Key Takeaway: The U.S. Patent and Trademark Office’s April 30, 2026 memorandum encourages patent applicants to submit separate declarations supporting “subject matter eligibility” (SMEDs) in response to § 101 rejections. The USPTO first encouraged this approach in December 2025, and confirms in this latest guidance that such declarations have been helpful in facilitating patent allowance. SMED declarations should explain how the claimed invention is “better, cheaper, faster, and/or more efficient” and provides “real-world technological application, effect and benefit.”
Patent Eligibility Declarations Are Still Favored
On April 30, 2026, USPTO Director John A. Squires issued an updated memorandum on best practices for submitting Rule 132 Subject Matter Eligibility Declarations (SMEDs) to support patent eligibility arguments in response to rejections under 35 U.S.C. § 101. The memo is consistent with and reinforces the December 4, 2025 guidance that Knobbe Martens previously analyzed. The update signals that SMEDs have been helpful to applicants, and that the Patent Office intends to refine the program over time. USPTO leadership is clearly prioritizing SMEDs and is seeking to help applicants achieve patent eligibility.
Early Results Confirm That SMEDs Are Making a Difference
The most notable takeaway from the memo is the USPTO’s acknowledgment that “early feedback indicates that voluntary submitters are having success.” Companies and patent owners who have been weighing the costs and benefits of filing SMEDs should take note. The Office is encouraging the use of SMEDs and validating that they have already been effective as a tool for securing patent protection in areas where § 101 rejections have long been a barrier.
What Patent Owners and Applicants Should Do Now
The core best practice remains unchanged: file SMEDs as separate, standalone declarations focused on § 101 subject matter eligibility. Keep any declarations addressing obviousness under § 103 or other statutory requirements separate from SMEDs. Mixing eligibility and obviousness evidence risks confusing the record and reducing the impact of both submissions.
SMED should explain how the claimed invention is “better, cheaper, faster, and/or more efficient,” and provides “real-world technological application, effect and benefit.” Statements should be closely focused on the claimed invention, thereby establishing a “nexus” to the claims. Further guidance is found in decisions like Ex Parte Desjardins and Enfish, LLC v. Microsoft, 822 F.3d 1327 (Fed. Cir. 2016). This case is an example of a claimed software invention that incorporates potentially abstract building blocks into a practical application.
Treatment of Evidence and a Possible MPEP Update
The memo confirms that examiners must address all submitted evidence under Rule 132 affidavit practice (which includes SMED submissions). This principle is supported by In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992). This requirement is a main reason SMED is a powerful tool for patent applicants.
The memo also references feedback from the patent community that unless an examiner presents contrary evidence, there is no need to “weigh” evidence provided in a SMED. Based on this, the USPTO may update the wording of relevant regulations such as MPEP § 716.01(c)(III). Any updates will likely help patent applicants, given that examiners are trained to seek patentability evidence and prior art, not evidence of lack of utility.
What Comes Next
The message from the Office is clear: SMEDs are working, and the USPTO wants to see more of them. The USPTO has committed to providing further updates as it gathers more data on how SMEDs are being used and how examiners are responding. Patent owners and their counsel should watch for refinements to MPEP § 716.01(c)(III) and future guidance based on this “living document” memo approach.
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