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To read comments to this article, go here
Microsoft Files to Patent Emoticon Method
Sunday, July 24 2005 @ 02:08 PM EDT

Microsoft has filed for a patent on the smiley face. No. Really. Literally, they have applied for this: "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."

Stand back. Microsoft would like to be a monopoly forever and ever.

Here's the patent. I found this funny photograph on Flickr. I thought it would be creative to just have the headline with a url to the news story, "Microsoft Patents the Smiley Face" and then the photograph, huge, with no text at all beyond the one line about wanting to stay a monopoly forever. I thought you'd enjoy it, and it made me smile just thinking about it. It certainly says it all.

So I tried to reach the photographer to see if I could get permission since this one isn't under a Creative Commons license, but I can't seem to reach her, at least not in time for the article. So you'll have to settle for the fair use thumbnail. It's still funny, but of course, creatively it's not the same effect. I'll probably hear back from her eventually, and likely she'll say fine, but I can't hold the article for that, the very issue I wrote about on Friday on why an author might choose a Creative Commons license. Exhibit A.

So here you go. Lots of words instead.

You thought Amazon's one-click patent was silly -- obvious, noninnovative and silly. But Microsoft's patent on emoticons is not silly, obvious and noninnovative though it may be. The US Patent Office is allowing a form of human communication to be patented. Imagine if Europe had said yes to patents on software! See what happens when you open the gates to software patents? Where do you draw the line? The current line seems to be that if a computer is in any way involved, it's worthy of a patent. Hello, world.

Groklaw offered a suggestion already, and it would prevent patents like this one from being issued, while allowing hardware companies to protect their investments. Please take a look and note what would happen to this idiotic patent under such a system. That's right. It would not be allowed. That's because, as the superlative wordsmith Rupert Goodwins wrote, summarizing our suggested language, "You can only patent things that make physical changes in the world: these can contain software, but that software is not of itself patentable." I couldn't have said it better. And it would certainly have taken me more words. Because there is movement afoot to reform the US patent system -- and not a minute too soon, judging from this news about smiley face -- it seemed worthwhile reminding people that there is a suggestion on the table.

And because I love irony, I'll tell you to read FFII's discussion of this Microsoft-funded "study" of 50 "good" software patents.

: )

I guess I could have used a graphic smiley... but then would I have to pay somebody? A girl can't be too careful these days. Only joking. This isn't exactly what they patented. Even this study concluded that patents last too long, by the way.

And then, to clear your head, here is an interview in German with Donald Knuth, author of "The Art of Programming," on the subject of software patents. Here's one snip, as translated by FFII on their Donald Knuth and Software Patents page:

My personal opinion is that algorithms are like mathematics, i.e. inherently non-patentable. It worries me that most patents are about simple ideas that I would expect my students to develop them as part of their homework. Sometimes there are exceptions, e.g. something as refined as the inner point method of linear programming, where one can really talk about a significant discovery. Yet for me that is still mathematics.

I come from a mathematical culture where we don't charge money from people who use our theorems. There is the notion that mathematics is discovered rather than invented. If something was already there, how you patent it?

You'll enjoy reading an article by Ben Klemens in IEEE's Spectrum on the subject of patents, "Software Patents Don't Compute, which agrees with Knuth that no clear boundary between math and software exists. Patent law in the US struggles to find the line between patentable machines and unpatentable math, but it must fail, and here's why:
All software can be reduced to mathematical equations (using lambda calculus). . . .

The courts failed to review the mathematics literature and as a result made several vain attempts to reinvent the wheel. Software and lambda calculus are in the same equivalence class, which means any law that allows software to be patentable allows the patenting of the evaluation of certain mathematical expressions.

The only remedy, the article concludes, if we wish to encourage basic research and innovation, is to not allow software patents at all. He does propose a second-best suggestion:
But while demolishing the distinction between software and math, Turing and Church's work offers a natural division between patentable machinery and unpatentable mathematics -- exactly what we have been looking for. Let the devices that implement state machines -- physical objects such as computers -- be patentable, and the states to which they are set -- information such as programs and data -- remain unpatentable. The distinction meets the goal of ensuring that pure mathematics is not patentable while letting those who design faster and better computing devices patent their inventions.

The distinction is clear, and it offers no slippery slope down which the courts could slide.

As exhibits, the article lists some recently issued patents:
* Method and system for solving linear systems (U.S. Patent No. 6078938).
* Cosine algorithm for relatively small angles (No. 6434582).
* Method of efficient gradient computation (No. 5886908).
* Methods and systems for computing singular value decompositions of matrices and low rank approximations of matrices (No. 6807536).
These are all patents for purely mathematical algorithms, the article points out. How did that happen? Under US law, you can't patent scientific principles. You can't get a patent on gravity, for example, or on the theory of relativity, innovative and nonobvious though it surely was. The patent office did exist at the time of the latter discovery, but until recently, everyone held to the idea that "mathematical algorithms were in the category of scientific principles that could not be owned by an individual," as the article explains. So what changed, beginning in the 1990s?
What has changed is that mathematics has become increasingly reliant on machines. Abstract algorithms that involve inverting large matrices or calculating hundreds of coefficients in a sequence are routine today and of only limited use without physical computers to execute them.

Conversely, devices such as video drivers, network interface cards, and robot arms depend on algorithms for their operation. Because of the machine-intensiveness of modern mathematics and the math-intensiveness of modern machines, the line between mathematical algorithms and machinery is increasingly blurred. This blurring is a problem, because without a clear line delimiting what is patentable and what is not, creative entrepreneurs will eventually be able to claim sole ownership of abstract mathematical discoveries.

The article analyzes some US court rulings that struggled with the problem of where to draw the line, until we reached "the bottom of the slippery slope: there is no longer any meaningful barrier to the patenting of abstract algorithms. The use of any inventive mathematical algorithm that requires more calculation than can be reasonably done by hand is now patentable." Yes. Patenting the smiley face is the bottom of the slippery slope. Surely, it can only be up from here. So where is the line drawn between software and mathematical expression?
Based on Church's and Turing's work, there is none. Any legal attempt to force a wedge between pure math and software will fail because the two are one and the same. A patent on a program is a patent on a mathematical expression, regardless of whether it is expressed in C, Lisp, or lambda calculus.
As interesting as these snips are, you'll find the whole article even better, and I do recommend you take a look. This article is the first of a two-part series on this subject.

There is a second article, and you don't need a subscription to read it, The Nanotech Patent Trap (page 18) that discusses some patent problems with nanotech, an exciting technology that I'm told could change electronics in a similar way to when the transistor replaced the vacuum tube. This is a big deal, and a lot of companies are pouring research money into it. The problem is that lots of patents have been granted in overlapping areas, the article says. The companies involved filed various patents at multiple times. The only "safe" way to use nanotech right now is to get a license from every company involved. Even if you had enough money, this would be a daunting task. This is one example of how patents hinder technology development, rather than help it.

Guys, this is getting silly.


The pugilistic pig is a photograph by Alberta Fifty, who makes it public in her collection on Flickr. I love her work.

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