From The Register:

Cingular, the United States’ largest mobile phone network this week applied to patent emoticons, better known as smileys.

The application refers to selecting emoticons on mobile phones or handheld devices over a wireless, and makes 35 claims in all. Although it uses the word ’emoticon’, the application doesn’t acknowledge that mutant punctuation has been livening up online communications since at least 1961.

Actually, The Register is overstating the case. (I’ll give you a moment to recover from your shock… there we go.) Cingular’s application is for the idea of having a button on your phone that can be used to insert a smiley. Here’s the passage from their patent application:

A user of a device, such as a mobile phone, is provided with a dedicated key or shared dedicated key option that the user may select to insert an emoticon onto a display or other medium. The selection of the key or shared dedicated key may result in the insertion of the emoticon, or may also result in the display of a collection of emoticons that the user may then select from using, for example, a key mapping or navigation technique.

Now, as to whether dedicating a button on your phone’s keypad to a particular function is such a revolutionary idea that it deserves patent protection… that’s another issue. But at least for now, the smiley is safe.

More’s the pity.