By Daniel Venglarik and Neil Ferrari (March 20, 2018, 11:55 AM EDT) -- A recently filed petition for rehearing en banc, if granted, may open new arguments for applicants fighting subject matter eligibility rejections. Since Alice, a frustrating aspect of subject matter eligibility determinations for patent prosecutors has been the typically fact-free analysis by examiners. However, three recent Federal Circuit decisions all authored by Judge Kimberly Moore conflict with the U.S. Patent and Trademark Office's guidance that "judicial notice" fact-finding is sufficient for subject matter eligibility rejections. In addition, the substantial evidence standard applicable to administrative fact-finding during examination does not comport with the underlying "examiner expertise" rationale for that guidance. With dissents in two of the three cases, the petition for rehearing en banc, if granted, may afford the full court an opportunity to participate in clarifying the role of factual evidence in eligibility determinations....