Analysis of comments to Proposed § 210.14a Disclosure Rule (Real-Party-in-Interest / Third-Party Litigation Funding Disclosure in Section 337 Investigations)
Roughly 82% of the 28 unique comments submitted support the disclosure rule, with just 5 commenters, or 18%, opposed. Those opposed comprised primarily litigation funding lobbying organizations and advocates. Most commenters, regardless of their overall position, proposed amendments or clarifications to the rule.
Comments responding to the ITC’s April 30th Notice of Proposed Rulemaking (NPRM) are accessible via the ITC’s Electronic Document Information System (EDIS). This analysis reflects comments posted on EDIS as of July 10, 2026.
On April 30, 2026, the U.S. International Trade Commission published a Notice of Proposed Rulemaking (91 Fed. Reg. 23190) to add a new § 210.14a to 19 C.F.R. Part 210, requiring parties and intervenors in Section 337 investigations to disclose (1) parent corporations/stock owners, (2) entities with the legal right to bring the investigation besides the complainant, and (3) third-party litigation funders and entities whose approval is needed for litigation/settlement decisions.
Section 337 investigations before the U.S. International Trade Commission (ITC or Commission) have become an increasingly popular venue for patent holders to enforce their rights. A Section 337 complainant who prevails can obtain an exclusion order barring the importation of infringing goods, without the multi-year timelines often associated with parallel district court litigation—and without the need to prove damages. As the volume and profile of Section 337 investigations has grown, so has the role that third-party litigation funders play in bringing those cases. Until now, however, the Commission's rules have not required complainants to disclose whether an outside funder has a financial interest in, or exercises control over, an investigation.
The prevalence of third-party funding in patent litigation is well documented elsewhere. In a December 2024 report, the U.S. Government Accountability Office found that third-party litigation funding now accounts for a substantial share of all patent litigation, and that most large technology companies surveyed reported that more than half of the patent suits filed against them involved confirmed or suspected third-party funding. Federal district courts have already begun responding to this trend: Chief Judge Colm Connolly of the District of Delaware, for instance, issued a standing order in April 2022 requiring parties before him to disclose litigation funding arrangements. Congress has introduced a series of bills aimed at the same problem—including the End Anonymous Patents Act (2013, 2015), the Litigation Transparency Act (2024), and, most recently, the narrower Litigation Funding Act of 2026 (introduced in February 2026)—though none has yet been enacted.
The ITC's proposal follows a direct legislative request. In a September 2025 report accompanying its appropriations bill, the House Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies urged the Commission to “promptly implement measures to ensure disclosure of any persons and entities with a beneficial interest” in Section 337 investigations. On April 30, 2026, the Commission answered that call, publishing a Notice of Proposed Rulemaking that would amend 19 C.F.R. Part 210 to require complainants—and potentially other non-government parties—to file a disclosure statement, concurrent with the complaint, identifying their parent corporation, any entity with an ownership interest in the complainant, and any entity that provides funding for the investigation or whose approval is required for litigation or settlement decisions.
The Commission has offered three justifications for the proposed rule: facilitating conflict-of-interest screening for Commissioners, Administrative Law Judges, and Commission staff; providing early clarity about which entities' rights are genuinely at issue in an investigation; and promoting transparency to facilitate settlement. Notably, the proposal as drafted would require only identification of interested entities, not production of the underlying funding agreements themselves. The Commission specifically invited comment on several open questions, including whether any ownership-disclosure obligation should be triggered only above a particular ownership percentage, and whether the disclosure obligation should extend to all parties or be limited to complainants.
The proposal arrives amid a broader, bipartisan push for transparency around litigation funding across the federal government. In March 2026, the U.S. Chamber Institute for Legal Reform and Lawyers for Civil Justice jointly proposed amending Federal Rule of Civil Procedure 26 to require automatic disclosure of third-party litigation funding, and in February 2026, Senator Chuck Grassley introduced the Litigation Funding Act of 2026. As with the USPTO's recent rulemakings affecting the Patent Trial and Appeal Board, the ITC's proposal drew a robust public response over its comment period.
As of July 10, 2026, roughly 22 out of the 28 distinct commenters support the rule–with most urging that the rule be made broader and harder to evade. Those supporters include the major bar associations, US companies, trade associations, and economic empowerment groups.
4 opposed it outright (ILFA, IDA, ACAA, Lone), while NPE Daedalus Prime’s comments were mixed, in that it opposed mandatory funder-identity disclosure, but supported approval-rights disclosure.
The many supporters of the disclosure rule include numerous American operating companies, tech/hardware trade associations, and business-litigation reform groups, while opponents are unsurprisingly members of the litigation-funding industry itself as well as inventor and justice accessibility advocacy groups.
Of the 28 comments, 25 propose at least one specific, concrete rule-text change; 3 (Save Our Standards, American Civil Accountability Alliance, and — largely — Inventors Defense Alliance) confine themselves to general support or opposition without proposing alternative text. The most common proposal, appearing in roughly 20 of 28 letters across both supporters and opponents of the broader NPRM, is adoption of a 10% ownership-disclosure threshold modeled on FRCP 7.1. Several other proposals—closing the "counsel loophole," broadening the funding trigger beyond the specific ITC matter, and adding a continuing duty to update disclosures—also draw support from a dozen or more commenters.
Support for the Rule
A vast majority of the commenters (22 out of 28) support the rule, citing the need for increased transparency.
Supporting the need for the rule (SIIA):
"[I]n any given Section 337 investigation, the Commission and the responding parties frequently have no way of knowing whether an undisclosed funder is directing the litigation, who that funder is, or what interests it is advancing. The proposed rule is a direct and proportionate response to that information gap."
Supporting the need for the rule (BSA):
argues the convergence of non-practicing-entity litigation and undisclosed funding "erodes the integrity of the remedy from the inside out," depriving the Commission of "information that is foundational to evaluating whether the proceeding serves the statutory purposes that justify the remedy."
Opposing the rule (IDA):
"The proposal extends beyond traditional federal disclosure frameworks, would require disclosure of remote, passive, and immaterial interests with little relevance to the Commission's stated objectives."
Ownership Disclosure Threshold — § 210.14a(a)(1)
The single most common recommendation across supportive comments (20 out of 28) was to add a 10% ownership threshold (mirroring FRCP 7.1) rather than requiring disclosure of every entity owning any amount of stock, which, as noted by ITCTLA has been successfully used by the federal courts for more than 20 years.
Unified Patents: argues the 10% baseline was appropriate for ordinary equity, but that a catch-all should exist for non-stock financial interests and proposes adding, after the stock-ownership language, disclosure of "any entity, other than a publicly traded company with no ownership interest above 10%, that has a direct financial interest in the outcome of this investigation, including by virtue of a profit-sharing arrangement, a right to proceeds from settlement or award, a contractual interest in licensing revenue..." to align with FRCP 7.1.
ABA: also recommends aligning with FRCP 7.1, “requiring identification of ‘any parent corporation and any publicly held corporation owning 10% or more of its stock,’” which would “reduce the potential burden of disclosure on parties with complex corporate structures.”
HPE/Juniper: explains the practical burden on public companies:
"HPE has thousands of shareholders that are not necessarily known to the company and can change frequently, rendering it impracticable for HPE—or any publicly-traded company for that matter—to comply with the proposed rule in the absence of an ownership threshold."
IDA (opposing broad disclosure generally): argues the absence of a threshold is the core flaw:
"The rule could be read to seek the identity of each and every individual in an investment vehicle, such as a pensioner member of a pension fund."
The "Funding Specifically for the Investigation" Loophole — § 210.14a(a)(3)(i)
This was the most frequently criticized piece of drafting among supportive commenters (13 comments; 3 limiting/opposing), who warned that funders finance multi-forum "campaigns" or "portfolios" rather than single ITC proceedings, allowing the funding trigger to be circumvented. Indeed, funded lobbying entities already assume that campaign portfolio funding would be excluded as written.
TechNet, citing a real example:
"Atlantic IP and its subsidiary Arigna Technologies Ltd., both Irish entities, have pursued a worldwide patent campaign and filed Section 337 actions at the Commission against U.S. businesses including Apple, Google, General Motors, and Microsoft. We recommend that the Commission instead require disclosure of any entity that stands to benefit, financially or otherwise, from any agreement that contemplates the outcome of the investigation."
SIIA proposed changes to the rule text:
"That provides funding for, or that has a financial interest in the outcome of, the section 337 investigation, whether pursuant to an agreement relating specifically to the section 337 investigation or to an agreement covering related litigation in any other forum..."
Apple proposed nearly identical language and framed the fix as a functional test: "The touchstone should be whether a non-party has a meaningful stake in the outcome or meaningful influence over the investigation—not whether its role fits within a narrow corporate label."
HTIA recommended adjusting the language to funding "for a patent assertion campaign" rather than "specifically for the section 337 investigation." Directionally, that would include, inter alia, portfolio funding, and include trade secret, trademark, and unfair competition claims.
Contrasting industry view (ILFA): ILFA — representing litigation funders — argued that the language as proposed already excludes portfolio funding, seemingly in anticipation of counselling its members not to disclose such funding:
"This additional language makes clear that law firm portfolio funding arrangements are excluded... The funder is not in contractual privity with the underlying litigant, and the lawyers are subject to the Rules of Professional Conduct. The funder accordingly has no ability to control or influence the litigation."
The Counsel Exclusion / Law-Firm-Financing Loophole — § 210.14a(a)(3)
One of the most frequently proposed amendments (12 supporting; 1 opposing) was to require disclosure when a funder finances a party’s outside counsel or law firm’s case portfolio directly, rather than the party itself, which allows the funder to avoid disclosure entirely. The ILFA comments suggest that funding entities are already preparing to exclude such arrangements from disclosure compliance as written.
Garmin flagged this specifically:
"Many litigation financiers in the United States now directly fund law firms through loans, revolving lines of credit, nebulous financial instruments, or by purchasing interests in shares of the firm's cases... The complexity of these financial arrangements should not be a reason to evade disclosure under the proposed transparency rules."
HTIA, from direct litigation experience:
"In many cases that HTIA encounters, the lawyers supposedly representing a complainant or plaintiff are the only real party in interest in the case. The named plaintiff is often a nominal party; it is the lawyers themselves who are controlling the case and who will principally benefit from any award or settlement."
Unified Patents' noted that the "Proven Networks" case study illustrates this issue. Unified describes an ITC complainant (Proven Networks LLC, Inv. Nos. 337-TA-1275 and 337-TA-1306) that was originally formed as an LLC by attorneys from the Russ August & Kabat firm, who were listed as members/managers, with the business purpose of "investment in patent portfolio":
"[T]he complainant in that investigation was an entity created and controlled by its own litigation counsel, whose financial returns depended entirely on the success of the very litigation they were conducting... Counsel here are not merely being paid a contingency fee; they are equity investors in the complainant entity whose entire financial return depends on the outcome of the investigation."
Unified's recommended fix would carve law-firm equity stakes and firm-level funder financing back into the disclosure requirement, limiting the counsel exclusion to "standard contingency fee arrangements."
Apple proposed narrowing language (with SIIA proposing nearly identical language as well) limiting the counsel exclusion to counsel acting "solely in their capacity as legal counsel under a ... bona fide attorney-client engagement or contingency-fee arrangement entered into in the ordinary course."
Should the Underlying Funding Agreement Be Produced?
One of the sharpest splits across the commenters: identity-only disclosure vs. production of the actual contract.
Require production of the agreement (ILR, CCIA, Intel, BSA, CTA):
ILR:
"Experience has demonstrated that summary descriptions of funding arrangements often prove insufficient to identify governance rights, veto rights, waterfall provisions, repayment structures, or other provisions that may materially affect litigation conduct. Production of the agreement allows the Commission to evaluate the actual rights created by the arrangement rather than relying on party characterizations."
BSA:
"The only way to evaluate whether a funding arrangement presents the kind of influence risk that the Commission's rule is designed to address is to examine the actual agreement."
Identity/description only — no agreement production:
ILFA:
"The Proposed Rule reflects the considered judgment of the Commission about what level of disclosure is appropriately tailored to achieve legitimate transparency goals. It requires limited disclosure regarding a capital provider's identity and rights. It does not require the production of funding agreements... Most federal courts to consider the question have found that funding agreements constitute protected attorney work product."
Daedalus Prime, opposing the funder-identity disclosure requirement in general, made a related "no benefit" argument specifically about respondents gaining unfair strategic insight:
"If there is a litigation funder, then the opposing side will now know more information regarding the complainant's funding for which respondents may use to their advantage. And if there is no litigation funder... that information, too, disproportionately provides the respondents with a strategic benefit... no matter what the situation, the disclosure requirement will... provide an imbalanced strategic advantage to the respondents."
Related/Parallel Litigation Funding Disclosure
The NPRM specifically asked whether funding or approval rights in related litigation (parallel district court cases, PTAB, foreign proceedings) should also be disclosed.
Yes, extend to related litigation (ITCMA, HPE, TechNet, R Street, Unified Patents, ILR):
ILR:
"ITC proceedings frequently arise in the context of broader civil litigation, and without knowledge of funding arrangements in those parallel proceedings, neither the ITC nor the parties can obtain a complete and accurate picture of the interests and incentives driving the dispute."
Unified Patents:
"The funder who is financing the ITC proceeding is virtually always financing the parallel proceedings as well... Prior agreements between a funder... and a respondent may prohibit the litigation. Those prior agreements can only be identified if the respondent knows who the funder is."
No, keep the rule ITC-specific (ITCTLA, AAI, Doane):
ITCTLA: "The ITCTLA does not view funding or necessary approval information from related litigation as relevant to most Section 337 investigations," preferring to let ALJs decide case-by-case based on "specific facts and contentions."
AAI:
"The Commission should decline to extend proposed § 210.14a(a)(3)(i) and (ii) to funding or approvals in related litigation outside of the ITC. Such an extension would broaden the rule beyond its stated purpose and create unnecessary parallel-proceeding complications."
National Security / Foreign Funding
A large share of supportive comments emphasized foreign-funder opacity as a national-security rationale, often citing the same handful of examples.
TechNet:
"Anonymous funding — whether sourced from foreign sovereign wealth funds, opaque private equity vehicles, or entities with undisclosed ties to foreign adversaries — can be used to target specific U.S. and allied manufacturing nodes... Without disclosure, the Commission cannot reliably distinguish a legitimate Section 337 complaint from a tool of foreign economic disruption."
BSA: documents that "[f]rom 2021 to 2023, four of the top five NPEs were based outside the US or ultimately owned by non-US persons.”
HTIA, with a detailed example:
"HTIA member company Google has been sued more than 50 times by Uniloc, which is a PAE associated with (and funded by) the Fortress Investment Group... Fortress is controlled by Mubadala Investment Company, a state-owned investment management holding company that acts as one of the sovereign wealth funds of the Emirate of Abu Dhabi."
HTIA also recounts VLSI Technology's (Fortress-backed) decision to abandon a $3 billion suit against Intel and grant a covenant not to sue rather than comply with Delaware Chief Judge Connolly's funder-disclosure order.
ILR compiled an extensive record on this point, including letters from Senators Kennedy, Cornyn, Tillis, Scott, and Rubio, a House Select Committee on the CCP report, and the Purplevine IP (China)/Samsung and VLSI/Fortress/Mubadala examples, along with a warning from a DOJ FARA Unit official that undisclosed foreign funding creates three risks: competitive-disadvantage litigation campaigns, discovery-enabled access to sensitive information, and funding of divisive political litigation.
(No commenter argued affirmatively against the foreign-influence rationale; opponents of the rule instead argued the existing domestic-industry requirement and Commission authority to request additional information already address this risk — see ACAA, Section 1 above.)
Access to Justice / Small Business & Independent Inventor Concerns
This is the core of the opposition case, made most fully by Doane, IDA, ACAA, and (in part) Daedalus Prime.
IDA:
"Strong intellectual property rights are meaningful only if innovators have the ability to enforce them... Restricting access to capital does not disadvantage [large, well-resourced foreign infringers]. It disadvantages the American innovators attempting to stop them."
Daedalus Prime, a licensing company and active ITC complainant, framed disclosure as tilting leverage toward well-resourced respondents:
"Litigation financing corrects this imbalance, helping to foster license agreements and outcomes that reflect the true merits of the dispute rather than disparities in the parties' resources."
Daedalus also cites the legislative history of the 1988 Section 337 amendments (Sen. Lautenberg) emphasizing that "[s]maller businesses should not be denied the right to seek relief merely because they may have made smaller financial investments... in developing or exploiting an intellectual property right."
Counterpoint — small-business trade associations that still support disclosure (ACT, CTA): Notably, ACT and CTA — both small-business/startup-focused associations — took the opposite view, arguing that opaque funded patent assertion actually harms their small-business members as targets.
ACT:
"Small businesses that drive American technological leadership and job creation are frequent targets of abusive patent litigation, including litigation funded by undisclosed third parties.”
However, ACT noted that even though TPLF can be a valuable tool, transparency is essential.
Continuing Duty to Supplement Disclosures
There was broad support among pro-disclosure commenters (10 comments) for adding an ongoing supplementation obligation (the NPRM as drafted only requires disclosure at filing). As HTIA notes, "it is not uncommon for third-party litigation funders to begin to finance a litigation or investigation after the proceeding has commenced."
Intel, ITCMA, SIA, R Street, ACT, CCIA, HTIA, Unified Patents, Apple, Ravnitzky all recommend a supplementation duty, most citing FRCP 7.1(b)(2)'s "promptly file a supplemental statement if any required information changes" as the model.
The proposed timeframes vary: 10 days (Intel, ITCMA, Apple), 14 days (Unified Patents), 30 days (Ravnitzky), or simply "promptly" (ACT, following FRCP 7.1(b)(2) directly).
Enforcement / Sanctions for Non-Compliance
Several commenters noted the NPRM is silent on consequences for non-disclosure or false disclosure and proposed adding teeth to the disclosure obligation (7 comments), such as adverse inferences, evidentiary limits, fee-shifting, or dismissal for false or withheld disclosures.
Several commenters flagged that the proposed rule's language invites willful blindness, and recommended a certification requirement after "reasonable inquiry," similar to FRCP 11.
ITCMA and SIA: both recommend the Commission have "explicit authority to compel supplementation and impose sanctions for nondisclosure, including evidentiary limitations, fee shifting, adverse inferences, protective-order restrictions, or dismissal in egregious cases."
Unified Patents: proposes that "willful failure to comply... may be sanctioned by the Administrative Law Judge including by adverse inference, exclusion of evidence, or dismissal of a complaint or defense."
Public Filing vs. Confidential Treatment
Several commenters suggest public filing of at least identity information be required (SIIA, ACT, Apple). For example, SIIA said that "[w]ithout [a public-filing requirement], a party could seek confidential treatment of the funder's identity under 19 C.F.R. § 201.6, which would undermine the very transparency the rule is meant to create." SIIA and Apple both propose identical rule text requiring public filing of identity/address/place of formation while allowing confidential treatment only of the specific commercial terms of funding/approval arrangements.
Others argued that the rule allows confidential treatment of sensitive commercial terms (SEMI, ITCTLA) SEMI recommends the Commission "confirm that disclosure statements containing such information may be filed confidentially in accordance with the Commission's existing rules governing confidential business information... with a public version identifying the covered entities."
Who Must Disclose? Complainants Only or All Parties?
The ABA and AAI support the provision applying to complainants only.
ABA: "The Section believes this provision is most naturally directed at complainants, as the concept of having the 'legal right to bring' the investigation is one that arises on the complainant side."
AAI: "There is no apparent purpose to requiring disclosures for intervenors and respondents—a respondent who is found to infringe, for example, is subject to an exclusion order regardless of what relationship it has with other entities."
ITCMA, R Street, ACT, SIA in part argued that it should apply to all parties:
R Street: "The rationale for the proposed rule applies equally to all parties in an investigation; a one-sided disclosure rule provides only asymmetric information that would not fully inform the Commission."
ACT: supports disclosure by "complainants, respondents, and intervenors," reasoning that "[k]nowing the real parties in interest and those controlling the litigation will aid parties, the Commission, and the public in determining whether there are any public interest concerns."
Prepared from the 34 PDFs uploaded to EDIS under ITC Docket No. MISC-051 (comment period closing June 29, 2026). Two Federal Register notices and one internal "Action Jacket Approval Record" were procedural documents, not public comments, and are not analyzed above. Three commenters (ILR, SOS, ACT) and one (HTIA) each appear to have filed duplicate copies of the same letter under two docket entries; these are treated as single comments above.