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Microsoft Frowned at for Smiley Patent 369

theodp writes "ZDNet UK reports on criticism of Microsoft's attempt to patent the creation of custom emoticons. 'I would have expected to see something like this suggested by one of our more immature community members as a joke on Slashdot,' quipped Mark Taylor of the Open Source Consortium. 'We now appear to be living in a world where even the most laughable paranoid fantasies about commercially controlling simple social concepts are being outdone in the real world by well-funded armies of lawyers on behalf of some of the most powerful companies on the planet.'"
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Microsoft Frowned at for Smiley Patent

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  • by someonewhois ( 808065 ) * on Saturday July 23, 2005 @09:20AM (#13143542) Homepage
    Uh, defensive patents are a common thing in all industries. People just enjoy jumping down Microsoft's throat because they have nothing better to do.

    Having the patent doesn't mean they're going to go sue AOL, Yahoo, etc. if their messengers have custom emoticons. Clue in, guys.
  • by phage434 ( 824439 ) on Saturday July 23, 2005 @09:32AM (#13143594)
    Note that this is an *application* not an issued patent. While I have no trust of the existing patent examination process, we should at least give them the opportunity to examine and reject this before getting too upset. Not that this excuses Microsoft for wasting all of our time (or worse) by filing it.
  • by 1010011010 ( 53039 ) on Saturday July 23, 2005 @09:33AM (#13143598) Homepage
    Microsoft (Ballmer specifically -- you know the CEO guy) has been threatening Linux with "over 200 patent violations".

    Why mention that at all, except if on the offensive?

  • by 1010011010 ( 53039 ) on Saturday July 23, 2005 @09:37AM (#13143620) Homepage
    yes it's a dumb patent, but is that MS's fault, or the patent office's?

  • by meburke ( 736645 ) on Saturday July 23, 2005 @09:46AM (#13143649)
    BAD thinking! There is no reason to establish rights over something unless you intend to exercise those rights. Even just the threat of enforcing those rights, legitimate or not, is an obstacle to competition or individual initiative, and in this case, it coerces people into MS-sanctioned behavior.

    In some countries, like Japan for instance, the loser in a lawsuit has to compensate the winner for their expenses and may be assessed a fine. Some judges here in the US require a bond be placed to protect parties from frivolous lawsuits. IMO, the next needed steps in patent reform are, first, fines for filing frivolous patents, and second, clearer criteria for what is and is not patentable. These criteria need to be so clearly written that even government employees can determine if a patent application has merit.

    A third reform step is to eliminate the limits on the time a patent can be challenged and overturned. For instance, if no one challenges a patent within two years, the patent holder can benefit from the de facto protection of the patent without recourse, until such time as that protection was determined to be erroneously granted and the patent overturned. My thinking is that a person erroneously granted patent rights should not be granted full patent protection just because someone didn't notice it within the challenge period. I wonder how many thousands of people are unproductively tied up spending anxious hours perusing published patent apps to protect themselves from trivial patent abuse.

    Which brings me to the fourth reform: Patent apps need to be screenable by computer. (I wonder who is going to get the patent on that!)
  • Re:Uhoh (Score:2, Insightful)

    by Xabraxas ( 654195 ) on Saturday July 23, 2005 @10:00AM (#13143704)
    You don't think that is generic? So now I can't make a png file that is 19x19 and use it as an emoticon?
  • by Cromac ( 610264 ) on Saturday July 23, 2005 @10:00AM (#13143705)
    I have to think that there will be challenges to this.

    I'm sure there will be many, probably thousands or tens of thousands, who will want to challenge it but who is going to pay for the challenge? As we know MS has more than enough cash to hire as many lawyers as it takes to defend their patents, it will take other lawyers ($$$) to challenge it.

  • Re:Prior art? (Score:2, Insightful)

    by rajafarian ( 49150 ) * on Saturday July 23, 2005 @10:33AM (#13143827)
    ... a creation of the Almighty?

    No, "the Almighty" is a creation of man.

    Ok, here's how I think it happened:
    Big guy got all the chicks because he could provide and defend them. Little guy invented "the Almighty" (and the idea of priests) so he could instill fear in the big guy and be able to get some chicks, too.

  • Re:Uhoh (Score:1, Insightful)

    by Anonymous Coward on Saturday July 23, 2005 @11:01AM (#13143948)
    A patent comprises of more than just the first claim, you idiot. Read the rest of it too.
  • Besides which, yes it's a dumb patent, but is that MS's fault, or the patent office's?

    Uh, MS took action, so yes it's their fault.

    When the WTC was hit, was it America's fault or the terrorist's fault?
  • by Anonymous Coward on Saturday July 23, 2005 @11:47AM (#13144145)
    Bollox! Microsoft secretly passed money into SCO to fight Linux. When M$ is afraid the court of public opinion will turn against them, they sneakily look for other ways to get their way. But they were wrong, and you are too.

    And there are *no* patent violations in Linux - that would have to be determined by a judge, which hasn't happened yet.
  • by rpdillon ( 715137 ) on Saturday July 23, 2005 @01:08PM (#13144535) Homepage
    Patent (and Copyright, for that matter) violations don't exist merely as artifacts of the law, like, for example, contempt of court.

    Patent violation is like robbery - it can happen regardless of whether or not a court has found that it happened. Sure, you can't say "legally" that the robbery occured, but you know it did. You don't have to wait for a judge to tell you that (but it isn't legally binding until he or she does).

    I am morally certain that there are patent violations in practically every piece of software out there today, and I'm sure Linux has its fair share. All you have to do is look at the patent minefield even small developers have to wade through to understand how much the patent system is bogging us down in software development.

    With that backdrop, all you have to do is add the piece about "selective enforcement" and it is easy to see why our system is deeply flawed. Essentially, there is a huge motive to patent everything in sight, to be used defensively, or offensively, which is a decision that can be made sometime in the future. Once you have the patents to use as weapons, you can then use them as bargaining chips, bullying some competitors and not others, at will. I think it would be very inteesting if companies were required to prosecute every violation of a patent issued to them. I think they would have to give a lot of thought to every patent they filed, both from a strategic perspective, as well as a resources perspective (who else does it hurt when I patent this? Are they my business partners? Do I have the legal and technical resources to hunt down every violator?)

    In the case of MS, I think they would be perfectly willing to take Linux vendors to court. The main problem is that they wouldn't be able to change a whole lot by doing that, because you can just torrent the downloads and host them in a data haven like Sea Land. Sure, Red Hat would get litigated into oblivion, but then there'd be the next guy. Everyone moves to Debian, or Gentoo, or SuSE, or Mandriva, or whatever.

    IBM saw the patent issue for what it is: a sword of Damocles over the head of open source software. So IBM responded by "donating" those patents to open source, i.e., promising not to sue if those patents were used in the Linux kernel (IIRC, not sure if it might have been other software as well).

    Anyway, the point is that patents ARE a threat to open source, and one of the worst things you can do is ignore them or dismiss them. We can't afford to wait for a judge to rule about the violations, there needs to be some other plan.
  • by Samari711 ( 521187 ) on Saturday July 23, 2005 @01:19PM (#13144578)
    IANAL and I don't know the inner workings of MSN messenger but if this is the method they've been using for years then this patent shouldn't be issued. If the patent office doesn't throw this one right out the door then it's more messed up than I previously imagined.

    from the USPTO [uspto.gov]:

    an invention cannot be patented if: *SNIP* "(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . . ."
  • by cvd6262 ( 180823 ) on Saturday July 23, 2005 @01:32PM (#13144636)
    Hey, nobody got the idea to patent smileys yet! And everything should be patented by SOMEBODY! I mean, we can't have any concept not OWNED by someone, can we?

    From The Little Prince, 1943, by Antoine de Saint-Exupéry (The Little Prince's conversation with a businessman who claimed to own the stars - emph. added):

    "How is it possible for one to own the stars?"

    "To whom do they belong?" the businessman retorted, peevishly.

    "I don't know. To nobody."

    "Then they belong to me, because I was the first person to think of it."

    "Is that all that is necessary?"

    "Certainly. When you find a diamond that belongs to nobody, it is yours. When you discover an island that belongs to nobody, it is yours. When you get an idea before any one else, you take out a patent on it: it is yours. So with me: I own the stars, because nobody else before me ever thought of owning them."


    And the little prince went away. "The grown-ups are certainly altogether extraordinary," he said simply, talking to himself as he continued on his journey.

    Full Text [spiritual.com.au]
    Wikipedia article [wikipedia.org]
  • Isn't it time (Score:3, Insightful)

    by zappepcs ( 820751 ) on Saturday July 23, 2005 @02:38PM (#13145003) Journal
    That we, as a community ( not just /., but the community of computer users worldwide) begin writing letters and emails to our elected representatives, and to the USPTO et al with regard to how we feel that such blantantly obvious things cannot and should not be patented. If the govt. doesn't understand this, perhaps 255,000 emails will explain it to them? Anything with enough prior art to establish that this is not an innovation, is not unique, nor is it unobvious may not be obvious to the USPTO. Does anyone know where we can write the USPTO to let them know?
  • by ratboy666 ( 104074 ) <`moc.liamtoh' `ta' `legiew_derf'> on Saturday July 23, 2005 @03:06PM (#13145141) Journal
    Well, golly, its nice Microsoft has this patent and all...

    But, again, they can't defend it.

    Vioations: any image 19x19 or otherwise, is converted to characters when being transferred by email. And, the character sequence representing an icon (avatar) has been with us since FACES graced our email. The fact that MS doesn't render FACES is... well, not relevant.

    The next step -- which is replacing a long sequence by a shorter sequence to be filled in by the receiver -- in a nutshell, that is gzip compression. And using pre-computed huffman tables has been with us forever as well.

    The LAST step -- which is to tie this all to "emoticons" used for IM. If you can send pictures via IM (which is NOT something being patented here)... the emoticon is simply an interpretation of the picture.

    Again, I am really happy for Microsoft for getting this patent, but don't sweat it -- they can't (and won't) defend it. May use it to threaten someone, though.

  • Patent (and Copyright, for that matter) violations don't exist merely as artifacts of the law


    Patents and copyrights themselves only exist as artifacts of law. The violation of such cannot be any more "real" than the thing itself.

    I agree with your general point, but likening patent violation to robbery, especially in the current ludicrous state of the patent system, is pure bollocks.

  • Re:Uhoh (Score:3, Insightful)

    by Frank T. Lofaro Jr. ( 142215 ) on Saturday July 23, 2005 @06:29PM (#13146172) Homepage
    You only need to implement what is described in any claim of a patent to be liable for infingement, you idiot. Read the law too.

It's fabulous! We haven't seen anything like it in the last half an hour! -- Macy's