Empirically – the Court refuses

Notwithstanding the agreement among the Justices on the governing legal standard that resulted in unanimous decisions in Mayo and Alice, the Mayo/Alice framework spawned significant confusion and debate regarding the limits of patent eligibility and the analysis for making such determinations. Although the "chorus of criticism" has been far from uniform, it has been loud and continues to this day.73 Moreover, it finds support in academia, industry, private practice, and Congress.74 The focus of the criticism is on the Supreme Court's refusal to offer more guidance on what constitutes an "abstract idea"75 and what many have labeled as a difficult and unpredictable analysis.76 Even some judges on the Federal Circuit the court uniquely tasked with bringing uniformity and clarity to patent law waved a white flag: "[I]t [is] near impossible to know with any certainty whether the invention is or is not patent eligible.... [T]his [is an] incoherent body of doctrine."77 Yet, the Supreme Court has not accepted the pleas to wade back into these murky waters. For example, the Supreme Court last year refused a petition for certiorari involving a case that invalidated a patent under § 101, which badly fractured the Federal Circuit into a 6-6 vote regarding ineligibility and prompted a slew of opinions on the state of patent eligibility law.78 On appeal, the U.S. Solicitor General responded to the Supreme Court's invitation to file a brief and argued that the Federal Circuit's decision "reflects substantial uncertainty about the proper application of Section 101, and this case is a suitable vehicle for providing greater clarity," such that the petition for cert should be granted.79 In what appears to be a first, the Supreme Court denied a petition for a writ of certiorari involving a patent case when the Solicitor General has recommended taking the case,80 refusing to revisit its Alice test.81 More recently, the Solicitor [*13] General again recommended that the Supreme Court grant cert in two separate cases involving patent eligibility, deeming them to be "suitable vehicles for providing much-needed clarification in this area."82 The Supreme Court again rejected the Solicitor's recommendations and denied cert in both cases.83