Microsoft Frowned at for Smiley Patent

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.'"

Comments

Uhoh

[Drathus]

I can see it now:

=( (r)

* Disclaimer: "=(" is a registered Trademark of Microsoft Corporation of Redmond, WA. Used without permission.

(Please don't sue)

Re:Uhoh

[some guy I know]

The patent in question isn't quite as general as you may believe.

Claim 1:

A method, comprising: selecting pixels to be used as an emoticon; assigning a character sequence to the pixels; and transmitting the character sequence to a destination to allow for reconstruction of the pixels at the destination.

This could cover the following sequence:

1. An app displays the emoticon on the source CRT.
   This requires the source app/OS to "select pixels" from a font in order to display the emoticon.
2. The app copies the emoticon to the output buffer, which is "assigning a character sequence to the pixels".
   (It happens that this is the same sequence that the user originally entered, but the patent does not disclaim this).
3. The app/OS sends the emoticon to the destination machine.

"The app" in this case can be any email client, a browser with a text box, etc.

Another example is an email client that sends a picture of an emoticon using uuencode or base64.

I think that this patent covers more than I think that you think that it does.

Re:Uhoh

[cortana]

Please explain how implementing the same method for selecting a smiley deprives the method's "owner" of its use?

Re:Uhoh

[dourk]

I think Despair, Inc. got there first.

Re:Uhoh

[fr0dicus]

I think he's kissing someone whilst wearing opera glasses.

Re:Uhoh

[Frank T. Lofaro Jr.]

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.

immature community members?

[aendeuryu]

'I would have expected to see something like this suggested by one of our more immature community members as a joke on Slashdot,'

I don't know. These days it seems like the editors don't comment as much as they used to...

[rimshot]

All I have to say...

[Anonymous Writer]

about this is :P

Re:All I have to say...

[Alsee]

No no.... you didn't properly violate the patent. You need:
A method, comprising: selecting pixels to be used as an emoticon; assigning a character sequence to the pixels; and transmitting the character sequence to a destination to allow for reconstruction of the pixels at the destination.

Note that if you happen to use a 19x19 group of pixels it not only violates the primary patent but claims 2 and 3 as well (and maybe others). I will select a 19x19 emoticon and a 2 character sequence and I will transmit it to you through this post such that it can be recontructed at the destination:

M$

-

They want for us to hate them, it must be

[1010011010]

Microsoft must actually want for us to hate them. Protected video path, lies and litigation about Linux, patenting fucking smilies.

Stop it, Bill!

Re:They want for us to hate them, it must be

[someonewhois]

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.

Re:They want for us to hate them, it must be

[Tim C]

Indeed. IBM registers a couple of thousand of patents each year, and in the (relatively distant) past has been just as evil as MS is percieved to be today. MS, on the other hand, has not (to my knowledge) used a single patent offensively.

Besides which, yes it's a dumb patent, but is that MS's fault, or the patent office's? If I ask you for a thousand dollars and you give it to me, thus ending up unable to pay bills, isn't that your fault for being stupid enough to do it?

Re:They want for us to hate them, it must be

[1010011010]

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?

Re:They want for us to hate them, it must be

[1010011010]

yes it's a dumb patent, but is that MS's fault, or the patent office's?

Both.

Re:They want for us to hate them, it must be

[meburke]

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:They want for us to hate them, it must be

[Flyboy Connor]

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.

No, people just don't like a company -- any company -- get a patent on something which (a) the company did not invent, (b) already existed more than a decade ago, (c) is really really obvious, (d) is in common use by nearly every computer user today.

It's like Microsoft said: "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? So let's see if the patent office is stupid enough to grant us exclusive rights to something that is currently in the public domain! We can see what we do with such a patent later."

Re:They want for us to hate them, it must be

[tolkienfan]

1. If it's likely to make money for Microsoft, they'll sue. The only reason they won't sue it if it would probably fail in the courtroom.
2. What this does mean is that someone wishing to create an instant messenger with custom smilies is in for trouble. No lawyer is going to advise possible infringement.
3. So with this Microsoft may be differentiating their products, making it impossible for other products to have the same feature.
4. Worse, there is no legal requirements (IIRC) on licensing. In other words, although the patent system was instigates to promote publishing ideas in such a way that more companies implemented them, there is no requirement for the patent holder to actually allow it (with or without a fee).
5. Is it MS's fault or the patent office's?
Abusing a broken system is immoral and unethical. Microsoft have shown themselves to be both, which is why I will never buy or recommend their products.

Re:They want for us to hate them, it must be

[techwolf]

The First Smiley :-)
http://slashdot.org/article.pl?sid=02/09/12/213321 6

Re:They want for us to hate them, it must be

[greg_barton]

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?

Re:They want for us to hate them, it must be

[ThisIsForReal]

Here's something that just popped into my head:

What about capping the number of patents a single company can own? What if, in order to gain a new patent, one must release an old patent into public domain?

It wouldn't be too much different than our current use of the judicial branch to regulate monopolies. Any thoughts?

Re:They want for us to hate them, it must be

[SnowZero]

And shopkeepers pay the mafia protection money "so that no trouble should happen to come upon their store". But that's fine, because at no point was the shopkeeper ever directly threatened.

In the real world, people do connect the dots and interpret an indirect threat.

Re:They want for us to hate them, it must be

[Locutus]

1. If it's likely to make money for Microsoft, they'll sue. The only reason they won't sue it if it would probably fail in the courtroom.

Microsoft already makes tons of money off the Windows monopoly and that is what all of their actions are about. Since the early 1990's, Microsoft is more worried about protecting their monopoly than expanding in other areas. Expansion is secondary IMO. They spend a couple of $billion per year on losing markets outside the desktop/server but THAT is more about keeping budding technologies/companies from getting too much power and marketshare in the PC periphery sectors. Look at their recent earnings report. ~30% from MS Windows, ~30% from MS Office for Windows, ~20% from MS Windows Server/software, and until last year, EVERYTHING else was losing hundreds of millions each year. MSN advertising brought MSN into the black finally( popup ads maybe? ). Also, failing in the courtroom is not a big concern for MSFT since they'll be using much of this stuff as threats. It only has to LOOK like it has teeth in order to work as they intend it to. With $40 Billion in CASH, they can sue til the cows some home and not make a dent in that cash horde.

IMO, the current IP patent land grab is about protecting the Windows monopoly and very little about making money from new sectors or business markets. Never have I seen Microsoft support a none-Windows based product having over 50% marketshare. Even when Palm had 80% marketshare, every dbase vendor had a PalmOS based micro-dbase except MSFT. They came out with MS Access for WindowsCE when that only had 5% marketshare. The key to understanding Microsofts actions is to know their motivations and that is protecting the Windows monopoly. THAT is their business.

Everything else you wrote is right on target.

LoB

Re:They want for us to hate them, it must be

[rpdillon]

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.

Re:They want for us to hate them, it must be

[cvd6262]

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
Wikipedia article

Re:They want for us to hate them, it must be

[thue]

MS, on the other hand, has not (to my knowledge) used a single patent offensively.

Here you go: Microsoft patents ASF media file format, stops reverse engineering.

Microsoft is also demanding that people buy licenses to use their FAT file system: Wikipedia article

Re:They want for us to hate them, it must be

[MrResistor]

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

Bullshit.

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:They want for us to hate them, it must be

[Minna Kirai]

The horrible thing is, MS has to do this so *company name* won't come along in 6 months and do it to them.

Wrong. You evidently don't know what a "defensive patent" actually is. To prevent another company from doing the same thing, they need merely to post the patent text in some public place- there's no need to actually officially file it. Once a concept has been published, it is unpatentable by others.

So-called "defensive patents" are actually retaliatory patents, which can be used to threaten someone who threatens you with an unrelated patent, creating a standoff.

they want to patent emoticons, eh?

[v_1_r_u_5]

Well, they can kiss my ( | ).

Re:they want to patent emoticons, eh?

[kahanamoku]

if they patent those, people will be (_O_) for being such a (_._) not paying for it use!

Patent THIS!

[rylin]

.,|,, -_- ,,|,.

Lameness filter encountered. Post aborted!
Reason: Your comment looks too much like ascii art.

while you were all posting, i patented these :)

[mediumcool]

!-( Black eye !-) Proud of black eye #-) Wiped out, partied all night #:-o Shocked $-) Won the lottery, or money on the brain %(|:-) Propeller-head %*} Inebriated %+{ Got beat up %-( Confused %-) Dazed or silly %-6 Brain-dead %-\ Hung over %-{ Ironic %-| Worked all night %-} Humorous or ironic %\ Hangover >>:-- Female >-> Winking devil >--) Devilish wink >:) Little devil >:-> Very mischievous devil >:-:-:-( Annoyed >:-) Mischievous devil >=^ P Yuck Devilish expression Devilish expression .. ) alienated (( )):** Hugs and kisses ((())) Lots of hugging (initials or a name can be put in the middle of the one being hugged) () Hugging (-: Left-handed smile, or smiley from the southern hemisphere (:& Angry (:- Unsmiley (:-& Angry (:-( Unsmiley (:-) Smiley variation (:-* Kiss (:-\ Very sad (::()::) Bandaid, meaning comfort (:| Egghead * Kiss *--->--- A dozen roses 2B|^2B To be or not to be 5:-) Elvis 7:) Ronald Reagan 7:^) Ronald Reagan 8 Infinity 8 :-) Wizard 8) Wide-eyed, or wearing glasses 8-# Death 8-) Wide-eyed, or wearing glasses 8-o Shocked 8-O Astonished 8-P Yuck! 8-[ Frayed nerves; overwrought 8-] Wow! 8-| Wide-eyed surprise : ( Sad : ) Smile : [ Bored, sad : | Bored, sad :( ) Loudmouth, talks all the time; or shouting :* Kiss :*) Clowning :**: Returning kiss :+( Got punched in the nose :,( Crying :- Male :-# My lips are sealed; or someone wearing braces :-& Tongue-tied :-> Smile of happiness or sarcasm :-> Puckered up to kiss :- Very sad :-( Frown :-) Classic smiley :-* Kiss :-, Smirk :-/ Wry face :-6 Exhausted :-9 Licking lips :-? Licking lips, or tongue in cheek :-@ Screaming :-C Astonished :-c Very unhappy :-D Laughing :-d~ Heavy smoker :-e Disappointed :-f Sticking out tongue :-I Pondering, or impartial :-i Wry smile or half-smile :-J Tongue in cheek :-j One-sided smile :-k Puzzlement :-l One-sided smile :-M Speak no evil :-O Open-mouthed, surprised :-o Surprised look, or yawn

Re:while you were all posting, i patented these :)

[Markus Landgren]

You forgot one: XP

Or did Microsoft beat you to it?

Re:Prior ASCII Art???

[rylin]

I dunno.. I always think of the 8 as being boobs.

;)>8-<
;)>-`<

Re:Oops :(

[ggvaidya]

But the frowny is already a trademark!

(p.s. that is one awesome website. the posters are bloody hilarious :)

Goatse version

[Anonymous Coward]

(=O=)

Being a lwayer

[tsa]

Lawyers live in an alien world. They make a great fuss about many things `normal' people (as far as they exist) will never even think about, let alone worry about, and they get paid enormous amounts of money for it too. They must be even more `out of this world' than your regular scientist.

It's a patent application, not a patent

[phage434]

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.

Unusually specific, but still dangerous

[Anonymous Coward]

That patent is actually very specific. It covers exactly the way MSN Messenger (both the protocol and the client) work, and nothing more. It doesn't try to patent the concept, but a specific implementation of it. For example, if you use a 20x20 pixel image instead of 19x19 pixels, or transmit the image as something other than a PNG, or store them somewhere other than a web browser's disk cache, it doesn't apply.

It's still quite dangerous though. I don't think that any other IM client that implements MSN's custom emoticons would infringe it, because none of them use a web browser cache to store images. Every other claim is pretty much required to interoperate with Microsoft's client. So if you implemented a full MSN client as an extension to Firefox, for example, it almost certainly would infringe on this patent. Or if your operating system had some unified cache for storing any downloaded content that is used by both the web browser and IM client.

I certainly wouldn't consider it patentable. It's hardly complex, innovative, or non-obvious.

A good indicator is that the patent application probably took them far longer to write than it took to design and implement the thing in software.

Re:Unusually specific, but still dangerous

[Samari711]

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:

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 . . ."

It's not that simple.

[ExtraT]

Have you people read the actual patent description? It doesn't talk about patenting smileys, but only the method of creating custom smileys and addigning bitmaps to them. Basically, they are trying to patent a universal bitmap smiley distribution protocol.

It's not ASCII :-) it's the image version

[DrSkwid]

All the other posters in the thread seem not to have read the application :

"Methods and devices for creating and transferring custom emoticons allow a user to adopt an arbitrary image as an emoticon, which can then be represented by a character sequence in real-time communication. In one implementation, custom emoticons can be included in a message and transmitted to a receiver in the message. In another implementation, character sequences representing the custom emoticons can be transmitted in the message instead of the custom emoticons in order to preserve performance of text messaging. At the receiving end, the character sequences are replaced by their corresponding custom emoticons, which can be retrieved locally if they have been previously received, or can be retrieved from the sender in a separate communication from the text message if they have not been previously received."

The patent is not for smilies.

It is for having both ends having pre-set images displayed for certain character sequences in text mesages, be they :-) or pwn3df46607

See?

[Rick Zeman]

Microsoft DOES innovate! No one thought of patenting smilies before them!

2 things:

[dreemernj]

1. Does this mean that users of the ASCII smiley will retroactively owe M$ a chunk of their soul? 2. Doesn't the creator of the 'Have a Nice Day' smiley have anything to say about this? I mean he invented the business of making money off of smileys...Unless he has already been hired by M$. Hmmmm, that could be. If they went after the pet rock inventor next it could be a problem. MS logos on pavers and skipping stones. Hmmm.

Prior Art: ligatures

[cait56]

Typesetting already has well established prior art of having a special optimized representation for a sequence of characters.

It's called a ligature. "To" is an example of a sequence that is frequently optimized with an alternate image (that moves the 'o' closer to the 'T').

Re:Prior ASCII Art???

[pair-a-noyd]

No, there are boobs.. (.)(.) for knee knockers
then you have (*)(*) for pert, firm pointers
or you have (o)(o) and if you like them bigger, (O)(O)
and of course there's (0)(0) or if you frequent tiddy bars these might look familiar ($)($)
( O )( O ) and if you like them extra large..

Re:What came first: Emoticons or Microsoft?

[Cromac]

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 ASCII Art???

[pair-a-noyd]

( o | o ) Oh yeah, I almost forgot, CLEAVAGE!!

Custom Smiley

[slashflood]

:-d

Look, I can lick my nose!

WRONG WRONG WRONG WRONG WRONG!

[mrRay720]

Learn to read, people!

"OMG M$ have patented teh smilies!!!!1" - wrong

The patent APPLICATION is for encoding and transfer of CUSTOM smilies. ie an arbiary image or animation on one computer being transferred to another one automatically in a seamless manner via encoing, transmisson, reconstruction.

Not to say that this application is good - it's not. Just that 99% of people here have it so wrong that it's laughable.

From TFA:
""Thursday, covers selecting pixels to create an emoticon image, assigning a character sequence to these pixels and reconstructing the emoticon after transmission.""

*Note the key words such as CREATE and RECONSTRUCTING.

*Note the lack of the words "changing :) into a picture"

Re:Prior ASCII Art???

[wowbagger]

You still missed a few:

(Q)(Q) - pasties/pierced

(@)(@) - clipped

(+)(+) - erect

(0)(0)(0) - Eccentrica Gallumbits

Re:Prior art?

[PhrostyMcByte]

I, for one, welcome our new smiley overlords. (prior art?)

Re:Prior art?

[rajafarian]

... 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.

I had a dream last night

[Maluvia]

In it, the Almighty spoke to me and said:

"This is God, and I have already patented every thought you have ever thought, or ever will think
- and I've got one hell of a lawyer!"

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:And my opinion is...

[Anonymous Coward]

I saw where Microsoft has patented their new emoticon for their Linux strategy.

o
|\__o
/\/\ /\

Bastards.

Re:Prior art?

[Urchlay]

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.

Big guy retaliates by enforcing celibacy on little guys who become priests, so they can't get any chicks?

Isn't it time

[zappepcs]

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?

ANOTHER Patent MS can't defend

[ratboy666]

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.

Ratboy

Reply from microsoft

[RedLaggedTeut]

Microsoft Frowned at for Smiley Patent

Now you frown, till we patent that

Re:Uhoh answer

[Alsee]

If you infringe claim 1 then you infringe the patent. Claims 2, 3, etc... are effectively additional and separate patents.

The reason patents are often written this way with insanely broad initial claims and then later more restricted claims is (1) they want the patent to cover as much as possible, and (2) the additional claims are there as fall back positions incase the first claim is later struck down for prior art or as nonobvious.

So Microsoft was in fact granted a patent on:
A method, comprising: selecting pixels to be used as an emoticon; assigning a character sequence to the pixels; and transmitting the character sequence to a destination to allow for reconstruction of the pixels at the destination.

-