"Of course, Judge Moore is correct that Chenery doesn’t apply for yet another reason. The Supreme Court specifically said that alternatives grounds to affirm an agency are appropriate to save the need for a wasteful remand. But that is exactly what the original Comiskey panel did, and exactly what the revised Comiskey decision orders as well. The case is getting remanded to the USPTO for determination about whether the machine claims in the patent are patentable subject matter. Specifically, here is what the revised Comiskey opinion says: "As to all of these claims, which under the broadest reasonable interpretation recite the use of a machine, we think that the § 101 question should be addressed in the first instance by the PTO. We therefore remand to the PTO to consider whether independent claims 17 and 46 (with dependent claims 18-29, 31, 47-57, and 59) and dependent claims 15, 30, 44, and 58 recite patentable subject matter under § 101.""