The ITC Looks Behind the Caption with Proposed Disclosure Rule

Patent disputes increasingly turn on a question that does not always appear on the face of the complaint: Who is really behind the case? That question has been moving to the front of patent practice, from renewed real-party-in-interest scrutiny at the Patent and Trademark Office to litigation-funding disclosure requirements in some district courts. Now the International Trade Commission has proposed a disclosure rule for Section 337 investigations that would require parties and intervenors to identify certain ownership interests, entities with legal rights in the asserted claims, and nonparty funders or decision-makers with a financial or control interest in the investigation. For Section 337 proceedings, where remedies can affect imports into the U.S., the proposed rule recognizes that the named parties may not tell the whole story.

The Proposed ITC Rule

The proposed rule would require each nongovernment party to a Section 337 investigation to file a disclosure statement with the Commission at the outset of its participation. The required disclosures would cover three categories: parent corporations and entities that own the party’s stock; any person or entity, besides the complainant, with the legal right to bring the investigation based on the asserted unfair acts; and any non-counsel person or entity that provides funding specifically for the investigation, excluding personal loans, bank loans or insurance, or whose approval is necessary for litigation or settlement decisions.

That third category is likely to draw attention because it addresses litigation funding and settlement control. But the proposal is broader than funding alone. It reaches ownership, legal rights in the asserted claims, and control over litigation decisions. The Commission explains that the rule is intended to help evaluate potential conflicts, provide clarity about entities whose rights are at issue, promote transparency, facilitate settlement, and bring relevant issues to the Commission’s attention.

Part of a Broader Disclosure Trend

The ITC does not frame the proposed rule as a response to recent PTO practice or any particular district court order. The notice instead makes a more general observation: Some federal courts have real-party-in-interest and litigation-funding disclosure requirements to promote transparency and evaluate conflicts, while the Commission does not currently have similar rules. The notice also invites comments on how the proposed rule compares with similar provisions in other federal, state, judicial, or administrative forums.

Even so, the patent-system connection is apparent. At the PTO, real-party-in-interest disclosure has recently returned to the center of Patent Trial and Appeal Board practice. The PTO’s real-party-in-interest requirement is not a freestanding litigation-funding disclosure rule, but it asks about a related issue: whether the named petitioner is the only party whose interests matter, or whether another entity funds, directs, controls, or benefits from the proceeding. That same focus appeared in the Director’s later decision denying institution of an inter partes review involving alleged foreign sovereign interests, where even minority government ownership raised threshold concerns when the petitioner did not show the absence of control.

Some district courts have asked similar questions through litigation-funding disclosure requirements. Chief Judge Colm Connolly’s standing order in the District of Delaware is a prominent patent-litigation example, requiring disclosure of certain nonrecourse funding arrangements, including whether the funder has approval rights over litigation or settlement decisions. There is still no uniform federal rule requiring disclosure of litigation funding in every case. But the ITC proposal shows that the same basic concerns about ownership, funding, and control are now part of the conversation in Section 337 practice.

Practical Implications

If adopted, the proposed rule would add a new diligence step to preparing and responding to Section 337 investigations. Parties would need to assess whether ownership structures, license rights, funding arrangements, or approval rights trigger a disclosure obligation. That inquiry may be especially important in investigations involving complex corporate families, exclusive licensees, trade secret owners, litigation funders, or other nonparties with a financial or control interest in the dispute. The Commission is accepting comments on the proposed rule until June 29, 2026.

The proposed rule does not prohibit third-party funding, and it does not require disclosure of counsel contingency arrangements, personal loans, bank loans, or insurance. But the Commission suggests that disclosure of certain funding and control arrangements may assist with conflicts, clarify whose rights are at issue, promote transparency, facilitate settlement, and bring relevant issues to the Commission’s attention.

The practical effect would be to make parties account for ownership, rights, funding and control interests that may sit outside the caption but still bear on the investigation. That fits the broader trend discussed above: In Section 337 practice, as in other patent forums, the named party may not tell the whole story.