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."
“I believe the law needs clarification by higher authority, perhaps by Congress, to work its way out of what so many in the innovation field consider are Section 101 problems,” Judge Lourie wrote. He added that individual patent cases are not ideal for setting broad principles, so the issues “certainly require attention beyond the power of this court.”