In an order denying en banc hearing for the CAFC decisions in Berkheimer and Aatrix, a concurrence penned by Judge Alan Lourie, and joined by Judge Pauline Newman, stated that patent eligibility is unclear under the current Supreme Court precedents such as Alice and Mayo, and suggested the new for clarification, "perhaps by Congress."  

The joining together in the concurrence of Judges Lourie, who is more skeptical of patents, and and Newman, who is a patent rights' proponent, is rare, as they typically fall on opposite sides of patent issues.  USPTO Director Andrei Iancu also has called the current precedents "difficult to follow."