Section 101 Declarations: Using the USPTO's 2026 SMED Guidance for AI and Software Patents

On April 30, 2026, USPTO Director John A. Squires issued an updated memorandum on Subject Matter Eligibility Declarations (SMEDs). The memo supersedes the December 4, 2025 best-practices guidance and provides additional updates, annotations, and comments based on practitioner feedback. The memo states that no substantive changes to the December 4, 2025 memo, the SMED Examiner Memo, or the updated MPEP guidance were intended.

SMEDs are voluntary. They are not a new procedural requirement, and they are not specific to AI or software patents. They are an existing tool under 37 C.F.R. § 1.132 ("Rule 132") that the USPTO has clarified, formatted, and is now actively encouraging for inventions where eligibility is the bottleneck. The April 2026 memo identifies modern innovation areas that may not readily lend themselves to traditional "working model" submissions, including software, AI, quantum, and diagnostics. For software and AI filings, including many data-analytics implementations, the same point applies: a SMED can help explain less visible or less tangible technological improvements in a form the Office can evaluate.

This page covers what SMEDs are, what the April 30 memo clarifies, how to structure a strong SMED for an AI-assisted or software invention, and where the evidence comes from. If you are an attorney preparing a §101 response, this is a workflow the USPTO is signaling it is willing to consider when the record would benefit from focused factual support.

This article presents published USPTO guidance and law-firm analysis for educational purposes. It is not legal advice. Consult a registered patent attorney for filing decisions.

What a SMED actually is

A Subject Matter Eligibility Declaration is a sworn statement filed under 37 C.F.R. § 1.132 (Rule 132) supporting an applicant's §101 eligibility argument with factual evidence. It is the same procedural vehicle attorneys have used for years to support §§102/103/112 arguments with declarations from inventors, experts, or third parties. The SMED is the §101-specific application of that vehicle.

The declaration is sworn, signed by a competent declarant, and made of record. Examiners are obligated to consider timely submitted evidence, and In re Oetiker places the initial burden on the Office to establish a prima facie case of unpatentability. A well-supported SMED does not change the legal standard, but it can improve the prosecution record by giving the examiner specific factual evidence to address regarding how the claimed invention works and why it reflects a technological improvement or practical application.

The mechanism is not new. The April 30, 2026 memo's contribution is to reinforce and refine the format and substance of SMED practice, so examiners encounter focused declarations and applicants receive clearer treatment of evidence directed specifically to §101.

What a SMED cannot do: the new-matter constraint

This is the constraint that determines how to use a SMED in practice, and it is often missed in discussions of the April 2026 memo. Under 35 U.S.C. § 132(a), no new matter may be added to a patent application during prosecution. A Rule 132 declaration filed in support of a §101 argument should therefore be anchored to:

• Material disclosed in the specification at filing, including original drawings, examples, and described embodiments; and/or
• Material known in the art and available to a person of ordinary skill, such as cited references, published methods, standard benchmarks, or conventional approaches.

A SMED may explain, contextualize, or provide factual support for how a person of ordinary skill would understand the disclosed invention. It should not be used to add missing technical disclosure or to convert an undisclosed implementation detail into part of the invention. Post-filing evidence may be useful where it supports the claimed, specification-disclosed technological improvement, but it should not supply a technical theory that the application itself failed to disclose.

The practical implication: the evidentiary value of a SMED is largely set at the filing stage. If counsel wants the option to support a future §101 response with strong technical evidence, the underlying technical material should be considered for inclusion in the specification at filing. After filing, counsel's ability to use later declaration evidence is constrained by the disclosure and by the need for a clear nexus to the claimed invention.

This is why the strongest use of structured technical-disclosure tools is at the drafting stage: surface the technical evidence in time for counsel to evaluate it for inclusion in the specification. Once filed, that material remains available as referenceable support for §101 arguments later, whether via SMED or any other prosecution path.

How widely SMEDs are actually being filed

Adoption is not uniform, and the procedural benefit is the subject of practitioner debate. Some practitioners view SMEDs as a useful evidentiary record-builder for §101 responses; others are cautious about adding material to the prosecution record without clear necessity. The USPTO's encouragement is a procedural development, not a measured-outcome study of widespread practitioner adoption.

Counsel evaluating whether to file a SMED on any given matter weighs the marginal benefit against the increased record-exposure of additional declaration material. The April 2026 memo does not change that calculus; it refines the format for practitioners who decide to file. The decision itself remains case-specific and informed by counsel's professional judgment about the prosecution record.

What the April 30, 2026 memo clarifies

1. Standalone declarations, separated from other §§ declarations

The single most actionable practice point: the USPTO encourages applicants to file a SMED focused solely on §101, distinct from any Rule 132 declarations supporting novelty (§102), obviousness (§103), or written description (§112). Combining all of an application's evidentiary arguments into one declaration may be permissible, but the April 2026 memo explains why a separate SMED can avoid confusion and improve clarity.

A standalone SMED puts §101 in front of the examiner as a discrete evidentiary issue. It also creates a cleaner record for any future district-court or PTAB review.

2. Evidentiary focus: "better, cheaper, faster, and/or more efficient"

The memo states that a SMED may demonstrate how one of ordinary skill in the art would interpret a specification that describes a technological improvement, plainly how the claimed invention, supported by the specification, is better, cheaper, faster, and/or more efficient, and thus patent-eligible.

That language is important, but it is not a new legal test for eligibility. Alice/Mayo remains the legal framework. The "better, cheaper, faster, and/or more efficient" language is best understood as a practical evidentiary frame for showing that the claimed invention reflects a specification-supported technological improvement or practical application.

The distinction matters. A SMED that says only "the invention is faster because a generic computer performs the task faster than a human" is weak. A SMED that explains how the claimed data structure, training process, model architecture, network protocol, diagnostic pipeline, or software implementation improves the operation of a computer or another technical field is stronger.

The implication is concrete: a SMED should not merely assert improvement. It should tie the asserted improvement to specific claim limitations and to the filed specification. Objective metrics, named comparators, and benchmarks are powerful where available, but the core requirement is nexus: the evidence must be relevant to the claimed invention and the technological improvement described in the application.

3. The "living document" framing

The April 2026 memo positions itself as part of an ongoing guidance process. The USPTO states that it is planning periodic updates and will keep practitioners advised. MPEP § 716.01(c)(III) is under review for potential revision, particularly regarding how declarations are treated as evidence.

Practical takeaway: the SMED format is in active development. Practitioners filing SMEDs in mid-2026 should expect format guidance to evolve, and should write to the underlying substance: technological improvement, practical application, evidentiary nexus, and specification support.

4. The USPTO is reporting early success without numbers

The memo's preamble notes that "early feedback indicates that voluntary submitters are having success" with the SMED approach. No specific success-rate data is published. Read this as encouragement, not as a measured outcome study. The Office is signaling: practitioners who are filing SMEDs are seeing engagement; the Office wants to see clear, focused evidentiary submissions where appropriate.

What a strong SMED looks like for AI and software inventions

The April 30 memo identifies software, AI, quantum, and diagnostics as modern innovation areas that do not readily lend themselves to traditional working models. That is not because these technologies are subject to different §101 law; the Alice/Mayo two-step applies to all. It is because these technologies often involve less visible or less tangible technological improvements that may benefit from supplemental factual explanation.

Five attributes of a strong SMED for an AI or software invention:

1. A clear technical problem and claimed technical solution. "The invention performs better than prior systems" is weak. "The claimed indexing architecture reduces query latency by avoiding repeated traversal of the full dataset" is stronger. The evidence should explain the technological mechanism, not merely the business result.
2. Objective metrics where available. Throughput, latency, accuracy, energy consumption, memory footprint, training cost, inference cost, failure rate, or false-positive rate can be powerful. Quantification is not always required, but a SMED that can objectively support the asserted improvement is harder to dismiss than one relying only on attorney argument.
3. Evidence chain to the claims. Each technical improvement asserted in the declaration should map to specific claim limitations. The examiner is reading the SMED with the claim language open in another tab; the SMED writer should anticipate that.
4. Declarant qualifications matched to the technical claim. An inventor declarant who built the system may be well positioned to explain measured behavior and implementation details. A subject-matter expert may be better positioned to explain how a person of ordinary skill would understand the invention against the broader technical background. One or both may be appropriate depending on the record.
5. Careful source citations. Benchmarks, prior-art references, public technical materials, design documents, and, where appropriate, tested implementation evidence can support the declaration. But counsel should submit only what is useful and necessary. A SMED creates prosecution-history evidence, and unnecessary detail can create later claim-construction, disclaimer, confidentiality, or litigation risk.

A SMED template: what to populate, where the evidence lives

The April 2026 memo's emphasis on claim-linked evidence, practical application, and specification-supported technological improvement maps to a small number of structured sections. Practitioners drafting SMEDs for AI and software inventions can use the following as a working template:

Template structure derived from the April 30, 2026 USPTO memorandum's emphasis on claim-linked evidence, technological improvement, practical application, and specification support. The memo does not prescribe this exact table format; it prescribes the substance. Format remains at the practitioner's discretion.

Where the evidence comes from

This is where the SMED workflow intersects modern disclosure tooling. The April 2026 memo emphasizes objective evidence directed to eligibility, a clear nexus between the evidence and the claimed invention, and a POSITA-level explanation of how the specification describes a technological improvement. That is the type of information a well-designed code-scanning disclosure pipeline can help identify:

• Distinctive algorithms, architectures, and methods identified by automated scanning of an actual codebase, with evidence citations to specific files and commits.
• Strategic concepts with scoring against prior approaches and potential measurable distinctions.
• An evidence trail that counsel can evaluate for possible inclusion in the specification or later use in prosecution.

ObviouslyNot's scanner produces output structured for this kind of evidentiary chain. The most valuable place for that output to land is the specification at filing, where it remains permanently available as referenceable technical support for any future §101 argument counsel needs to make. Once filed, the specification defines the available technical disclosure; material not in the specification should not be added later through a SMED as though it were part of the originally filed invention.

The scanner is therefore most useful upstream of prosecution: at the drafting stage, before filing, when counsel and the inventor still have control over what goes into the record.

The scanner identifies; the patent attorney determines what to include and how to claim. The attorney's role is unchanged. What changes is that the attorney now has a structured technical baseline to evaluate for inclusion in the specification at filing, rather than building the evidence inventory from scratch each time. See the attorney landing page for how this fits drafting and prosecution practice, or scan your codebase directly.

What this is not

The April 2026 memo is widely being discussed as "the SMED guidance." Some of the discussion has overstated what the memo actually does. To be clear about what it does not do:

• SMEDs are not mandatory. They remain voluntary. An applicant who does not file one is not procedurally disadvantaged. The applicant who files one well may create a stronger evidentiary record.
• The memo does not change Alice/Mayo. The legal test for §101 eligibility is unchanged. The memo is about how to present evidence in support of eligibility arguments under that test, including practical-application and technological-improvement arguments.
• "Better, cheaper, faster, and/or more efficient" is not a standalone test. The phrase is useful because the USPTO used it, but the improvement must be tied to the claimed invention, supported by the specification, and framed as a technological improvement or practical application.
• SMEDs do not guarantee allowance. A strong SMED creates a more defensible record and gives the examiner specific factual evidence to address. It does not replace the underlying eligibility analysis.
• The memo does not exempt AI or software from §101 scrutiny. Those technologies remain subject to the same eligibility framework. The SMED is a tool for navigating that framework, not a workaround.
• A SMED can create record risk. Declaration evidence can be helpful, but it can also create admissions about what was conventional, what feature allegedly drives the improvement, and how the applicant characterizes the invention. Counsel should balance the benefit of the declaration against prosecution-history, confidentiality, and litigation considerations.

How this fits the broader USPTO 2026 picture

The SMED memo is part of a broader USPTO posture under Director Squires. Three other 2026 developments worth tracking alongside:

• Discretionary denial framework for PTAB IPR institution, including Magnolia Medical Technologies v. Kurin.
• Ex parte reexamination pre-order procedure, effective for requests filed on or after April 5, 2026, allowing patent owners to submit information before the Office determines whether a request raises a substantial new question of patentability.
• Updated AI inventorship guidance treating AI as a tool under human conception standards, consistent with the principle that inventors must be natural persons.

Read together, the Office is signaling that quality patents with documented evidentiary support are favored, while procedurally weak filings face increasing scrutiny. SMEDs are the §101-specific manifestation of that posture.

See also our Software Patents After Alice guide for the broader §101 landscape and AI Patent Legal Precedents for the case-law backdrop.

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