Following the controversial three-way-split decision of the Court of Appeal of the Federal Circuit (CAFC) in CLS v Alice, at least two subsequent cases of that Court would seem to show how, without higher guidance from the Supreme Court, an Applicant's chances of success before the CAFC may depend entirely on the arbitrary make-up of the three judge panel.

In June, in Ultramercial v Hulu and WildeTangen, Chief Judge Rader and Judge O'Malley provided a majority opinion overturning a decision of the District Court for the Central District of California which held that claims to a method for distribution of products over the internet do not constitute patent eligible subject matter. The majority decision notes that following Prometheus "a claim is not patent eligible only if, instead of claiming an application of an abstract idea, the claim is insteadto the abstract idea itself". Noting the presence in the claim of a particular "internet and computer-based method" with particular computer-implemented steps, Chief Judge Rader indicates that this is sufficient to avoid claiming the abstract idea itself. Specifically rejected is any approach which sees a "court go hunting for abstractions by ignoring the concrete, palpable, tangible limitations of the invention the patentee actually claims."

While concurring with the outcome of the majority decision, Judge Lourie provided a separate judgement, indicating his disagreement with the way in which the majority decision was reached. In particular, he indicated that the majority decision failed to follow the guidance set out in Mayo v Prometheus and the tests for abstractness set out in leading judgement, written by Judge Lourie, in CLS v Alice.

More recently still, in Accenture v Guidewire, the CAFC, under a different composition, issued a majority judgement, written by Judges Lourie and Reyna, affirming a decision of the District Court for the Central District of Delaware that claims to "system for generating tasks to be performed in an insurance organization" were not patent eligible. The appeal related only to the system claims though the District Court had found both the system and method claims to be ineligible. In the majority decision, Judge Lourie found that despite additional specific limitations in the system claims, the claims were essentially directed to an abstract idea of handling insurance related information. This remained the case regardless of the recitation of specific, limiting components, including two databases, a client-server arrangement, a task engine and a task assistant.

In a dissenting judgement by Chief Judge Rader, he affirmed his view set out in his dissenting judgement in CLS v Alice and the judgement in Ultramercial v Hulu that the recitation of specific limiting components were sufficient to confer patent eligibility.

Like Alice, WildTangent have applied for permission to appeal to the Supreme Court. It is still not known, however, whether the Supreme Court will agree to hear the cases, or to provide a concrete workable test for determining patent eligibility of computer implemented inventions if they do. Until such a time, it seems that Applicants appealing to the CAFC are somewhat at the mercy of chance.