Immediately, Justice Steven Breyer interrupted. All this discussion implies that the Supreme Court believes software is patentable. But the Court has never actually ruled this on its own, Justice Breyer realized. "I take it that we are operating under the assumption that software is patentable? We have never held that in this Court, have we?" he asked."
No, answered Joseffer. "So what should we do here?" Breyer continued. "Since it's never been held that it's patentable in this Court, if I were writing something, should I say 'on the assumption that it's patentable?' Since the issue isn't raised?"