On April 30, 2026, the U.S. International Trade Commission proposed amendments to 19 C.F.R. Part 210 that would require all nongovernment parties in Section 337 Investigations to disclose entities with an ownership or financial interest in those Investigations—including third-party litigation funders. Comments are due June 29, 2026.
Please reach out to Jim Dowd or Derek Gosma if you have any questions or would like assistance preparing comments in response to the Commission’s proposed amendment.
I. What The Proposed Rule Would Require
Complainants will be required to file, concurrently with the complaint, a separate disclosure statement identifying their parent corporation, any entity owning the parties' stock, and any entity that provides funding for the Investigation or whose approval is necessary for litigation or settlement decisions.1 Notably, the proposed rule presently requires only identification of interested entities—not production of full funding agreements.
The Commission’s stated objectives are (1) conflict-of-interest screening for Commissioners, Administrative Law Judges, and staff; (2) clarity about whose rights are genuinely at issue; and (3) transparency to facilitate settlement.2
II. Background
Section 337 Investigations conducted by the U.S. International Trade Commission most often involve claims regarding patent infringement and the Commission has recently become a more popular forum for patent assertion.3 The Commission currently does not require complainants to disclose whether third parties have a financial interest in or are exerting control over the suit.4 According to the U.S. Government Accountability Office, however, third-party funded patent litigation now accounts for a substantial proportion of all patent litigation.5 Indeed, most large technology companies reported to the GAO that more than half of patent suits filed against them involve confirmed or suspected third-party funding.6 Several District Courts have recognized this trend and have begun requiring disclosure of third-party litigation funding.7
Last September, the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies urged the ITC to “promptly implement measures to ensure disclosure of any persons and entities with a beneficial interest” in Section 337 Investigations.8 The proposed rule appears to respond to this Congressional mandate.
The Commission has invited comments on, among other things, whether ownership disclosure should be triggered only above a particular percentage and whether the rule should apply to complainants alone or to all parties.
III. The Case for Disclosure
Despite the unavailability of damages in Section 337 Investigations, complainants still rely on litigation funding. More than half of the final determinations issued in Section 337 Investigations have historically resulted in the finding of a violation.9 The resulting exclusion orders in those cases offer complainants powerful leverage to extract settlements, especially when complainants bring co-pending district court litigation. In July 2019, for instance, one of the largest providers of litigation financing issued a press release announcing that it was funding a patent enforcement campaign based on a portfolio of patents related to fabricating Light Emitting Diodes (LEDs).10 That funding allowed for District Court and Section 337 actions to be filed against five major retailers, resulting in multiple settlements.
Unforced public disclosures of litigation funding are rare, however, and supporters of rules requiring disclosure often emphasize that third-party backed suits are merely attempts to force a license under the threat and cost of litigation. For example, in 2016, the Federal Trade Commission published a study on Patent Assertion Entity Activity which found that the “overwhelming majority of reported licenses [in its study] followed a patent infringement suit against the potential licensee.”11 Such tactics could be avoided with additional transparency because when the real party in interest remains hidden, respondents cannot fully evaluate settlement dynamics, the Commission cannot screen for conflicts, and the public interest analysis proceeds on an incomplete record. Indeed, the FTC’s study recommended, inter alia, reforms to “provide the courts and defendants with more information about the plaintiffs that have filed infringement lawsuits.”12
This view is consistent with the broader trend towards transparency in litigation. In February 2026, for instance, Congress introduced the Litigation Funding Act of 2026,13 and in March, U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice submitted a joint proposal to amend Federal Rule 26 to require automatic disclosure of third-party litigation funding.14
IV. Potential Pushback On The Proposed Rule
Despite the growing consensus around the need for transparency in litigation, supporting commentary is needed to address the arguments that litigation funders and others have raised to prior attempts to introduce similar rules. For instance, in 2024, the Litigation Transparency Act15 was submitted by Chairman of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, Darrell Issa, and proposed requiring disclosure of parties receiving payment in all civil lawsuits.16 When introducing the Act, Congressman Issa highlighted that “[t]hird-party litigation funding also poses unique challenges in patent litigation cases, where investor-backed entities seek large settlements against American companies.”17 Among others, the International Legal Finance Association opposed The Litigation Transparency Act, arguing that such disclosures will harm small-scale inventors and startups that cannot afford expensive litigation, and would force disclosure of sensitive legal strategies.18 The Litigation Funding Act of 2026 appears to sidestep some of these concerns by only requiring disclosure in mass tort and class action suits, and where the funder is a commercial enterprise, foreign state, foreign person or sovereign wealth fund.19 As another example, the End Anonymous Patents Act, which required disclosure of any real party in interest whenever a patent was sold, granted, or conveyed, was unsuccessfully introduced in 2013 and again in 2015.20
Opponents to the Commission’s proposed rule may thus argue that it risks disclosure of trade secrets (e.g., the investment strategies of litigation funders) or of confidential and privileged information (e.g., case valuations, risk assessments, or broader assertion campaign strategies) considered as part of the litigation funding arrangement. They may also question the administrative burden of ongoing disclosure in the ITC’s fast moving proceedings and argue that such disclosures will distract from the merits of the case.
Finally, patent holders have also argued that mandatory disclosure will discourage third-party investments, thereby preventing them from asserting their patent rights. 21
V. Conclusion
The ITC’s proposal reflects a growing consensus that the participants and beneficiaries of litigation should be visible to the tribunals that adjudicate those cases. The Commission’s rulemaking should benefit from the broad perspective of experienced litigants who have appeared before it or have been subject to third-party funded suits.
Stakeholders should consider submitting comments before June 29, 2026.
