The Alice/Mayo framework is certain and predictable

As the Supreme Court is the only court that can overturn its precedent, absent intervention from Congress, the Alice framework will continue to govern the analysis of whether an invention is patent eligible. However, lower courts led by the Federal Circuit have and will continue to refine the boundaries and application of the Alice framework. The USPTO also has taken steps to provide clarity in this area of law by promulgating iterative guidance to those seeking a patent, including example AI claims that are patent eligible.84 Importantly, such guidance while helpful to practitioners and examiners comes with an important disclaimer, as it is not "the law of patent eligibility, does not carry the force of law, and is not binding on" the courts.85

Despite the criticisms, and the need for further clarity regarding the application of the Alice framework, some evidence suggests that the law is much more predictably applied now86 (and perhaps always has been),87 including with regard to AI patents.

Indeed, a co-author and I's empirical examination of all post-Mayo Federal Circuit decisions on § 101 found that the lower tribunal correctly decided the eligibility issue nearly 90% of the time.88 Additionally, perhaps somewhat surprisingly, the affirmance rate on § 101 decisions has remained incredibly [*14] consistent since 2014 never falling below 81%.89 Moreover, looking more closely to determine whether lower tribunals were reaching the correct outcome but still misapplying the law, the Federal Circuit noted an error in the lower court's analysis in a very small percentage of decisions in which the overall result was correctly decided.90 Thus, it appears that the district courts and USPTO are not only reaching the correct outcomes in nearly all cases, they are also applying the law correctly.