USPTO Updates Guidance on Subject Matter Eligibility Declarations

On April 30, 2026, the U.S. Patent and Trademark Office issued updated guidance regarding Subject Matter Eligibility Declarations (“SMEDs”) submitted under 37 C.F.R. § 1.132 (“Rule 132”). The guidance confirms that a SMED may provide objective evidence supporting patent eligibility under 35 U.S.C. § 101, particularly evidence showing that the claimed invention provides a real-world technological improvement. The USPTO recommends filing a SMED separately from declarations addressing other statutory requirements and closely connecting the evidence presented in the SMED to the specification and the claims.

The updated memorandum supersedes the USPTO’s December 4, 2025 Director’s Memorandum and indicates that the USPTO intends to further update the guidance. (USDPTO Memorandum)

What Is a SMED?

A SMED is a voluntary evidentiary declaration submitted under Rule 132 to address subject-matter eligibility. Although Rule 132 declarations have traditionally been used to address rejections related to issues such as obviousness, written description, and enablement, the USPTO recognizes their use to provide factual evidence relevant to eligibility.

A SMED to support patent eligibility may explain how a person of ordinary skill in the art would have understood the specification, describe the state of the technology at the time of filing, and provide objective evidence that the claimed invention represents a technological improvement. Depending on the rejection, it may also explain why particular claim features cannot practically be performed in the human mind or how the claimed invention integrates a judicial exception into a practical application.

When an applicant submits a properly supported SMED, the examiner should evaluate it together with the remaining evidence and explain why it does or does not alter the eligibility determination.

Demonstrating Technological Improvement

The updated USPTO memorandum encourages applicants to explain how the claimed invention is “better, cheaper, faster, and/or more efficient.” These are not additional legal requirements for eligibility. Rather, they provide useful framework to describe the invention’s real-world technological application, effect, and benefit.

An effective SMED should do more than characterize the invention as innovative or technically advanced. It should identify the claimed features responsible for the improvement and provide objective support for the asserted benefit, which should be grounded in the specification. For example, a declaration might explain how a claimed data structure reduces memory requirements, how a particular architecture increases processing speed, how a machine-learning arrangement overcomes a recognized technical limitation, or how formatting data in a particular manner enables the data to be input into a machine-learning model.

A Clear Nexus to the Claims Is Needed

An effective SMED must establish a clear nexus between the evidence and the invention as claimed. The declaration should identify the relevant claim language and explain how the claimed combination produces the asserted technological improvement. Evidence concerning benefits produced by unclaimed features may have limited probative value.

A declaration also cannot cure an inadequate original disclosure or introduce new matter. It may explain how a skilled artisan would understand an improvement already disclosed in the application, but it cannot supply a technical improvement that the specification did not originally describe. Applicants and attorneys should therefore confirm that both the specification and the claims support the improvement discussed in the SMED.

SMEDs Should Be Filed Separately

Although Rule 132 permits a single declaration to address multiple grounds of rejection, the USPTO recommends filing a SMED as a separate document devoted exclusively to subject-matter eligibility. A declaration addressing § 101 should ordinarily be separated from declarations addressing obviousness, secondary considerations, enablement, written description, or other statutory requirements.

The Bottom Line

A SMED may be particularly useful when an eligibility rejection rests on a disputed factual premise that cannot be adequately addressed through attorney argument alone. Examples include conclusions that claimed operations can be performed mentally, that recited computer components are merely generic, or that the claimed invention does not improve technology or computer functionality.

Applicants should nevertheless evaluate the use of a SMEDs on a case-by-case basis. Statements in a declaration become part of the prosecution history and may later be considered in connection with claim construction, validity, or enforcement proceedings. A declaration should therefore be accurate, technically supported, and carefully aligned with the specification and claims.

The USPTO guidance also reinforces the importance of describing technological improvements in the original application. Because a SMED cannot supplement the specification, applicants will be in a stronger position if the specification identifies the relevant technical problem, explains how the invention addresses it, and connects the resulting improvement to the features likely to be claimed.

SMEDs can provide applicants with an effective evidentiary tool for responding to § 101 rejections. A strong SMED should be filed separately, identify the specific claimed features responsible for the technological improvement, establish a clear nexus between those features and the supporting evidence, and remain grounded in the original specification.