In my opinion, the problem with fixing the patent eligibility “Alice”, 35 USC 101 problem is that few true impartial (i.e. neutral or objective) judges have really been involved yet.
Both the USPTO and Federal judges have at least a subconscious incentive to get complex patents off of their respective desks with a minimum of time and effort. Why fill your head with complex matters — just say the patent is “abstract”, and the problem is gone. Instant relief! So perhaps there is an inherent conflict of interest built into the legal system in this regard.
So, as the Supreme Court itself warned, “Alice” will continue to swallow up more and more patent law. At least until it finally reaches an opposing force. Given our legal system, what might this opposing force be?
The Supreme Court will not be fixing patent eligibility
The Supreme Court is not likely to be this opposing force. It is is not really a neutral party, because it created this mess. As a rule, the Supreme Court does not like to admit error. It will not be fixing this patent eligibility problem anytime soon.
I had hoped that this opposing force might be formed by a group of middle-to-large sized companies, or by the Federal Circuit doing its job and actually cleaning up patent law. This hasn’t happened yet, however. Rather, each Federal Circuit ruling has narrowly focused on a single case, without much regard to making consistent rulings between cases.
The USPTO tried, but lacks sufficient legal “clout”
The USPTO has observed this inconsistency and has attempted to introduce some consistent patent eligibility rules. The problem is that the Federal Courts have made it clear that they consider themselves superior to the USPTO. So far, they have tended to ignore USPTO attempts to reconcile their many inconsistent rulings.
The only remaining true objective party is Congress. There have been a number of congressional efforts in this regard. The problem here is that there are so many other issues that it is hard to get congressional attention.
Future generations will likely find the whole thing to be amusing. It is indeed worthy of Monty Python. The logical problems with Alice are a bit like the parrot in the dead parrot sketch.