The USPTO has given practitioners meaningful confirmation that voluntary Subject Matter Eligibility Declarations (SMEDs) are delivering results. For companies and their representatives handling patent-eligibility rejections, this is consequential.

John Rogitz's June 4 analysis in IPWatchdog, Inc of the Office's April 30, 2026 update offers an insightful, practice-focused breakdown and closes with a litigation caution worth weighing before advising a client to file an SMED.

SMEDs, voluntary declarations under Rule 132 submitting factual evidence of technological improvement or practical application into the record, appear to be moving past the untested-experiment stage. The Office reports early practitioner feedback shows voluntary submitters are having success and examiners are taking these submissions seriously.

Practical Guidance from the Analysis

  • File SMEDs as a standalone declaration. Combining §101 testimony with obviousness or other arguments can dilute the probative value of both and risk procedural confusion on appeal.
  • Nexus is not formalism. Each assertion should map to specific claim language. Generic testimony about a technological field or end-use benefits is less likely to be effective; the evidence should demonstrate a specific improvement to the technology itself or a concrete integration of an abstract idea into a practical application.
  • Evidentiary weight remains an open question. It remains unclear whether a properly supported SMED satisfies the applicant's evidentiary showing under MPEP §716.01(c)(III) absent contrary examiner evidence, rather than merely being weighed. The distinction matters: a declaration that shifts the burden back to the examiner is far more valuable than one that enters as a competing data point.
  • The memo foreshadows further consideration. The Office signals iterative refinement based on real-world experience — a notable shift from prior guidance that often arrived reactively after judicial decisions.

A Litigation Caution

The analysis also flags a practice caution: SMEDs create witnesses. A declaration becomes part of the prosecution history, and the declarant can face deposition and cross-examination in later litigation. The same specificity that persuades an examiner can later supply a litigator with admissions to exploit — statements about what the prior art lacked, or what the invention does and does not cover, that may constrain claim construction or invite estoppel. Before recommending a SMED, the conversation about who will sign, what they are committing to under oath, and the defensibility of the evidence should come first.

Used deliberately and cleanly, the SMED looks like one of the more useful tools currently available in the prosecution environment.