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Cingular [Tries to] Patent Use of Emoticons on Cell Phones:
I think this is an important step forward for America. How else are we going to encourage cell phone users to come up with new ways to send text messages? I plan to file my first patent application soon, for "A Method of Using Communications Networks to Distribute Snarky Commentary About Silly Patents."

UPDATE: VC commenters point out that this story is inaccurate. It seems that Cingular applied for the patent, but the application has not been examined and no patent has been obtained.
B. B.:
It's not patented. It's only a published application, and I checked the status and it's not an allowed application either.
1.26.2006 1:30pm
OrinKerr:
BB,

Do you have a link or any other info to confirm that? I'll post an update, but I'd prefer to have more to go on.
1.26.2006 1:35pm
Stephen C. Carlson (www):
Good point, B. B. Let's not forget why patent law has an examination requirement.
1.26.2006 1:36pm
B. B.:
The number listed in the article, "US2006015812" isn't a granted patent number. Granted patents have up to seven digits and, for the latest patents, start with a 6 as there have been over 6 million granted patents. Published applications, at least these days, start with the year as with the number from the article.

I just went to the USPTO page and looked up the status of the application. There hasn't even been an office action yet according to the status shown there.
1.26.2006 1:40pm
Fishbane (mail):
I'll be filing mine as well, "A method and Process of Filtering Electronic Messages for Annoying Patent-Protected Iconographic Paralinguistic Symbols.
1.26.2006 1:43pm
Stephen C. Carlson (www):
The number in the article (US2006015812) has the format of a published application, not that of an issued patent. The status information on the application can be found by going to the PTO home page at http://www.uspto.gov/, clicking on status ( and entering the publication number as 2006-015812 into the public pair system. If you do that, it says that the case has not been examined.
1.26.2006 1:44pm
A. Nonymous (mail):
Please keep in mind that Despair.com has trademarked the Frowny(tm) 5 years ago.

:-(

Press release here.

Official confirmation from U.S. Patent and Trademark Office here.

By the way, it was ok for me to use the frownie :-( because I signed and am using their end-user licensing agreement.
1.26.2006 1:45pm
Main Index Template (mail):
Patent 6,990,452 is a patented case, though that may not be the same one the article s about.
1.26.2006 2:33pm
Main Index Template (mail):
Here is a link to a patent similar to that mentioned in the story, though it might be from a different company. Link.
1.26.2006 2:37pm
Curtis Yarvin:
I used to work for a "mobile Internet" company (we were mainly responsible for inflicting WAP on the world) that had a very active patent policy. This was back in the boom days, and we got multi-kilobuck bonuses for every patent application filed.

A common (and certainly not discouraged) patent generation methodology was to think of any ordinary engineering technique or application and add the words " - on a phone!" For example, "linked lists - on a phone!" I don't think we ever filed this specific example, but who knows, we could have. Of course some of these applications were rejected, but the general industry practice, at least in software patents, is to model the PTO as a lottery and shoot for quantity.

I still wonder whether, when I read my Gmail over the WiFi at Starbucks, whether I'm infringing RIM's "email - on a phone!" patent. Or is Google? Or is Starbucks? No doubt one of you legal eagles here has the answer...
1.26.2006 2:48pm
TravisW (mail):
The :-( is only for greeting cards, posters, and art prints (there is another registration, but nothing that would prevent you from typing it in a comment to a blog), so go ahead and use it to your heart's content, without accepting some ridiculous end-user license (is that thing intended to be a joke?)
1.26.2006 2:55pm
TravisW (mail):
I guess I should have read the press release before posting. It's a great joke.
1.26.2006 2:59pm
A. Nonymous (mail):
TravisW sayeth:


I guess I should have read the press release before posting. It's a great joke.


Yeah, any end user agreement that leads off with "Do Not Fold, Bend, Mutilate or Spindle this agreement." includes a provision that "You agree that the Frowny(tm) will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act" and ends with "Please refer to the "Frowny(tm)" Owner's Manual for
instructions of proper use." is indeed a joke.

The greatest bit of humor is that 1) the trademark is real and 2) the end user agreement is only a tenth of an inch past the point of being real. I could indeed think of patent and trademark lawyers I worked with who would think to include provisions that precluded "shipping" a frownie :-( to another nation and think it a serious and needed precaution.
1.26.2006 3:13pm
Bruce:
It took me a while to figure out how to look this up -- if you go here, and then type in 20060015812 (note the extra zero after the year compared to the number in the article), you'll get the application. It's not just for using emoticons in text messages, the patent is on a dedicated button on a cell phone that would insert graphic icons (i.e., smiley faces) into your text message. Arguably still somewhat obvious, but not quite as precedented as typing emoticons.
1.26.2006 3:47pm
Ghost_of_Solon (mail):
It will be killed for lack of novelty.
1.26.2006 4:10pm
Main Index Template (mail):
Okay, since no one seems to have followed the link I left, let me type in the abstract of a patent that was granted on Jan. 24, 2006:

United States Patent 6,990,452
Ostermann , et al. January 24, 2006
Method for sending multi-media messages using emoticons

Abstract
A system and method of providing sender-customization of multi-media messages through the use of emoticons is disclosed. The sender inserts the emoticons into a text message. As an animated face audibly delivers the text, emoticons associated with the message are started a predetermined period of time or number of words prior to the position of the emoticon in the message text and completed a predetermined length of time or number of words following the location of the emoticon. The sender may insert emoticons through the use of emoticon buttons that are icons available for choosing. Upon sender selections of an emoticon, an icon representing the emoticon is inserted into the text at the position of the cursor. Once an emoticon is chosen, the sender may also choose the amplitude for the emoticon and increased or decreased amplitude will be displayed in the icon inserted into the message text.

Here is the link to the full patent.
1.26.2006 4:12pm
ShelbyC:
Well, appearently making a cat chase a laser pointer is patented, as is a rocket powered by "natural" gas. These appear to be granted patents, and not applications. Does anyone know how to tell the difference?
1.26.2006 4:16pm
WB:
Here is the link to the patent application.

Though, I note that the status is current as of August of last year.

Main Index Template, if you compare the patent data on the link above to the patent data for Patent Number 6,990,452, the patent didn't issue from Cingular's application.
1.26.2006 4:31pm
byrd (mail):
I seem to recall from Patent class, the standards for 'novel' and 'non-obvious' are so low as to practically not exist. One of the examples the Professor used was an actual patent grant for the process of swinging sideways on a park swing.

We hear a lot online about problems with out of control copyright law. The state of patents is not much better.
1.26.2006 5:58pm
Splunge (mail):
I suppose I can't patent the obtaining of silly patents. But maybe I'm not too late to register all "I'm going to register all [silly trademark registration]" jokes...
1.26.2006 6:31pm
Just a Patent Attorney (mail):
It is dangerous to look at only the title or abstract and try to divine what the claimed invention is trying to protect. If one examines the claims of the patent application, one would find six independent claims of varying constructions and breadth. Independent Claims 1, 3 and 8 are "method of generating a displayable icon" claims as dedicated to specific usage with a "mobile device" (cell phones) (Claim 1), an "electronic device" (PCs) (Claim 3) and a "mobile station" (laptops) (Claim 8), in which at least one dedicated key is mapped to a specific emoticon(s).

Independent Claim 13 describes a "computer readable medium" that generates graphics representing an emotion(s) in response to a dedicated key on a key pad. "Computer readable medium" broadly protects operations that may be stored and extracted from hard disk, floppy / removable disk, flash memory, or other forms of memory.

Independent Claims 22 and 27, respectively, describe an apparatus (physical embodiment). Claim 22 is an apparatus used in a wireless network; Claim 27 is an apparatus used in communication between a user and an external network. The nuts and bolts of the claims, though, boil down to describing at least one dedicated key on a key pad mapped to generating a displayable icon when actuated.

Thus, the applicants and attorney(s) have followed the general path of claims drafting in software / computer related technology: method of use claims; computer readable medium claims; and apparatus claims - all incorporating the element of a dedicated key(s) for generating specific emoticons.

In terms of patent prosecution, novelty and obviousness can be summed up in this way: novelty = is there a single prior art reference that discloses each and every element of the claim(s) as the elements are arranged in the claim? ; obviousness = is / are there one or more references in combination that disclose all the elements of the claims, and is the combination of the references suggested within the art? Novelty is a somewhat difficult standard for an examiner to meet; obviousness is less difficult.

IMO, the Cingular application has an uphill battle in the face of the '452 patent (assuming that the examiner finds this patent and views it as particularly relevant), and any other prior art that is probably floating around the PTO library.

I hope I didn't waste anyone's time with this information / opinion. :o)
1.27.2006 2:45am
WB:
Byrd, the standard for novelty and obviousness are a lot lower (as a practical matter, not as a legal matter) in the patent office than in litigation. The PTO has a backlog and grants a lot of patents that shouldn't be granted. It's only a single-digit percentage of these patents that end up being litigated, and many of these are invalidated in litigation.
1.27.2006 8:55am
Sigivald (mail):
To refine what Bruce said, from my reading of the patent, this is not in any way an attempt to patent emoticons themselves.

It is simply and purely a patent for an interface for putting them in messages. (This is made more obvious by the application's listing a list of emoticons in general use at time of application, which would fairly obviously make them non-patentable, wouldn't it? Patent appliers are, I'm sure, generally not inclined to both include and point at prior art uses of what they're trying to patent, in the application itself, eh?)

Others in various forums have suggested the interface patent will be untenable due to prior art (giving various examples I don't recall the specifics of), but that's another matter.
1.27.2006 12:37pm