Tie Goes to the Runner? Three Months of SMED Practice at the USPTO

"Director John Squires has repeatedly signaled that close calls on patent eligibility should favor the applicant. The December 4, 2025 memoranda on Subject Matter Eligibility Declarations (SMEDs) formalized the invitation: applicants facing Section 101 rejections should submit evidentiary declarations under 37 C.F.R. § 1.132, and examiners should treat that evidence seriously when evaluating eligibility under the preponderance-of-the-evidence standard."

"The theory is that a well-drafted SMED, supported by concrete technical evidence, should create enough disputed facts to tip the balance in the applicant's favor. But the question remains whether examiners on the ground will agree."

"These seven declarations span a range of technologies: data center infrastructure automation, financial analytics, robotic process automation, cybersecurity risk modeling, plant genomics, and blockchain systems. The declarants range from solo inventors with decades of software experience to PhD scientists at venture-backed startups."

Patent Director John Squires adopted a baseball-inspired approach to patent examination, where close calls on patent eligibility favor applicants rather than examiners. In December 2025, Squires formalized this through a memorandum on Subject Matter Eligibility Declarations (SMEDs), encouraging applicants facing Section 101 rejections to submit evidentiary declarations. Examiners are instructed to treat such evidence seriously under the preponderance-of-the-evidence standard. The policy assumes well-drafted SMEDs with concrete technical evidence can create sufficient disputed facts to tip eligibility determinations toward applicants. An analysis of seven SMEDs across diverse technologies—including data center automation, financial analytics, robotic process automation, cybersecurity, plant genomics, and blockchain—reveals the policy's application across various technical fields and declarant backgrounds.

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