PatentNext Takeaway: On April 30, 2026, the USPTO issued a memorandum titled “Best Practices for Submission of Rule 132 Subject Matter Eligibility Declarations (SMEDs),” updating the Office’s December 4, 2025 guidance to applicants and practitioners. The new memorandum reinforces the Office’s SMED framework and characterizes it as a living body of guidance informed by practitioner experience.
The result is not a change in law or procedure, but a signal: the USPTO views SMEDs as an increasingly important evidentiary tool for resolving § 101 issues in emerging and fact‑intensive technologies, particularly artificial intelligence and diagnostics.
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Continuity, Not Course Correction
The April 30 memo is explicit that no substantive changes are being made to the December 4, 2025 SMED Examiner Memo, existing MPEP guidance—including sections 2106 and 716—or the governing Alice/Mayo framework as applied by the Office.
Instead, the update is best understood as doctrinal institutionalization. The USPTO is signaling that SMEDs are working in practice and that examiner and applicant feedback is shaping how the Office thinks about eligibility evidence.
This posture contrasts with prior § 101 guidance, which often appeared as one-off course corrections reacting to judicial developments rather than practitioner experience.
Reinforcing the Case for Separate SMED Submissions
If there is one practice point the April 30 memo continues to emphasize, it is this: SMEDs should be submitted as stand-alone Rule 132 declarations, not bundled with testimony addressing § 103, § 112, or other issues.
The update expands the rationale for this recommendation in several ways. First, doctrinal clarity is improved because eligibility (§ 101) relies on different factual predicates than obviousness (§ 103). Second, from the examiner’s perspective, submitting all evidence under Rule 132 means they must consider each piece. When SMED testimony is mixed with unrelated declarations, it becomes more challenging for examiners to isolate facts relevant to subject matter eligibility, which may reduce the probative value of the evidence. Finally, maintaining record integrity is easier with a discrete SMED, as it results in a cleaner prosecution and appeal record—especially since eligibility issues may evolve independently of prior art disputes.
Emphasis on Nexus
The April 30 memorandum reinforces that SMEDs derive their probative value from objective, claim‑linked facts. To be considered, a SMED must establish a clear nexus between the evidence presented in the SMED and the claims as written, without impermissibly supplementing the specification.
Practical Implications for § 101 Strategy
For applicants facing eligibility rejections—especially in AI‑driven or data‑centric technologies—the message is clear: when the technical improvement is real but not facially obvious, a well‑prepared SMED may be a direct way to put those facts squarely into the record.
Conclusion
The USPTO’s April 30, 2026 SMED update does not rewrite § 101 doctrine. Rather, it positions SMEDs to potentially become a durable part of prosecution strategy and commits the Office to refining guidance based on real‑world use.
In an area of patent law long plagued by unpredictability, that kind of institutional stability may itself be a meaningful improvement.
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