On February 20, 2026, Gadgets, Gigabytes and Goodwill Blog co-editor Owen Wolfe spoke at the Fordham School of Law as part of the Fordham Intellectual Property, Media & Entertainment Law Journal Symposium, The Meaning of Ownership: Rethinking Intellectual Property, Creativity, and Control in the Age of Innovation. Owen discussed how courts have so far applied the “fair use” doctrine to cases involving generative AI, distinguishing between use of copyrighted materials in gen AI training and gen AI outputs that are alleged to be substantially similar to the original works. He noted that the decisions to date have been mixed, with some courts finding that certain uses of copyrighted works for AI training are fair use, and other courts expressing skepticism about whether that is the correct result. Owen also surveyed arguments both for and against a finding of fair use, giving the audience food for thought about what courts might decide in the future and whether we might see an amendment to the Copyright Act down the road.

Owen’s talk followed one by Dr. Douglas Lind, a professor at Virginia Tech, who surveyed the history of copyright law in the United States. He focused on the law’s treatment of phonograph records and sound recordings when those new technologies first emerged. Dr. Lind noted that copyright law evolved, and the Copyright Act was eventually amended, to address those new technologies. Dr. Lind raised the question of whether the Copyright Act should be amended again to address gen AI.

Owen and Dr. Lind then sat for a panel discussion and questions from the audience.  Audience questions focused on potential confusion between original works and AI-generated works, and the steps that creators might be able to take to protect their name, image, and likeness beyond copyright law. The discussion confirmed that AI continues to be a hot topic, resulting in thoughtful discussion from multiple different angles and perspectives.

Seyfarth is proud to share that John Carl “JC” Zwisler has been named a Top Author in Trademarks in the 2026 JD Supra Readers’ Choice Awards, recognizing his exceptional thought leadership and strong reader engagement throughout 2025.

JC’s insights on trademark strategy, brand protection, and emerging developments in intellectual property law resonated with readers nationwide. His recognition reflects both the depth of his experience and his commitment to delivering practical, timely analysis for clients and industry professionals.

In addition to this individual honor, Seyfarth was recognized for one of the Top Read Articles of 2025 in the Education category. Authored by partners Alison Silveira and Lilah Wylde, “Federal Court Pumps the Brakes on House v. NCAA Settlement: What Comes Next for Roster Limits and College Athlete Pay?” examines the federal court’s decision to pause approval of the House settlement and explores the broader questions universities must address as litigation and regulatory expectations continue to evolve.

Two other Seyfarth attorneys were also recognized in the 2026 JD Supra Readers’ Choice Awards for their outstanding contributions:

The JD Supra Readers’ Choice Awards honor leading authors and firms whose thought leadership achieved the highest levels of reader engagement across the platform. Based on 2025 readership data spanning 33 key topics, the awards recognize standout contributors among more than 70,000 authors nationwide.

Alvin Joiner, better known by his stage name Xzibit, is a rapper, actor, and record executive.  He is also the face behind a cannabis brand called BRASS KNUCKLES, which is currently owned by a company called Hero Brands, Inc. In a recent lawsuit, Xzibit’s ex-wife, Krista Joiner, alleges that through a smokescreen of assignments, Xzibit attempted to transfer the BRASS KNUCKLES mark and brand to entities unassociated with her. The case raises interesting questions concerning intellectual property ownership and marital assets. Krista Joiner v. Hero Brands, Inc., No. 8:26‑cv‑00117 (C.D. Cal.).  

Xzibit may be best known for his hosting duties on the TV show Pimp My Ride, where he and his crew restored individuals’ wrecked cars. Xzibit seemingly sought to parlay his notoriety into a new industry – cannabis. But it appears that he did not do this on his own. Joiner claims that she wasn’t just involved in the creation of the BRASS KNUCKLES brand, but she was the driving force behind packaging, product development, marketing, hiring, and daily operations. The brand grew into a business allegedly valued at over $100 million.  

Joiner alleges that a company called Winslow & Shoomaker was created to own the BRASS KNUCKLES intellectual property. Another company, Hitmarker LLC, owns one‑third of Winslow & Shoomaker.  Xzibit is listed as the sole owner of Hitmarker.  Because Hitmarker was formed while Xzibit and Joiner were married in California—a community‑property state—Joiner argues that she automatically owns half of Hitmarker, since property created during marriage belongs equally to both spouses.

Winslow & Shoomaker filed three U.S. trademark applications for the BRASS KNUCKLES brand. The applications registered in 2018 and were then transferred to another company, BKIP LLC. Hitmarker owns a one‑third interest in BKIP.     

Are you following the bouncing ball? In short, Joiner alleges that she “owned a community property interest in Hitmarker and therefore, an effective 1/6 interest in BKIP and in Winslow & Shoomaker, through Hitmarker’s 1/3 ownership of BKIP.”   

This intellectual property and marital spat escalated when Joiner filed for divorce in February 2021. That action triggered a temporary restraining order that prevents Xzibit or Joiner from transferring marital assets without written consent of the other while the proceedings are ongoing. She alleges that Xzibit violated that order by transferring the trademarks in December 2022 to Hero Brands without her approval, and later moving them again to a separate entity through a different deal. These transfers, she argues, were structured to look legitimate while effectively keeping the intellectual property within Xzibit’s business circle despite divorce restrictions.

Joiner asks the court to nullify the trademark transfers, correct ownership records, and stop Hero Brands from using the BRASS KNUCKLES mark—essentially restoring the IP to the marital estate.

The case highlights that intellectual property created, used, and monetized during a marriage may be treated as marital property, and transfer during a divorce can have serious consequences. In addition to reviewing chain of title, it may be worthwhile to closely look at the entities that make up owners of trademark registrations. Moreover, consideration may be given to the domicile of an entity and whether the state is a community property state. These are just some things to keep in mind the next time you look at Xzibit A to that trademark agreement. 

Seyfarth’s Patent Litigation practice group and partner Lisa Meyerhoff have earned recognition as “Highly Recommended” in World Intellectual Property Review‘s  “USA Patents Rankings” for 2025. The firm earned the designation for its contentious patent work, with Meyerhoff gaining the same honor individually.

The WIPR’s national patent rankings spotlight leading law firms and practitioners who are entrusted with the most significant patent matters in the United States and who build patent portfolios for some of the world’s largest companies.

Seyfarth’s Patent Litigation practice group, part of the firm’s decorated Intellectual Property practice, represents clients in high‑stakes patent disputes, including infringement and enforcement matters.

Unrivaled is a 3-on-3 basketball league founded by WNBA superstars Napheesa Collier and Breanna Stewart. The league has attracted many established WNBA stars, like Ms. Stewart, as well as up-and-coming young players like Paige Bueckers, who signed a deal to play in Unrivaled even before she was selected as the first overall pick in the 2025 WNBA draft.  Unrivaled played its first season in early 2025 near Miami, Florida, and is currently in the midst of its second season. Although most of the games during the 2026 season have again been played near Miami, this past weekend, Unrivaled played some of its games in Philadelphia, with record-setting crowds highlighting the broad interest in this new league.

Unrivaled moved quickly to protect the intellectual property associated with the league, but it has encountered obstacles nearly as tough as the defense of Aliyah Boston (who, as of this writing, leads Unrivaled players in rebounds and blocks per game). The league has attempted to register, among other marks, UNRIVALED (Serial No. 98532992); UNRIVALED U (Serial No. 98655635), and the design mark (Serial No. 98655628). The USPTO has refused to register the marks and, as of this writing, has suspended further action on the applications. It appears that the league is running up against the registered UNRIVALED mark owned by Penn State University (Registration No. 4708398) and the USPTO’s concerns of a likelihood of confusion between the marks. Not only that, but the basketball league has had to contend with earlier-filed, pending applications for marks like UNRIVALED JOY (Serial No. 98248754), UNRIVALED YOUTH SPORTS (Serial No. 98458632), and UNRIVALED BASEBALL (Serial No. 98458635). 

It is not certain whether the league attempted to “clear” UNRIVALED before settling on the name of the league, i.e., checking whether the name conflicted with existing trademarks. It is possible the league proceeded knowing that registering UNRIVALED marks would be a tough battle, but that naming the league “Unrivaled” was important enough to give it a try, even if the odds were as long as a half-court shot. Although it remains to be seen how this issue turns out, as of now, it looks like the league’s attempts to register variations of its name will encounter defense that even Marina Mabrey (Unrivaled’s points per game leader as of this writing) would not be able to overcome.

The league has also encountered stout defense in its attempt to register the design mark (Serial No. 99086262). On January 29, 2026, the USPTO examining attorney issued a non-final action, asserting, among other things, that this color mark cannot be registered because, generally speaking, colors are not distinctive. The examining attorney cited, among other authorities, to a recent decision from the U.S. Court of Appeals for the Federal Circuit on that front. The league has three months to respond.

The league has so far had better luck with its applications to register marks that do not include the word “unrivaled.” These include CROWN THE ONE (Serial No. 99048880; published on June 24, 2025 and notice of allowance issued on August 19, 2025); and the design mark (Serial No. 99311185, where the league responded to a non-final office action on January 12, 2026); and the design mark (Serial No. 98655634). That last mark highlights how long the process can sometimes take.  The league filed its application for that mark on July 18, 2024, well before the first Unrivaled season kicked off. The application was published on November 25, 2025 and a notice of allowance was issued on January 20, 2026, as the second Unrivaled season was underway.

The league also has pending applications for marks relating to the inaugural 2025 Unrivaled teams, the applications for which were filed in late 2024 before the first season started, and more recent applications relating to teams added for the 2026 season, the applications for which were filed in late 2025.  As one example, the league filed an application for this design mark for the Lunar Owls team (Serial No. 98830640):. Although the league filed this application on October 31, 2024—before Unrivaled’s first season began—the USPTO initially refused to approve the mark for publication due to potential confusion arising from inclusion of the phrase “Basketball Club,” which is included in other trademarks. Unrivaled appealed to the Trademark Trial and Appeal Board (TTAB) and asked the examining attorney to reconsider, based on the league disclaiming its rights in “Basketball Club” other than in the mark as shown. Following that request for reconsideration, the examining attorney approved the mark for publication on January 28, 2026, and the mark will be published on February 24, 2026.

All of this underscores that it can be a tricky road for new sports leagues and other new businesses to protect their fledgling brands. Just like pre-game stretching is important for the Unrivaled athletes, early action to protect intellectual property—including clearance searches and early registration applications—is crucial. But even a venture that plans ahead and files applications early, like Unrivaled did with many of its applications, can face a long process and obstacles along the way. The USPTO reports that the average time between filing an application and registration or abandonment is currently 10.3 months. As Unrivaled’s experience shows, however, applicants can sometimes face a years-long road depending on the nature of the marks and the other, similar registrations out there. It can require perseverance and heart, traits that are often on display during the Unrivaled basketball matches.

As the Seattle Seahawks and the New England Patriots meet again on football’s biggest stage, the rematch inevitably pulls everyone back to one moment. Different rosters. Different seasons. Same unresolved question. With a championship on the line, memories of the one-yard line come rushing back, not because the teams are the same, but because the decision still divides fans, analysts, and armchair quarterbacks.

As a brief recap (apologies to Seattle fans for reopening old wounds), late in the fourth quarter of Super Bowl XLIX, Seattle trailed by four points with roughly twenty seconds remaining and only one timeout. On the one-yard line, the decision was widely framed as obvious: hand the ball to Marshawn Lynch (aka Beast Mode), arguably the best power running back in the league at the time. But the game situation significantly narrowed the Seahawks’ options. With just one timeout left, a run on second down that ended in bounds would have forced Seattle either to burn its final timeout or rush into a highly predictable third-down play under extreme time pressure. Bill Belichick understood this constraint. From a clock-management and optionality perspective, a pass on second down was not reckless, it was rational. An incompletion would stop the clock and preserve both third and fourth down. The Patriots were not guessing. They were reading the situation.

When Russell Wilson released the ball, the defense was ready. Malcolm Butler jumped the route, intercepted the pass, and ended the game. In hindsight, the interception hardened the narrative. But hindsight obscures the real lesson. The play call did not fail because it was irrational. It failed because high-reward decisions carry inherent risk, especially when the other side understands the constraints driving the call.

That same dynamic plays out when companies decide whether to patent an invention or keep it as a trade secret. On the surface, patents often look like the riskier choice. A patent application will be published, usually eighteen months after filing, meaning competitors get a clear window into how the invention works. A patent also has a finite life, generally twenty years from the earliest filing date, after which the invention falls into the public domain. Unlike a trade secret, which can theoretically last forever, a patent comes with a built-in expiration clock that starts ticking the moment you file.

More importantly, patents are not guaranteed. Filing an application does not ensure that claims will be allowed, that the scope will be meaningful, or that the rights will survive challenge. During prosecution, claims may be rejected, narrowed, or abandoned altogether. That uncertainty is especially acute in software and AI, where eligibility concerns, obviousness rejections, and functional claiming issues routinely derail applications. In that sense, pursuing patent protection is very much like throwing a pass at the goal line. The play might succeed and win the game, but there is always a real possibility that it gets intercepted by an examiner unconvinced that the claimed invention passes the patentability goal line.

Trade secrets, by contrast, feel like the power run. No publication. No term limit. No examiner second-guessing claim scope. If secrecy is maintained, protection can last indefinitely. For certain categories of innovation (e.g., manufacturing processes, server-side algorithms, internal workflows, or secret recipes and formulations that are difficult to reverse engineer), this can be exactly the right call. But just as a run up the middle only works when the blocking holds, trade secrets only survive when a company puts real protection in place. Reasonable secrecy measures are the IP equivalent of an offensive line and protection package: access controls, compartmentalization, NDAs, monitoring, and training are what keep the defense from blowing up the play. Once that protection breaks down, through employee turnover, a leak, reverse engineering, or independent development, the ballcarrier is exposed, and the protection is gone instantly, with no replay and no appeal.

Belichick’s insight at the goal line is the same insight sophisticated companies bring to IP strategy. He understood not only what Seattle wanted to do, but what Seattle could do given the constraints. In IP, those constraints include how visible the invention will be once commercialized, how likely competitors are to independently arrive at the same solution, how fast the technology will evolve, and whether enforceable rights against third parties are more valuable than indefinite secrecy. On the trade‑secret side, those constraints also include how much “surface area” the technology exposes: the number of employees who must know it, the degree to which it shows up in customer‑facing outputs, and how much operational friction the company can tolerate in order to keep it locked down. In software and AI, where patents face higher prosecution risk but trade secrets can evaporate the moment code behavior becomes observable, the choice is rarely obvious.

The real lesson of that Super Bowl play is not that passing was foolish. It is that good decisions carry risk when the other side understands your limitations. Patents disclose and expire. Trade secrets endure, but only as long as the protections around them do, and those protections can collapse overnight. Filing a patent may result in powerful rights or nothing at all. Keeping something secret may work for decades, or fail the moment the information leaks, the protection measures break down, or a competitor figures it out independently. IP strategy, like football, is not about choosing the move that looks safest in hindsight. It is about making a defensible decision in real time, with imperfect information, knowing full well that even the smartest call can still end with the ball going the other way.

The International Trademark Association (INTA) has recognized intellectual property associate John “J.C.” Heinbockel as one of its 2026 Rising Stars, a distinction that celebrates emerging leaders in the IP profession.

INTA’s Rising Star program identifies individuals who demonstrate exceptional commitment to intellectual property law through substantive work and leadership potential. Honorees are selected for their contributions to advancing the profession and their dynamic skill sets.

REGISTER HERE

Wednesday, January 21, 2026
1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

About the Program

Join Seyfarth partners Lauren Leipold and Ken Wilton as they present their annual recap of the most significant trademark law and litigation developments from 2025. This comprehensive review distills the year’s most impactful court decisions, USPTO actions, enforcement trends, and practical lessons for brand owners and practitioners. Attendees will walk away with a clear understanding of how 2025 shaped the trademark landscape—and how those developments influence current strategies for protection, enforcement, and portfolio management.

Speakers

Lauren Leipold, Partner, Seyfarth Shaw LLP
Ken Wilton, Partner, Seyfarth Shaw LLP

REGISTER HERE

If you have any questions, please contact Sela Sofferman at ssofferman@seyfarth.com and reference this event.

To comply with State CLE Requirements, CLE forms requesting credit in IL or CA must be received before the end of the month in which the program took place. Credit will not be issued for forms received after such date. For all other jurisdictions forms must be submitted within 10 business days of the program taking place or we will not be able to process the request.

Our live programming is accredited for CLE in CA, IL, and NY (for both newly admitted and experienced).  Credit will be applied as requested, but cannot be guaranteed for TX, NJ, GA, NC and WA. The following jurisdictions may accept reciprocal credit with our accredited states, and individuals can use the certificate they receive to gain CLE credit therein: AZ, AR, CT, HI and ME. For all other jurisdictions, a general certificate of attendance and the necessary materials will be issued that can be used for self-application. CLE decisions are made by each local board, and can take up to 12 weeks to process. If you have questions about jurisdictions, please email CLE@seyfarth.com.

Please note that programming under 60 minutes of CLE content is not eligible for credit in GA. programs that are not open to the public are not eligible for credit in NC.

Eminem’s recent trademark activities raise a question. Is Slim being shady in attempting to enforce his trademark rights, or is he duly protecting his brands?  Protecting one’s trademarks isn’t just for big businesses, online retailers, or chain stores. It’s for musical artists too. As discussed in What’s in a (Band) Name? Why Bands Need Trademark Registrations, it’s a good idea for artists to pursue trademark registration as it may protect their name, logo, or other source identifying elements, prevent legal disputes, and expand business opportunities. Artists who recognize the value in protecting their trademarks may see growth in their career beyond the music industry. And perhaps no one understands this better than Marshall Mathers III, better known as Eminem, Slim, or Slim Shady.

Beyond being a legendary rapper, Eminem is also a businessman, having turned his alternate persona into trademarks for various merchandise and music services. He is the owner of the US registrations for the marks SLIM SHADY and SHADY for among other things, clothing, musical sound recordings, and live entertainment services.  Registration of his marks may have helped grow his fictional character –Slim Shady– into a real revenue stream.

Eminem enforces rights in his marks against others, which can be a good thing because lack of enforcement could cause limitations to or a loss of rights.  However, some might argue that his recent enforcement activities are a tad aggressive.      

“My Name Is” – SLIM SHADY or SWIM SHADY

Earlier this fall, Eminem filed a petition to cancel a US registration for the mark SWIM SHADY. The owner of the mark is an Australian beachwear company called Swim Shady. Swim Shady sells beach shades, bags, and swimsuits and registered with the United States Patent and Trademark Office (USPTO) the mark SWIM SHADY for those goods. In his petition for cancellation, Eminem alleged likelihood of confusion and dilution based on his prior use and registration of the SLIM SHADY and SHADY marks and false association with his Slim Shady persona.

Likelihood of Confusion

If a trademark is confusingly similar to another mark, and the goods and services are similar or related, this may cause consumers to mistakenly believe that the goods or services come from or are associated with the same source. This is known as likelihood of confusion and may be reason to refuse an application for registration, cancel an existing registration, or obtain a court injunction to stop the use of a confusingly similar mark.

In this case, Eminem argued that SWIM SHADY is confusingly similar to SLIM SHADY. Specifically, he pointed to the similarity in sight and sound and that the marks are identical but for one letter difference.

Interestingly, the application for SWIM SHADY was not refused in view of Eminem’s prior registrations. Perhaps the USPTO did not consider the marks confusingly similar, or the registrations may not have been disclosed in a search. Unfortunately, we won’t know for sure. 

Eminem did not oppose the application for the SWIM SHADY mark prior to registration. The USPTO publishes applications and allows a 30-day period for third parties to oppose those applications or extend the time to do so. Eminem did neither. However, likelihood of confusion may be a sufficient basis to cancel registered marks.

Trademark Dilution

Eminem also argued that his trademarks will be diluted if the SWIM SHADY mark is not canceled. Dilution may occur when a famous or well-known mark is similar to another mark, such that the distinctiveness or reputation of the famous mark is impaired. Here, Eminem argued that his marks are famous because they have been extensively used and publicized for over 25 years and are distinctly associated with his celebrity. Eminem asserts that continued registration of Swim Shady’s mark would impair the unique association of his marks with Eminem. Also, any goods offered under the SWIM SHADY mark that are of inferior quality to Eminem’s goods could dilute the reputation of Eminem’s marks. Eminem may be worried that if the SWIM SHADY goods are inferior, it would cause a consumer to say I’m “Cleanin’ Out My Closet” of SLIM SHADY goods. 

False Association

Finally, Eminem argued that the SWIM SHADY mark falsely suggests a connection with his Slim Shady identity. False association may go beyond trademarks and can provide protection for a persona. Because SWIM SHADY and Slim Shady differ by only one letter and share the term SHADY, Swim Shady’s mark may create an association in the minds of consumers with Slim Shady, which could damage Eminem’s reputation. If consumers think that the goods are coming from or are authorized by Eminem and they are of poor quality, then consumers may not want to purchase other goods offered under the SLIM SHADY mark.  

Swim Shady may have chosen its mark because it’s an Eminem “Stan.” But if both marks coexist on the USPTO’s register or in the US marketplace, this could lead to consumer confusion. It may also have consumers thinking, who is “The Real Slim Shady?”

International Component

This matter is not limited to the United States.  In Australia, Swim Shady applied to register its SWIM SHADY mark and Eminem applied to register his SLIM SHADY mark. Unlike the US dispute, Eminem does not appear to enjoy priority because Swim Shady’s application was filed before his. Further, it appears that Eminem’s application was refused in view of Swim Shady’s pending application. This is a reminder for brand owners that filing trademark applications in jurisdictions where business is ongoing or may be soon is always a good strategy. Nevertheless, this proceeding could influence the corresponding US dispute. 

Eminem’s Other Recent Trademark Enforcement

It’s unclear whether Eminem will prevail in the SWIM SHADY dispute. However, this is not the first time he has pursued legal action against third parties with marks containing the term SHADY. In 2023, he opposed a trademark application owned by stars of the TV show “Real Housewives of Potomac,” Gizelle Bryant and Robyn Dixon, for the mark REASONABLY SHADY. The application covers a slew of goods and services including cosmetics, candles, mugs, clothing, and entertainment services.  Bryant and Dixon host a podcast with the same name and are known for using the slang terms “shady” and “shade.”

Despite Bryant’s and Dixon’s predilection for talking about shady activity on their podcast, they do not appear so happy with Eminem’s tactics. In a recent motion to compel the deposition of Eminem, the Housewives alleged that Eminem would not agree to a deposition other than one that would begin at 2:00 PM and last two hours. Eminem asserts that his limited availability is because of the need to be at his recording studio every morning.

Conclusion

Eminem’s trademark enforcement strategy underscores the importance of protecting brand identity in a global marketplace. While some may view his actions as overly aggressive, they reflect a broader principle: trademarks are valuable assets that require vigilant defense to maintain their distinctiveness and commercial strength. The SWIM SHADY dispute illustrates the complexities of trademark law, including issues beyond the potentially familiar likelihood of confusion analysis and those posed by international disputes. Whether one sees Eminem’s approach as savvy or “shady,” it serves as a reminder that proactive trademark management is essential for artists and businesses alike to safeguard reputation and revenue.

Every year has its “it” term.
In 2025, the crown belonged to AI, and rightfully so. AI dominated the headlines, flooded the USPTO’s dockets, and triggered more §101 rejections than any examiner would care to admit. If you worked in tech, you had to talk about AI. If you worked in patent law, you likely had to explain why simply applying AI to an existing technology is not patentable.

As a primer, a §101 rejection is basically the USPTO telling you, “Interesting idea, but the law says you can’t patent that,” usually because the claimed invention is an abstract idea. For AI inventions, this often means the USPTO argues that the model is simply performing a function that could be carried out by the human mind, i.e., “a mental process.”

2026 is shaping up differently. This year’s breakout term will not come from Silicon Valley, and it will not be something your non-legal friends casually drop into conversation, unless you are hanging out at the bar after an IP conference (and let me tell you, patent attorneys know how to party). Instead, the hottest term of 2026 is about to come from deep within the halls of the USPTO, courtesy of a December 4, 2025, memo with the energy of “I can’t believe no one remembered this existed.”

Ladies and gentlemen…2026 belongs to SMED. Yes, Subject Matter Eligibility Declarations.

A tool so underused and under-discussed that half the practitioners who read the memo had the same reaction: “Wait… we can file evidence for §101? We’ve been fighting this with words alone?”

Like the Brussels sprouts resurgence of the early 2000s, suddenly SMED is having its main-character moment.

So What Is a SMED, Exactly?

An SMED is a Rule 132 declaration that allows applicants to submit evidence, rather than just an attorney argument, in support of patent eligibility.

That evidence can include experimental results, performance data, architectural explanations, expert testimony, state-of-the-art background, and inventor declarations explaining why the claimed innovation was not routine or conventional.

In other words, an SMED gives applicants a way to show, with facts, why their invention improves technology.

A simple example

Suppose your claims involve a neural network with distributed layers performing gradient-adaptive routing and multi-modal fusion (meaning the system breaks complex data into parts, routes each part to the best tool for the job, and then blends everything back together, essentially processing thousands of conversations, images, and signals at once). An examiner may assert that the steps “can be performed mentally,” such that the claims are rejected for being directed to an abstract idea. Under an SMED approach, your inventor can submit a declaration explaining why a human mind cannot perform the network’s operations: humans cannot simultaneously compute multi-million-parameter tensors, apply real-time backpropagation, perform vectorized attention weighting, or route inputs dynamically across expert layers.

The shift began with the Desjardins decision, now precedential, in which the USPTO formally recognized improvements to machine-learning architectures as technological advancements, not abstract ideas. Reduced storage needs, lower system complexity, and the avoidance of catastrophic forgetting are technological improvements. They are eligible. They are patentable.

The memorandum from Director John Squires reminded the examining corps, and indirectly practitioners, that applicants do not need to rely solely on attorney argument to overcome §101 rejections. They can submit declarations. They can bring in experts. They can introduce objective data, performance comparisons, architecture breakdowns, or state-of-the-art testimony.

In other words, you can actually prove your invention is eligible. An SMED may be used to prove that the invention is not directed to a mental process or that it improves a neural network.

Shocking, I know.

SMED transforms the eligibility conversation from metaphysics (“But is this really an abstract idea?”) into something grounded, factual, and technical. It gives applicants a way to connect the dots between what an invention actually does and what an examiner may be glossing over. For AI, robotics, animation systems, signal processing, fintech, and any architecture-driven technology, SMED may be the star ingredient.

The truth is, SMED has been hiding in plain sight for decades—a quiet Rule 132 declaration. An optional filing that most practitioners never consider. But like Brendan Fraser’s resurgence, all it needed was the right moment, and now that moment is here.

So here we are.
2025 was the year AI took over the world.
2026 will be the year patent lawyers start asking, with increasing frequency and only a hint of dramatic flair:

“Should we just SMED this?”

More often than not, yes.

Welcome to the Year of SMED.