What is a subject matter eligibility declaration (SMED)?
A subject matter eligibility declaration, or SMED, is a declaration under 37 CFR 1.132 that offers evidence that a claimed invention is eligible for patenting under 35 U.S.C. 101. It is aimed at the factual questions inside an eligibility rejection, such as whether the claim reflects a real improvement in how a computer or other technology works. It is not a better-worded argument.
On September 29, 2026, the USPTO published a memorandum and a two-part flowchart showing how examiners evaluate a SMED. The memo supplements the Director's April 30, 2026 best-practices memorandum. The Office says it is consistent with existing guidance and does not announce any new practice or procedure.
Patent bar status: not currently exam source material. The September 29 memo and flowchart are not listed in OED's registration-examination source document, so treat them as a prosecution update, not as tested content. The rules underneath them are a different matter. Rule 132 declarations (MPEP 716) and the eligibility framework (MPEP 2106) are part of the MPEP Ninth Edition, Revision 01.2024, which is tested.
What a SMED is, and where it came from
Rule 132 has long allowed an applicant to submit an oath or declaration to traverse a rejection. Applicants most often use it for obviousness, with evidence of unexpected results or commercial success. A SMED applies the same tool to § 101. The USPTO's guidance has developed in three steps:
- December 4, 2025: first best-practices memorandum on Rule 132 SMEDs.
- April 30, 2026: updated memorandum, superseding the December guidance. It recommends filing a SMED as a stand-alone declaration rather than bundling it with § 103 or § 112 testimony, and building it around objective evidence that the claimed invention is a technological improvement: better, faster, cheaper or more efficient than what came before.
- September 29, 2026: an addendum memorandum, five best practices for applicants, and the two-part flowchart below.
SMEDs matter most in fields where the invention is intangible, such as software, AI, data processing and diagnostics. There, a declaration with test data is the closest thing to a working model an examiner can look at.
When a SMED can help
A SMED is worth considering when the eligibility rejection turns on facts the record does not yet show. Two common examples:
- The examiner finds that the claim does not reflect an improvement to computer functionality or another technology (MPEP 2106.04(d)(1) and 2106.05(a)). Benchmarks, test results or comparisons can show the improvement the specification describes.
- The examiner treats additional elements as well-understood, routine and conventional (MPEP 2106.05(d)). That is a factual finding, and evidence can contradict it.
A SMED will not fix a claim that does not recite the improvement. If the benefit lives only in the specification, or depends on features the claim leaves out, the evidence will have no nexus to the claim. That problem calls for an amendment, not a declaration.
The flowchart, part 1: formality review
Before weighing anything, the examiner checks that the declaration is properly before the Office. A "no" at any step means the declaration is not formally sufficient. The examiner must then explain every reason it is not being considered on the merits.
| Step | Question | Where to look |
|---|---|---|
| 1 | Is it timely? It is if it was filed (1) before a final rejection; (2) before appeal in an application without a final rejection; (3) after final rejection but on or before the date an appeal is filed, with a showing of good and sufficient reasons why it is necessary and was not presented earlier (37 CFR 1.116(e)); or (4) after prosecution closes, if filed with an RCE. | MPEP 716.01 |
| 2 | Does it include the acknowledgment regarding willful false statements? | MPEP 716 |
| 3 | Does it state that statements of the declarant's own knowledge are true, and that statements made on information and belief are believed to be true? | MPEP 716 |
| 4 | Is it signed by a person who has knowledge of the facts asserted? | MPEP 717.01(c) |
Two footnotes on the flowchart are worth knowing. A SMED may be filed before a first action on the merits. And affidavits, which are less common than declarations, must be properly executed (MPEP 602).
The flowchart, part 2: review on the merits
Once the declaration passes the formality review, the examiner assigns each piece of evidence a probative value and then weighs the whole record.
| Question | If the answer is unfavorable | Where to look |
|---|---|---|
| Is objective evidence presented? | No: lower or no probative value. | MPEP 716.01, 2106.07(b) |
| Is there a factually and legally sufficient connection between the objective evidence and the claim? | No: lower or no probative value. | MPEP 716.01(b) |
| Is the evidence supplying information that had to be in the original disclosure? | Yes: lower or no probative value. If no, the evidence carries higher probative value (MPEP 716.01(c)). | MPEP 608.04(a) |
| Weigh the probative value of all the evidence of record. | — | MPEP 716.01(c)–(d), 2106.07, 2106.07(b) |
| After weighing everything, are the claims eligible? | If yes, the examiner explains why the evidence, with the rest of the record, establishes eligibility. If no, the examiner explains why it is insufficient. | Form paragraphs 7.65 and 7.66 |
The flowchart's footnote on the standard of proof is the line practitioners are quoting. Eligibility is decided by a preponderance of the evidence, so a rejection is proper only if it is more likely than not that the claims are ineligible. A 50/50 split is decided in the applicant's favor. Each technology center also has points of contact who can help examiners evaluate SMED evidence (MPEP 706, subsection I, and 2106.07).
What evidence matters
- Objective, measurable results. Benchmarks, test data, error rates, latency, memory or energy use, compared against a stated baseline. Conclusions without data carry little weight.
- A nexus to the claim as written. Tie each result to specific claim limitations. Evidence about a commercial product helps only to the extent the product embodies what is claimed.
- Support in the original disclosure. A declaration can prove what the specification describes. It cannot add the missing description (MPEP 608.04(a)). If the improvement was not disclosed when the application was filed, a declaration will not supply it.
- A declarant who knows the facts. The engineer who ran the tests is a stronger declarant than someone repeating their results.
- A stand-alone document. The April 30 guidance recommends keeping § 101 evidence separate from § 103 or § 112 testimony so the examiner can evaluate it on its own terms.
Why a SMED is different from attorney argument
An eligibility response usually argues: the claim is not directed to an abstract idea, or it integrates the idea into a practical application. Argument explains the record, but it is not evidence. The MPEP is direct about this: attorney arguments cannot take the place of evidence in the record (MPEP 716.01(c)).
A properly submitted declaration changes what the examiner has to do. The examiner must consider it and weigh it against the rest of the record under the preponderance standard, and must explain the outcome either way. Argument asks the examiner to see the case differently. A SMED changes the facts the examiner has to decide on.
A short checklist before filing
- Confirm the rejection turns on a factual question that evidence can answer.
- Confirm the claim recites the features that produce the improvement.
- Find the improvement in the original specification.
- Gather objective data with a clear baseline, and tie it to claim limitations.
- Use a declarant with first-hand knowledge, and include the required acknowledgment and statements.
- File it as a stand-alone declaration, on time for where the application is in prosecution.
Sources
- USPTO memorandum, Subject Matter Eligibility Declarations (SMEDs) under 37 CFR 1.132: Flowchart for Analysis and Best Practices (Sept. 29, 2026)
- USPTO flowchart, Evaluating SMEDs, Parts 1 and 2 (PDF)
- USPTO subject matter eligibility page, with the April 30, 2026 memorandum, examples and training
- 37 CFR 1.132
This article explains USPTO guidance for study and general information. It is not legal advice about a particular application.