITC                        5



   D. UPI will not challenge the validity of Richtek’s
   intellectual property rights in any administrative
   or judicial proceeding to enforce the Consent Or-
   der, but may do so in any other proceeding.
       ***
   F. The requirements of Paragraph A of this Con-
   sent Order shall be of no further force and effect
   with respect to Richtek’s asserted trade secrets
   ten (10) years after issuance of this Order.
    Approximately one year later Richtek filed an En-
forcement Complaint alleging, inter alia, that uPI was in
violation of the Consent Order. The Commission institut-
ed an enforcement proceeding, the ALJ held an eviden-
tiary hearing, and, on June 8, 2012, the ALJ issued an
Enforcement Initial Determination (“EID”). The EID
separated the accused uPI products into two categories:
(1) products that were accused in the prior ITC investiga-
tion of infringing Richtek’s patents or accused of being
produced using or containing Richtek’s trade secrets (the
“formerly accused products”); and (2) products allegedly
developed and produced after entry of the Consent Order
(the “post-Consent Order products”).
    The ALJ found that the formerly accused products
contained or were produced using Richtek’s trade secrets
and that the formerly accused products alone, or incorpo-
rated into downstream products, infringed the ’190, ’470,
and ’717 patents. The ALJ also found that the post-
Consent Order products infringed the ’470 and ’717 pa-
tents. However, the ALJ found that the post-Consent
Order products were independently developed, and there-
fore not produced using Richtek’s trade secrets, due to
“clean room” procedures uPI implemented. The ALJ
stated:
   [T]he evidence shows that uPI took steps to insu-
   late its new product lines from any misconduct
6                          RICHTEK TECHNOLOGY CORP.    v. ITC



    that took place in the past. uPI has satisfied all of
    the elements of the independent development de-
    fense, regardless of any similarities that its post-
    consent order designs may bear to Richtek’s prod-
    ucts.
EID at 104.
    The ALJ assessed a civil penalty against uPI in the
amount of $10,000 for each day on which the violative
formerly accused or post-Consent Order products entered
or were sold into the United States. With respect to the
formerly accused products, only those controllers sold by
uPI to downstream customers after the Consent Order
issued could potentially constitute a violation of the
Consent Order. The ALJ weighed Richtek’s and uPI’s
competing evidence as to the lag time between the sale of
a formerly accused chip to a downstream customer and
the importation of the downstream product containing
that chip. EID at 115-16. Adopting uPI’s estimate of five
months over Richtek’s estimate of three months, the ALJ
excluded from violation any downstream products con-
taining the formerly accused chips imported or sold in the
United States before January 29, 2011. The ALJ found
importation or sales of articles in the United States in
violation of the Consent Order occurred on 75 days, and
levied a total penalty of $750,000. EID at 120-21.
    Both sides petitioned the full Commission for review.
uPI admitted its violative importation of formerly accused
chips for a single day, and argued that the ALJ’s finding
of violation for the remaining 74 days was erroneous
because there was no explicit finding that uPI had know-
ingly aided or abetted its customers’ importations, and
because there was no proof that uPI’s upstream sales of
the formerly accused products were directly linked to
downstream U.S. sales or importations. uPI also chal-
lenged the ALJ’s finding of infringement of the ’470
RICHTEK TECHNOLOGY CORP.   v. ITC                        7



patent. uPI did not challenge the ALJ’s findings respect-
ing the ’190 patent or the ’717 patent.
    Richtek’s petition for review, in turn, challenged the
ALJ’s finding that the post-Consent Order products did
not embody Richtek’s trade secrets. Richtek argued that
the post-Consent Order products are substantially similar
or identical to the formerly accused products and the
asserted trade secrets, and that the post-Consent Order
products continue to be produced using Richtek’s trade
secrets.
    The Commission’s Notice of its decision to review the
EID explained that it would “review the following: the
ALJ’s finding of infringement of the ’470 patent; the ALJ’s
finding of infringement of the ’190 patent; and the ALJ’s
determination that uPI violated the August 13, 2010
consent order on 75 days.” 77 Fed. Reg. 49022-01.
    The full Commission affirmed the ALJ’s findings that
the formerly accused products were produced using or
contained Richtek’s trade secrets and that the post-
Consent Order products were produced without Richtek’s
trade secrets. The Commission also affirmed the ALJ’s
finding that uPI’s formerly accused products violated the
Consent Order with respect to the ’190 patent because
uPI knowingly aided or abetted the sale or importation of
formerly accused products that when incorporated into
downstream products directly infringe the ’190 patent.
The Commission reversed the ALJ’s finding that uPI’s
post-Consent Order and formerly accused products violat-
ed the Consent Order with respect to the ’470 patent. The
Commission vacated as moot the ALJ’s finding of viola-
tion of the Consent Order with respect to the ’717 patent
because the asserted claims thereof were cancelled in a
reexamination proceeding.
   The Commission adopted the ALJ’s decision to apply a
$10,000 penalty for each day of violation of the Consent
Order. Having declined to adopt some of the ALJ’s find-
8                         RICHTEK TECHNOLOGY CORP.   v. ITC



ings as to violations, the Commission accordingly reduced
the number of days of violation from 75 to 62 and sus-
tained a civil penalty in the amount of $620,000.
    The Commission thus sustained the ALJ’s findings of
violations of the Consent Order only with respect to the
formerly accused products, as to which the Commission
found uPI directly imported violative controllers on one
day, and on 61 days knowingly aided or abetted the
United States sale of formerly accused products that,
standing alone or when incorporated into downstream
products, infringed the ’190 patent or contained or were
produced using Richtek’s trade secrets.
    Richtek appeals the Commission’s ruling that the
post-Consent Order products do not use or contain Rich-
tek’s trade secrets, but does not appeal the rulings as to
Consent Order violations concerning the ’190 patent,
the ’470 patent, or the ’717 patent. uPI does not appeal
the ruling that the formerly accused products were pro-
duced using or contain Richtek’s trade secrets, but does
appeal the ruling of liability for imported downstream
products that contain formerly accused products and the
ruling of infringement of the ’190 patent. uPI also ap-
peals from the Commission sustaining eight days of
violations attributable solely to infringement of the ’470
patent, which the Commission found was not infringe-
ment.
                       DISCUSSION
    On appeal of a Commission enforcement determina-
tion, we “review the Commission’s legal determinations
without deference and its factual determinations for
substantial evidence.” Fuji Photo Film Co. v. Int’l Trade
Comm’n, 474 F.3d 1281, 1293 (Fed. Cir. 2007). This court
“must affirm a Commission determination if it is reasona-
ble and supported by the record as a whole, even if some
evidence detracts from the Commission’s conclusion.”
Spansion, Inc. v. Int’l Trade Comm’n, 629 F.3d 1331, 1344
RICHTEK TECHNOLOGY CORP.   v. ITC                         9



(Fed. Cir. 2010) (internal quotation marks and citation
omitted).
    The Commission has authority to terminate a Section
337 investigation by consent order, and to investigate and
impose a penalty for violation of a consent or-
der. 19 U.S.C. §1337(c), (f); see San Huan New Materials
High Tech, Inc. v. Int’l Trade Comm’n, 161 F.3d 1347,
1356-57 (Fed. Cir. 1998) (“A consent order whereby the
Commission terminates its investigation upon agreement
of the respondent to cease its infringing activities invokes
the restraint of federal power, upon the respondent’s
undertaking to comply with the law; thus its violation is
subject to federal remedy, by penalty and enforcement in
accordance with statute and regulation.”).
    Consent orders are construed as contracts. See Unit-
ed States v. ITT Cont’l Baking Co., 420 U.S. 223, 236-37
(1975) (“[S]ince consent decrees and orders have many of
the attributes of ordinary contracts, they should be con-
strued basically as contracts . . . .” (footnote omitted)).
Contract interpretation is a question of law reviewed de
novo. E.g., Rembrandt Data Techs., LP v. AOL, LLC, 641
F.3d 1331, 1336 (Fed. Cir. 2011).
                             I
                       UPI’S APPEAL

                 A. Third Party Imports
    uPI does not now challenge the Commission’s deter-
mination that uPI’s formerly accused DC-DC controllers
were produced using Richtek trade secrets. Nor does uPI
contest the Commission’s finding that downstream prod-
ucts containing the formerly accused products were
imported into the United States after the Consent Order
issued or that uPI made post-Consent Order upstream
sales of formerly accused products. However, uPI objects
to any bar under the Consent Order against importation
10                        RICHTEK TECHNOLOGY CORP.   v. ITC



by uPI’s customers of products containing infringing DC-
DC controllers.
    uPI states that, despite its agreement by Consent Or-
der not to knowingly aid, abet or induce importation of
products produced using or containing Richtek trade
secrets or infringing Richtek patents, this provision
cannot reach third-party importations. uPI states that
Kyocera Wireless Corp. v. International Trade Commis-
sion, 545 F.3d 1340 (Fed. Cir. 2008), prohibits the Com-
mission from excluding imports of non-respondents absent
a general exclusion order. uPI states that because this
case was terminated by Consent Order, with no general
exclusion order, no penalty can be based on importations
by non-respondents, whether or not they were knowingly
aided or abetted by uPI.
    In Kyocera this court stated: “Section 337 permits ex-
clusion of the imports of non-respondents only via a
general exclusion order, and then too, only by satisfying
the heightened requirements of 1337(d)(2)(A) or (B).” 545
F.3d at 1358. uPI states that Kyocera established that a
Consent Order does not apply to third party importations.
uPI states that although it agreed by Consent Order not
to knowingly aid or abet importation of violative products,
the Commission lacks authority to impose a penalty on
uPI based on importations by non-respondents because
that would have the effect of excluding products of non-
respondents in the absence of a general exclusion order, in
contravention of the decision in Kyocera.
    uPI also argues that substantial evidence does not
support violation of the Consent Order’s knowingly aiding
or abetting provision because the Commission had the
burden of proving which downstream products imported
into the United States were derived from uPI’s post-
Consent Order sales of formerly accused DC-DC control-
lers. uPI states that it is possible that all of the United
States imports of downstream products containing for-
RICHTEK TECHNOLOGY CORP.    v. ITC                         11



merly accused DC-DC controllers were derived from uPI
sales of the formerly accused products occurring before
the Consent Order issued, which could not give rise to a
violation.
    Substantial evidence supports the Commission’s find-
ings that uPI post-Consent Order upstream sales were
linked to subsequent downstream United States imports
or sales of the formerly accused products and that uPI
knowingly aided or abetted United States imports or sales
of the formerly accused products. The Commission ac-
cepted uPI’s testimony that it took several months for
post-Consent Order sales of the formerly accused products
to appear in the United States, excluding all imports
within a five-month period from the calculation of days of
violation, and counting all imports thereafter. uPI at-
tempts to impeach the Commission’s finding as to the lag
time between uPI upstream sales and downstream United
States imports by pointing to testimony of uPI expert, Dr.
Stephen Prowse. uPI states that Dr. Prowse testified that
it could take as long as thirteen months from the up-
stream sale of a formerly accused product before that
product entered the United States. However, Dr. Prowse
testified that the average lag time was 150 days, and it
was upon this testimony that the ALJ rejected Richtek’s
estimate of a three-month lag time and accepted uPI’s
assertion of a five-month lag time, thereby excluding from
calculation of days of violation any United States sales or
imports occurring before five months after the Consent
Order issued. EID at 115-16.
     uPI did not argue that a longer lag time should be
adopted, in its briefing before the full Commission for
review of the ALJ’s decision, despite the Commission’s
request for briefing on the factual basis for violation of the
knowingly aiding and abetting provision of the Consent
Order. uPI even referred to the five-month lag time as
“the proper lag time analysis (which the ALJ adopted)” in
its petition for review of the EID.
12                        RICHTEK TECHNOLOGY CORP.   v. ITC



    The Commission relied on spreadsheets produced by
uPI showing uPI’s purchase order data and sales of for-
merly accused products to downstream customers after
the Consent Order issued. A uPI executive testifying
before the Commission acknowledged that the spread-
sheet data showed sales of formerly accused products to
customers after the Consent Order issued. Spreadsheets
produced by uPI downstream customers showed the
customers’ post-Consent Order United States sales of
products containing the formerly accused products, as
well as a tracking report by a uPI distributor showing
that uPI post-Consent Order sales of formerly accused
products were made to uPI contract manufacturers.
    The Commission also relied on testimony by uPI ex-
ecutives that uPI knew the contract manufacturers to
whom uPI’s distributors sold the formerly accused prod-
ucts, and knew that these contract manufacturers import-
ed downstream products into the United States. The
Commission supported its findings in testimony by uPI
executives allegedly intimating uPI’s intent to conduct its
business in a manner that could be inconsistent with the
restrictions imposed by the Consent Order. The Commis-
sion also cited a uPI executive’s testimony that, while uPI
told its customers that uPI would stop distributing the
formerly accused products by the end of 2011, it accepted
orders of formerly accused products as late as February
2012, with the last date for their shipment being May
2012.
    uPI does not contest the evidence upon which the
Commission relied. Rather, uPI argues this evidence does
not link a particular post-Consent Order sale by uPI of a
specific DC-DC controller to a particular downstream U.S.
sale or importation of that same DC-DC controller. uPI
argues that while the spreadsheet data show the post-
Consent Order upstream sales and downstream imports
of DC-DC controllers identified by the same model num-
bers, “[i]t is not enough that the chips are the same model
RICHTEK TECHNOLOGY CORP.   v. ITC                        13



number; they must be shown to be the same chips.” App.
No. 2013-1157, uPI Br. at 48.
    The Commission’s reliance on evidence of uPI up-
stream post-Consent Order sales of the formerly accused
products, evidence of post-Consent Order downstream
United States imports or sales of the same model number
formerly accused products, the lag time between up-
stream sale and United States entry, and testimony by
uPI executives, reasonably supports the Commission’s
finding that uPI violated the knowingly aiding or abetting
provision of the Consent Order. The Commission’s con-
clusion is supported by substantial evidence, that is, “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. of
New York v. NLRB, 305 U.S. 197, 229 (1938). We discern
no error in the Commission’s ruling on this aspect.
    Kyocera does not prohibit the Commission from en-
forcing the Consent Order in accordance with its terms,
although the Commission did not impose an exclusion
order. The Consent Order prohibits uPI from knowingly
aiding or abetting the importation of DC-DC controllers
produced using or containing Richtek trade secrets or
infringing Richtek patents, “or products containing same.”
The Commission had statutory authority to assess a civil
penalty against uPI for its violation of the Consent Or-
der’s knowingly aiding or abetting provision.
                    B. The ’190 Patent
    uPI also challenges the Commission’s finding that
uPI’s formerly accused products directly infringed the ’190
patent, although uPI acknowledges that reversal of the
Commission’s findings as to the ’190 patent “will not
change the total days of violation, or the associated civil
penalties, because the Commission had an alternate basis
on which to find a violation by uPI’s ‘aiding and abetting’
importation of the same downstream third party products
14                         RICHTEK TECHNOLOGY CORP.   v. ITC



containing uP61xx DC-DC-controllers.”      App. No. 2013-
1157, uPI Br. at 59.
     The Commission responds that it did not find that uPI
directly infringed the ’190 patent, but that uPI violated
the Consent Order prohibition on knowingly aiding or
abetting the sale or importation into the United States of
any DC-DC controllers or products containing same that
infringe the ’190 patent. The Commission states that it
affirmed the ALJ’s finding that the ’190 patent was direct-
ly infringed by downstream devices incorporating former-
ly accused products, which constituted a violation under
the knowingly aiding or abetting provision of the Consent
Order.
    uPI does not challenge the Commission’s finding that
downstream products incorporating formerly accused
products practice each element of each asserted claim of
the ’190 patent, but instead argues “[t]he Commission’s
finding of direct infringement by uPI of the ’190 patent (if
that is what it found) was erroneous.” App. No. 2013-
1157, uPI Br. at 59. The record makes clear the Commis-
sion did not find direct infringement of the ’190 patent by
the uPI upstream products. For the reasons discussed in
the preceding section, we affirm the Commission’s finding
that the United States sale or importation of downstream
products, which incorporate uPI’s upstream products and
infringe the ’190 patent, constitutes a violation of the
Consent Order’s knowingly aiding or abetting provision.
                    C. The ’470 Patent
    When the Commission reversed the ALJ’s finding of
infringement of the ’470 patent, after invalidation on
reexamination, the Commission did not reduce the eight
days of penalty attributed to infringement of this patent.
The Commission concedes that this was an error. We
therefore reduce the total penalty by eight days. This
leaves a total penalty of 54 days on uPI’s appeal.
RICHTEK TECHNOLOGY CORP.   v. ITC                       15



                            II
                    RICHTEK’S APPEAL
     Richtek challenges the Commission’s finding that
uPI’s post-Consent Order controllers do not contain or are
not produced using Richtek trade secrets. Richtek states
that uPI’s “clean room” procedures did not avoid all use of
its trade secrets for the post-Consent Order products and
that substantial evidence does not support the Commis-
sion’s finding that the post-Consent Order products were
not produced using and do not contain Richtek trade
secrets.
    Richtek defined its trade secrets as the computer files
used to design circuits and circuit schematics, not as the
circuits themselves. The Consent Order prohibits selling
or importing, and aiding or abetting the sale or importa-
tion, of products that are produced using Richtek trade
secrets, or products containing same. uPI does not chal-
lenge the Commission’s finding that its formerly accused
products were produced using or contain Richtek trade
secrets, but argued to the Commission that its post-
Consent Order products were independently developed
through “clean room” procedures, and did not use the
Richtek trade secrets. The ALJ found that “uPI has
satisfied all of the elements of the independent develop-
ment defense, regardless of any similarities that its post-
consent order designs may bear to Richtek’s products.”
EID at 104.
           A. The Formerly Accused Products
    The Commission affirmed the ALJ’s finding that uPI’s
formerly accused products contained or were produced
using Richtek trade secrets. The ALJ relied on compari-
sons of Richtek’s trade secrets and the uPI schematics,
layouts, and design files used to create the formerly
accused products, and found that the number of similari-
ties established uPI’s use of Richtek trade secrets. The
16                         RICHTEK TECHNOLOGY CORP.   v. ITC



ALJ credited the testimony of Richtek’s expert, who
testified that the extent of duplication could not be ex-
plained by coincidence, or by re-creation through unaided
human memory.
    The ALJ also took note that numerous uPI employees
were former Richtek employees, including uPI’s President
and Vice-Chairman, as well as engineers, project manag-
ers, and its Director of R&D. The ALJ also credited
evidence that a former Richtek employee at uPI sent out
an email requesting that people “steal” Richtek circuit
schematics, imploring the email recipients “Please sup-
port me.” EID at 95.
     Although the ALJ engaged in a comparison of the
Richtek trade secrets and the formerly accused products,
the ALJ stated, and the Commission affirmed, that
“[e]ven without a comparison of uPI and Richtek schemat-
ics, the weight of the evidence suggests that the accused
uPI product families were created with the assistance of
misappropriated Richtek documents and files.” Id. at 96.
     These findings are not here disputed.
           B. The Post-Consent Order Products
    The record as a whole does not support with substan-
tial evidence the Commission’s finding that uPI’s post-
Consent Order products were not produced using Richtek
trade secrets.
    uPI stated that it engaged outside design firms to cre-
ate new layouts and schematics to produce a new line of
DC-DC controller chips, and that it did not provide the
outside design firms with Richtek trade secrets or uPI’s
former schematics or layouts. However, the evidence was
grossly inadequate.
    uPI stated that uPI employee Charles Chang was
tasked with supplying outside design firms with symbol
libraries and project configurations (ECS.ini) files for the
RICHTEK TECHNOLOGY CORP.    v. ITC                          17



creation of DC-DC controllers. The Commission accepted
uPI’s argument that Mr. Chang did not rely on Richtek or
uPI materials, although Mr. Chang did not testify. In-
stead, uPI offered the testimony of its experts, Dr. Min
and Dr. Kelly. Dr. Min testified that in a telephone
conversation Mr. Chang stated that he discovered a copy
of the ECS.ini file in his old graduate school notebook,
and that the file contained the same 23 lines of code in the
ECS.ini files that uPI used for its formerly accused and
post-Consent Order products. Dr. Kelly testified, based
on an interview with Mr. Chang, that Mr. Chang created
the ECS.ini file and symbol libraries by himself. Mr.
Chang’s personal testimony was excluded because uPI did
not disclose his involvement until after discovery had
closed and Richtek did not have an opportunity to depose
him. The Commission accepted the position that Mr.
Chang independently developed the ECS.ini file.
    Richtek’s experts testified to the high degree of simi-
larity and identity between uPI’s post-Consent Order
products and formerly accused products, compared with
Richtek’s trade secrets. Richtek witnesses pointed to the
many unchanged features of the layouts and the circuitry,
including errors therein. Richtek argues that Mr. Chang’s
discovery that he long ago possessed a code identical to
Richtek’s strains credibility.
    The Commission found that “uPI took steps to insu-
late its new product lines from any misconduct that took
place in the past . . . regardless of any similarities that its
post-consent order designs may bear to Richtek’s prod-
ucts.” EID at 104. However, that the post-Consent Order
products could have been independently developed is not
evidence of independent development itself. See Richard-
son v. Suzuki Motor Co., 868 F.2d 1226, 1243 (Fed. Cir.
1989) (“[n]or does the possibility of independent discovery
relieve [defendant] of [trade secret] liability”); Am. Can.
Co. v. Mansukhani, 742 F.2d 314, 334 n.24 (7th Cir. 1984)
(“possibility of reverse engineering or independent devel-
18                         RICHTEK TECHNOLOGY CORP.    v. ITC



opment does not excuse one who obtains trade secrets
wrongfully”).
     The record as a whole does not contain substantial ev-
idence to support a finding of uPI’s independent develop-
ment. It is undisputed that 23 lines of code in the ECS.ini
file, covered by Richtek’s trade secrets, appear verbatim
in the ECS.ini file uPI used for its post-Consent Order
products. The ALJ considered this duplication in finding
uPI’s violative use of Richtek trade secrets for its formerly
accused products, but disregarded the continued duplica-
tion for the post-Consent Order products.
    The Commission found that uPI made “revisions” to
the circuit designs as provided by the outside design
firms. App. No. 2013-1159, ITC Br. at 42. However,
many examples of repetition of extraneous markings,
notations, and purported design errors from Richtek’s
trade secrets are in uPI’s schematics for its post-Consent
Order products. With respect to the extraneous markings
and notations, neither the Commission nor uPI points to
any evidence to rebut Richtek’s assertion that these
markings and errors are evidence of continued use of the
trade secrets.
    With respect to the erroneous notations, the ALJ, as
well as the Commission and uPI, point only to the testi-
mony of uPI’s expert that the reproduction of the purport-
ed design errors indicates common knowledge. EID at
109; App. No. 2013-1159, uPI Br. at 48-49; App. No. 2013-
1159, ITC Br. at 49-50. No documentary evidence sup-
ports the contention that the design errors reflect common
knowledge. The Commission argues that there is no
evidence the purported design errors are incorrect “for
uPI’s plainly different circuit.” App. No. 2013-1159, ITC
Br. at 49-50. However, Richtek appears correct in its
citations showing identity of the Richtek and uPI sche-
matics, as well as reproduction of purported design errors.
The reproduction of design errors, notations and extrane-
RICHTEK TECHNOLOGY CORP.   v. ITC                        19



ous markings is not consistent with independent devel-
opment. See, e.g., In re Certain Cast Steel Ry. Wheels,
Processes for Mfg. or Relating to Same and Certain Prods.
Containing Same, Inv. No. 337-TA-655, USITC Pub. 4265
(Oct. 2011) (an error in complainant’s trade secrets repro-
duced in respondent’s technical documents was “conclu-
sive evidence of [ ] copying and use of [ ] Trade Secrets”).
    On the record provided, substantial evidence does not
support the Commission’s conclusion that uPI’s post-
Consent Order products were independently developed.
The determination that uPI did not violate the Consent
Order with respect to post-Consent Order products is
reversed. We remand for further proceedings with respect
to violation of the Consent Order.
 AFFIRMED-IN-PART, REVERSED-IN-PART, AND
               REMANDED
