USPTO Issued Updated Patent Eligibility Guidance

Patent applicants can now use a standardized flowchart to navigate eligibility declarations and streamline filings.

Updated on Sept. 29, 2026 in Remote Work

Isometric editorial illustration of blank parchment sheets beside interlocking slate-blue geometric plinths, representing patent filing clarity. — The U.S. Patent and Trademark Office issued updated guidance and a new flowchart to standardize subject matter eligibility declarations for patent applicants. AI Illustration. Upload story photo >

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Is it a good idea for patent applicants to volunteer detailed eligibility defenses to the USPTO?

The U.S. Patent and Trademark Office has released an updated memorandum and flowchart for Subject Matter Eligibility Declarations submitted under 37 C.F.R. Section 1.132. This guidance is designed to assist applicants in clarifying the record or overcoming subject matter eligibility rejections.

Why it matters

Clearer documentation practices help businesses avoid statutory intertwining, potentially speeding up the patent prosecution process. The updated flow provides a consistent framework for examiners to evaluate submissions, reducing uncertainty during technical reviews.

The USPTO released updated guidance for declarations under 37 C.F.R. Section 1.132, building upon two prior memos issued in December 2025. The update includes a new five-step best practices approach for applicants filing with code AF/D.SMED.

The players

U.S. Patent and Trademark Office

The federal agency responsible for issuing patents and trademarks in the United States, managing intellectual property policy and examiner operations.

John Squires

The Director of the U.S. Patent and Trademark Office, responsible for overseeing patent examination procedures and agency rulemaking.

The details

The new flowchart guides examiners and applicants through the formalities and substantive evaluation of eligibility declarations. By submitting these declarations separately from other patent responses, firms can isolate their arguments and avoid statutory confusion. The office clarifies that this memorandum maintains current practice rather than introducing new procedural requirements.

September 2025: Director John Squires issued his first two official patents.
December 4, 2025: The USPTO released two initial memorandums regarding the use of SMEDs.
April 30, 2026: Director Squires issued an updated best practices memo.
September 29, 2026: The agency published the updated memorandum and flowchart.

Market Landscape

This memorandum refines the application of 37 C.F.R. Section 1.132 to improve consistency across the patent examining corps. It follows a series of updates since December 2025 that aim to standardize how applicants address subject matter eligibility rejections.

Applicants should integrate the new AF/D.SMED code into their filing workflows and adopt the new flowchart to ensure eligibility declarations meet current examiner expectations. Consult with patent counsel to evaluate how this new guidance impacts existing or pending eligibility rejections.

The takeaway

Standardizing how your technical and legal teams present eligibility data can help clear patent hurdles more efficiently. Review your current patent application filings to ensure they utilize the new document code AF/D.SMED for all relevant subject matter declarations.