January 26th, 2006

Cingular Patents The Emoticon : (

By Alice Hill
RealTechNews

To be honest, I’ve never been a huge fan of the emoticon. When harmless they are cute, when used at the end of a rude comment like “just kidding!” they seem hostile. But for the most part, they are a part of Internet culture ever since email began zinging around. Today, if you can believe it, I found out that Cingular is going to patent the emoticon. As far-fetched as that sound, in this era of Amazon owning “the one-click” and RIM battling for the ability to send Blackberry email, patent law is scary and not even close to overheating. The patent number is US2006015812 if you want to look it up.

We say: :( Why stop there? Why not patent BTW and ROTFL and RTFM?

The USA based mobile operator, Cingular Wireless has managed to get a patent on the concept of using emoticon on mobile phones. While the aim of the patent is to enable the displaying of MSN style graphics on handsets, they also managed to patent the delivery of text based emoticon - so presumably sending :) via an SMS - if selected via a dedicated or softkey, would be a breach of the patent in future. Source: CellularNews

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135 comments to "Cingular Patents The Emoticon : ("

  1. michael says:

    There is something VERY VERY wrong with the patent system if something like this can happen! It defies belief!

    January 26th, 2006 at 8:06 am

  2. Mike says:

    I would like to piont out that the case number US2006015812 is a Pre-Grant Publication number. This essentually means that thier disclosure is published, but in no way patented. I’m going to say that the chances of them getting granted this patent are pretty slim, but then again, I haven’t looked at the case yet, so who knows…they might actaully have something.

    January 26th, 2006 at 8:19 am

  3. Bill Gates says:

    Please cease and desist use of the adjective VERY. We have patented the use of this word in connection with our operating system. Continued use of this word will require payment of $10,000 per use.

    i.e Windows is very good. You will like Windows very much.

    Thank you for your cooperation.

    January 26th, 2006 at 8:21 am

  4. patentgeek says:

    it isstill a patent *application* - chances of this being granted and enforced are pretty slim.

    I hope 8-/

    January 26th, 2006 at 8:22 am

  5. Alice says:

    I have patented the word “the” and “and”. Please be aware that you may be in violation.

    January 26th, 2006 at 8:22 am

  6. jeremy says:

    This is the most ridiculous thing I ever heard. Patents are for protecting intellectual property rights, nobody can own intellectual property rights on a couple of ascii characters in a row to make a smiley face or a frown.

    January 26th, 2006 at 8:24 am

  7. Rick says:

    You only have to visit http://www.despair.com/demotivators/ you will find that they already own the frown emoticon.

    Well, if nothing else, their website is a hoot!

    Say … has anyone patented using a cell phone to make phone calls????

    January 26th, 2006 at 8:24 am

  8. tara says:

    Doesn’t anyone (on the patent-awarding side) have to do any RESEARCH before they grant a patent??? Text emoticons have been around forever. What nutcase is going to let them patent delivery of a : , a -, and a )??? This is asinine. What’s next? A patent on the characters t,t,y, and l? Obviously, someone in charge is in someone’s pocket. Cingular is making someone a little richer. How can the informed public stop these stupid patents?

    January 26th, 2006 at 8:26 am

  9. LenDog says:

    If you think this is silly, lookup who has the “Happy Birthday” song copyright.

    (It’s AOL/Time Warner)

    January 26th, 2006 at 8:32 am

  10. Jeff says:

    I believe emoticons were created by individuals back in the distant fog of the 1980’s, on BBS’s. How can we track down the originator, who almost certainly was *not* an employee of Cingular, as Cingular did not even exist then!

    January 26th, 2006 at 8:32 am

  11. anon says:

    I’d like to point out that there is prior art, since my Kyocera Slider phone (which is not on Cingular’s network) has been able to do this for years (it automatically converts graphical emoticons to text, send them, and then converts them back to the graphic when received).

    January 26th, 2006 at 8:34 am

  12. Alice says:

    What about thse old basc programs that made a Snoopy out of Xs. Why not patent that?

    January 26th, 2006 at 8:36 am

  13. fark says:

    farked!

    January 26th, 2006 at 8:38 am

  14. W. Kells says:

    I agree. Patenting a specific arrangement of any language, be it alphanumeric or special characters is ridiculous. There are just too many permutations of ANY language that may come up out of obscurity, then find out you’re on the hook to pay some jackpot company because they grabbed hold of the obscure name you chose for your child, 3 months sooner. Could we all not decide to patent instantiations of our own name? Anytime someone uses it in print, text, SMS or email, it could mean money.

    Paging John Smith.

    Both Law and Religion have the same faillings. They’re open to interpretation. But that’s also the genius of it. One was meant to be based on faith, the other to run countries. The misgiving is that people who coordinate those laws, must have the best interests of people in mind.

    I’m beginning to confuse which is which now, but the point is: Spirit of the law, not the letter of the law. If some mutation of our wordings in law can be used to allow things like this, it would be reasonable to expect the judiciary committees to make the proper call, and disallow mutilations that manage to remove the ‘free’ in free speech.

    I’m going to patent ‘the’. For that matter.. Why not individual letters? Or even the question mark? I’m pretty sure the first time I used it, I was convinced I had something new. But understandably I wasn’t the first person to use said punctuation.

    However because I can’t prove ownership or creation of said letters is no reason to disallow something. It should be rejected on sensibilities, before even getting to the stage of consideration.

    Not only would it be hard to enforce (aside from incorporating a per-use onto our cellphone bills), but not economically viable to collect in any other manner, costing more in huma-hour costs then the 50 cent infraction itself!

    I see now why revolutions happen. Do this long enough to any population, and they’ll simply stop listening.

    I hope I’m missing something.

    January 26th, 2006 at 8:38 am

  15. AyeRoxor says:

    There is no such patent at the USPTO website.

    http://tinyurl.com/8qaon
    http://tinyurl.com/963×9

    I’m not saying it’s impossible, but Jesus, let’s show some independent proof before getting all excited. This wouldn’t be the first time a news source has been ‘punk’d’.

    January 26th, 2006 at 8:39 am

  16. Alice says:

    More patents on emoticons:

    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2Fsearch-bool.html&r=0&f=S&l=50&TERM1=emoticon&FIELD1=&co1=AND&TERM2=&FIELD2=&d=ptxt

    January 26th, 2006 at 8:57 am

  17. Myopic Zeal says:

    Cingular Patents Emoticon?

    Cellular News is reporting that Cingular has patented the emoticon. If it were April 1st I’d be even more skeptical.
    The USA based mobile operator, Cingular Wireless has managed to get a patent on the concept of using emoticon on mobile phones…

    January 26th, 2006 at 9:03 am

  18. DNA says:

    There was something VERY VERY wrong with the patent system when they started to let people copyright gene sequences and microbes (which both fall under the “no living things” clause but because the Supreme Court is fully of idiots, they said that bacteria can be copyrighted because they aren’t what MOST people consider to be “living things”)

    January 26th, 2006 at 9:05 am

  19. DNA says:

    LOL, fully of idiots? Sorry, I’m obviously an idiot

    January 26th, 2006 at 9:06 am

  20. TGSBSB says:

    This makes me :(

    January 26th, 2006 at 9:16 am

  21. Hypertext says:

    OMGWTF! LOL!!1

    January 26th, 2006 at 9:23 am

  22. Hypertext says:

    OMGWTF! LOL!!1

    January 26th, 2006 at 9:24 am

  23. sketch says:

    WTF?

    January 26th, 2006 at 9:24 am

  24. Hypertext says:

    How do i edit post?

    January 26th, 2006 at 9:25 am

  25. dave says:

    what will teey do if I ues it…Sue me :-( ?

    January 26th, 2006 at 9:29 am

  26. dyssident says:

    I fear they may have a case. A computer program can be copyrighted, and it is nothing but one long number.

    January 26th, 2006 at 9:31 am

  27. Joe Patent Attorney says:

    There is something really wrong with an author of an article who knows nothing about the patent system or patent law to write an article that makes these outrageous claims. Don’t worry, nobody is patenting the “:-)” or any other emoticon. I would ask the article to consult someone who knows something about patent law and then rewrite the article. Nobody would then have to say, “Oh my God, can you believe that Cingular Patented the smiley face”. Do a service to your readers….

    January 26th, 2006 at 9:39 am

  28. Walter says:

    I’m patenting the letters “E” and “e”. I’m gonna be riiiich!

    January 26th, 2006 at 9:46 am

  29. William Porquet says:

    I cite prior examples from the 18th century…

    http://maul.deepsky.com/%7Emerovech/smiley.html

    So there, they can’t patent the smiley. :-)

    Cheers,
    William Porquet (a distant cousin of the guy who published the first smiley)

    January 26th, 2006 at 9:56 am

  30. Jason Ph.D. says:

    Uneducated reactionary banter is always amusing. “Joe Patent Attorney” is absolutely correct.

    January 26th, 2006 at 9:57 am

  31. James Elliott says:

    I had a friend who’s an IP lawyer here in Silicon Valley check on this. That is neither an issued patent nor a valid published patent application number.

    January 26th, 2006 at 9:57 am

  32. Anon says:

    On that French Poetry link, take a look 3 lines down. There is the word singulier. That’s obviously the French word for Cingular. Patented in 1760.

    January 26th, 2006 at 10:18 am

  33. Howard Stern says:

    Hoo hoo hoo Robin, I invented smilies. Tell ‘em, Fred!

    January 26th, 2006 at 10:42 am

  34. Billy Bat says:

    Prior art! Prior art!

    January 26th, 2006 at 10:51 am

  35. COMALite J says:

    I remember when Marvel tried to trademark (different from copyright or patent) the letter “X” because of its use in “X-Men,” “X-Factor,” and others of their comics. Such a trademark would’ve prevented the letter from being used prominently in the title of any comic book or team name from any other company.

    They sent a “cease-and-desist” letter to a company that had a comic called “X-O Manowar” or some such.

    The other company’s lawyer replied something along these lines:

    “After extensive research, we have discovered that your claim to the letter X is invalid due to prior art, as owned by The Children’s Television Workshop, located on Sesame St. According to an episode last week, they own the letter X, along with the letters E, K, and the number 4.”

    Marvel decided not to press the issue further.

    January 26th, 2006 at 12:02 pm

  36. Someone who actually read the application says:

    I’d like to congratulate Ms. Hill on her outstanding article in which she either:
    a) did not actually read any part of the patent application beyond the title,
    b) read the application but didn’t take the time to figure out what it actually was trying to patent, or
    c) read the application, understood what it meant, and chose to completely ignore its contents in order to make her article more ’sensational’.

    This article would be more appropriate on a website called “madeuptechnews.com”

    Ms. Hill may want to look into getting a patent for a method of misinforming the general public.

    January 26th, 2006 at 12:03 pm

  37. M S says:

    OK, read the patent people, it’s not a patent on emoticons, it’s a patent on an extra button they’re going to put on mobile phones to add emoticons.

    Get the facts before going nuts.

    January 26th, 2006 at 12:15 pm

  38. Alice says:

    Check the link on Post #15 in the comments. I did read the application and it may not happen as one commenter added but the patent claim while for a cell phone device would still infringe on desktop IMing as well if anyone wanted to bother with enforcing it. In this day and age that’s nothing compared to what goes on in patent law.

    January 26th, 2006 at 12:31 pm

  39. Alice says:

    And Despair Inc. already trademarked “the frowny”

    DALLAS, TX - January 2nd, 2001 - In a move that has millions across the Internet community frowning, Despair, Inc. today announced that the U.S. Patent and Trademark Office (USPTO) had awarded them a registered trademark for the ‘frowny’ emoticon which serves as their logo.

    At a press conference, Despair’s COO, Dr. E.L.Kersten, announced his intentions to sue “anyone and everyone who uses the so-called ‘frowny’ emoticon, or our trademarked logo, in their written email correspondence. Ever.”

    Despair filed suit yesterday in a U.S. District Court in Dallas, alleging trademark infringement against over 7 million individual Internet users. The company has requested separate injunctions granted against each. It is believed to be the largest single trademark dispute in history.

    According to USPTO records, Despair originally filed for the mark in June of 1998, and was awarded a registered trademark for the ‘frowny’ emoticon logo on May 2nd of this year. Since that time the company has, through the use of the FBI’s controversial new “Carnivore” Internet wiretapping system, surreptitiously monitored unencrypted Internet email and compiled a list of over 7,000,000 individuals who have used the “:-(” emoticon in email.

    Compliance with the injunction will require the defendants to provide to the court and Despair, Inc. a report, in writing under oath, setting forth in detail the manner and form in which the defendant has complied with the injunction to destroy any email in which they have used the offending mark. Despair has also petitioned the court to require defendants to submit a handwritten letter which repeats the phrase “:-( is a registered trademark of Despair, Inc.” one-thousand times. A ruling on the petition is expected within a week.

    http://www.despair.com/demotivators/frownonthis.html

    January 26th, 2006 at 12:34 pm

  40. Alice says:

    http://www.uspto.gov/web/patents/patog/week45/OG/html/1300-2/US06963839-20051108.html

    January 26th, 2006 at 12:35 pm

  41. Someone who actually read the application says:

    “patent claim while for a cell phone device would still infringe on desktop IMing as well”

    Really? Which claim and how do you figure?

    and btw, it’s a patent APPLICATION, not a patent (important distinction) and ‘infringe’ is the wrong term - the application’s claim(s) may be anticpated by desktop IMing or may be obvious in light of desktop IMing matters that will no doubt be fully considered by the patent examiner while determining if the application meets the novelty requirements of the law (of all the problems with the patent office, I don’t think they’re often accused at being lax at digging up prior art and making novelty rejections, even if they’ve got to make some shocking leaps of logic in the process).

    January 26th, 2006 at 12:51 pm

  42. Alice says:

    http://www.teamtechnology.co.uk/troll.htm

    January 26th, 2006 at 12:58 pm

  43. Alice says:

    Poster #41. If you are new to this site, one thing I will always admit to is either being wrong or not knowing as much as some of the RealTechNews readers. You can’t know everything - no matter how many years I’ve spent covering tecnology, there will always be a corner or piece of it that I just don’t know as well as our other readers.

    You seem to know a lot about patents and the application process and implications, so we welcome that. But there’s no need to be all hostile and outraged. Just let us know what you know and we’ll all get smarter.–Alice

    January 26th, 2006 at 1:03 pm

  44. YES!!!!! says:

    I turned the horizontal scroll bar into a LITTLE TINY CIRCLE!!!!!

    Mission accomplished.

    January 26th, 2006 at 1:10 pm

  45. Someone who actually read the application says:

    Alice,
    I apologize for the tone of my earlier posts, particularly the first one (#36). After rereading it, I realize it comes across as far harsher than I intended it to. I let outside factors influence my mood when I was writing it and I should not have done that. I agree with you that the patent process in the U.S. has significant problems - but I disagree that the application you wrote about is an example of any of those problems. However, that does not excuse my earilier rudeness. Again I apologize, and thank you for your response which was more polite than I deserved and showed me more respect than I have shown to you.

    January 26th, 2006 at 1:22 pm

  46. Derek says:

    Well, I patented 0 and 1, so you’ll all be hearing from my attorney shortly

    January 26th, 2006 at 1:23 pm

  47. Alice says:

    Thanks “Someone who actually read the application”
    that was a nice note and few people ever apologize. That’s one thing about posting online - it’s so easy to get frustrated and post something that seems more angry or rude than we intended. I know i have done that many times, and I should know better.

    But I am glad you are here and any insight you have on the topic is really apprecaited. Espeically the hoax angle. I found the link to the application but then somoene else said it did not exist, so not sure what is going on. Anwyay, any take you have on the issue would be great.

    January 26th, 2006 at 1:34 pm

  48. Pat Tentor says:

    You guys and the rest of the world are making complete idiots of yourselves. I can’t believe that this would make headlines in the wireless world when it is completely and totally taken out of context and is full of untruths. Please read the patent, learn a little about patent law and take a look at the device that it covers. Otherwise, you are all off base.

    January 26th, 2006 at 1:35 pm

  49. jacob z. says:

    This is in fact a valid Patent Publication, the USPTO often leaves off a leading zero when they cite a Patent Publication Number (to keep us one our toes, I guess). The actual Pub. No. is US2006/0015812, and you can see the publication here:

    http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220060015812%22.PGNR.&OS=DN/20060015812&RS=DN/20060015812

    The application is not for something as broad “emoticons” but for “A method and system for generating a displayable icon or emoticon…” etc etc. It’s for one way they might be implementing emoticons on their phones. I’m not going to read through the application to find out whether it looks sensible, but i’m willing to bet this patent will be granted regardless. You can get a patent on almost anything.

    January 26th, 2006 at 2:06 pm

  50. admap says:

    Relax folks - read the patent.

    They are patenting shortcut keys for sending emoticons. Because it is cumbersome on a phone to do so currently they are making it easier.

    January 26th, 2006 at 2:12 pm

  51. jacob z. says:

    One more thing seems almost relevant, and that’s my current favorite patent, U.S. Patent No. 6,293,874 for a “User-operated amusement apparatus for kicking the user’s buttocks”.

    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&u=/netahtml/search-adv.htm&r=11&p=1&f=G&l=50&d=ptxt&S1=buttocks.TTL.&OS=TTL/buttocks&RS=TTL/buttocks

    The patent drawings on this one are particularly amusing. :)

    January 26th, 2006 at 2:16 pm

  52. Brian Yoder says:

    The USPTO has been patenting all kinds of incredibly obvious things for a long time. Unfortunately back in the early 1990’s when they considered whether or not to start patenting software (remember, before that they didn’t grant any patents on any software at all!) I worked for Symantec and wrote the company’s response to the idea (which was vehemently opposed to software patents) and as I predicted, the USPTO wasn’t interested in what the software industry wanted or needed (which was perhaps a modified copyright, not a patent system), but they paid much more attention to the bureaucrats and patent attorneys who were salivating over the prospect of gaining all kinds of control over the booming industry. Some of the big boys like IBM loved the idea too since with a big sack of software patents (which literally everyone in the world violates, knowingly or not) they could sue anyone they want into oblivion to avoid competing with them on the merits of their products.

    things have worked out just as I predicted at the time. Patent examiners know little or nothing about what they are granting patents for and what is completely obvious to someone who is working in the field might seem totally innovative to someone with no experience. (A linked list! What a brilliant idea! I’ll grant a patent on that!)

    Someone has to stop this madness, but the patent bureaucracy and all of the people who paid tons of money to get their silly patents is going to be hard to overcome.

    –Brian

    January 26th, 2006 at 3:14 pm

  53. David Schwartz says:

    The issue about “patenting software” is a total non-issue. A patent protects a method, device, or process. Many things that are patented could be implemented in software, in hardware, and many ways in-between. It would be absurd to argue that an innovative device, method, or process should not be patentable simply because it’s possible (or preferable) to implement it in software.

    If software wasn’t patentable, all it would take is a generic robot capable of doing pretty much any physical task to make it so that no idea would be patentable, since that would make pretty much all ideas capable of being implemented in software.

    And anything that can be implemented in software can be implemnented in hardware. There is no such thing as something that “must be implemented in software”.

    January 26th, 2006 at 4:20 pm

  54. Bogus Gold says:

    Cingular Cucks

    Apparently the company Cingular has decided to make its latest contribution to technical innovation by using an idiotic loophole in the law to patent the emoticon.

    This is one of the le…

    January 26th, 2006 at 5:14 pm

  55. hey says:

    :) :) :) :) :) :) :)

    January 26th, 2006 at 6:09 pm

  56. Lockergnome's Tech News Watch says:

    Cingular Patents The Emoticon : (

    To be honest, Ive never been a huge fan of the emoticon. When harmless they are cute, when used at the end of a rude comment like just kidding! they seem hostile. But for the most part, they are a part of Internet culture ever since e-mail began zin…

    January 26th, 2006 at 6:25 pm

  57. SirFire says:

    I have just patented fire. Any future use of fire will be subject to royalty fees.

    January 26th, 2006 at 7:20 pm

  58. Gerontius says:

    Reponse to comment #46 about patenting “0″ and “1″ - someone actually tried that once in the UK.

    http://www.patent.gov.uk/patent/legal/summaries/2004/o21204.htm

    Essentially, this person tried to claim that since the arabs invented the concept of numbers, particular “0″ and “1″, all binary technology belonged to them and a fund should be set up by the affluent west to recompense the arab nations of the world. Or something like that…

    Anyone who has an interest in patents should read through the decision refusing the application, it’s a hoot! And every patent examiner will wince at the fact that the applicant sent an 854 page letter explaining why they should have a patent.

    Basically, this shows that people can file a patent APPLICATION for anything. And good luck to them! But not every APPLICATION is going to get granted. Cingular Wireless have a habit of filing European patent applications and I’m going to keep an eye out for this one to see what the European Patent Office (who rejected Amazon’s One-Click, by the way) have to say about this little beauty of an application.

    Gerontius

    PS Having read the claims of the application, Perkins Coie (the firm of attorneys who are representing Cingular) should be ashamed of themselves. The first apparatus claim (somewhere around claim 40) is a perfect example of really appalling claim drafting. How can you define an invention by what it is not?! I think even the US Patent Office should throw that one out.

    January 27th, 2006 at 1:57 am

  59. Jeffery McLean says:

    A more accurate history of emoticons.
    Chat speak (emoticons and words like “LOL”) started life on Compuserves CB simulator.
    This was the first online multi user chat system. Many people would join it at once and “talk”
    It had a few flaws. No ability to express emotion and every time someone “said” something everything you typed was erased.
    There were a number of solutions. One is to have a sort of “live” macro. Where your computer would store everything you type locally and send it all off at once. Annother is to store some phrases in macros and annother is shorter words.
    Later chat systems such as ICB, RC and IRC would fix the glairing bug but would still retain the problem of expressing emotions. The Macros were used by the exreamly lazy to use one key for each emoticon.

    Chat speak has found its way into e-mail and forums and non-live posts.

    I believe the macros part of the history is significant as this is a patent on a hotkey for emoticons (a macro) not a patent on emoticons themselfs

    January 27th, 2006 at 6:43 am

  60. Bernie Mac says:

    US2006015812 is not a valid patent number which at current would start something like 6,xxx,xxx. The patent has apparently not been granted yet. Having said that, the patent system is eminently flawed. Any idiot, who has not a clue, can come up with a harebrained idea that never works, and then claim all equivalencies that DO work. The Federal Circuit tried to put an end to that by disallowing equivalencies, but was overruled by the Supreme Court. Oh, before I forget let me use an equivalency here: (-Q !!! - (gee, isn’t there a symbol available in e-mails that turns the exclamation point upside down?)

    January 28th, 2006 at 6:30 am

  61. Bernie Mac says:

    I STAND CORRECTED! While it is true that Cingular has not been granted a patent on Emoticans yet, the Patent and Trademark Office has in fact granted a patent on Emoticons to AT&T:
    http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=/netahtml/search-bool.html&r=1&f=G&l=50&co1=AND&d=ptxt&s1=emoticon&OS=emoticon&RS=emoticon

    January 28th, 2006 at 6:44 am

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