The story of boy meets girl, boy falls in love with girl, boy and girl kiss, and boy and girl live happily ever after is the subject of many a Harlequin Romance. As a leading publisher of romance novels, Harlequin Enterprises Limited publishes over 110 titles a month.1 They have registered the trade-mark HARLEQUIN IS ROMANCE and, most recently, filed a patent application2 for a method of “The Essential Romantic Kiss.”
Their latest “literary” disclosure promises to send sparks flying in patent circles. Not your average electrical patent application, Harlequin’s application to patent the kiss – or at least, the method of producing it, is an intellectual property foothold in the business of romance. Within a year of filing their provisional patent application in the United States they may well pursue registration of patents in both Canada and the United States. Filing first in the United States to secure rights across North America is a path commonly tread by Canadian inventors.
As indicated in the abstract of the application3, The Essential Romantic Kiss (“The Kiss”) is a “method by which two people can reciprocate their romantic feelings towards one another in a manner that deepens attachment, provides pleasure and promotes physical and emotional well-being. This method improves with repetition, can be performed at virtually any time and, if registered by the US Patent Office, will be freely available to all persons everywhere in the interests of enhancing romantic love and generally making the world a better place.”
Not your average electrical patent application, Harlequin’s application to patent the kiss – or at least, the method of producing it, is an intellectual property foothold in the business of romance.
The method is comprised of the following steps:
Step 1 (“The Prelude”), the kissers deploy the muscle around the mouth (the orbicularis oris, or “kissing muscle”) to shape their lips in a manner conducive to kissing (i.e. to “pucker the lips”, or “pucker up”); Step 2 (“The Approach”), they bring their faces into close proximity and tilt their head in opposite directions; Step 3 (“The Seal”), the lips touch with varying degrees of pressure and intensity. The lips remain attached for an indeterminate period of time.
The method may further comprise:
Step 4 (“The Embrace”) for those kissers who are caught up in the passion of the moment and thus feel compelled to go beyond Steps 1, 2 and 3. It involves deploying additional body parts, such as hands or arms, on the neck, shoulders or back of the other kisser, thereby drawing them into an interlocked position.
Drawings depict each of the 4 steps, all in accordance with public order.
On their website patentyourkiss.com, Harlequin explains that they are trying to patent the kiss “to ensure it’s around for future generations to enjoy.” They continue, “We’re officially preserving The Essential Romantic Kiss for all persons, everywhere, to promote the art of kissing, and help romance flourish.” This doesn’t sound like the stuff of monopoly. It does, however, sound like a bargaindisclosure to the public of how to reproduce the invention in return for an issued patent.
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One wonders how the invention will be classified for examination in the patent office. Will sparks fly, such that the “electrical” arts are in play? Is there value to a “mechanical” kiss? Must there be “chemistry” to establish “utility”? What should patents protect anyway? Those at the Patent Office who resist expansion of subject matter may herald a return to the traditional definition of “technology,” fearing enforcement by “trolls” seeking an end to romance by prowling for enormous damage awards asserting infringement under s. 55(2) of the Patent Act.4 Patents for romance may well be seen as a cloud hovering over freedom to innovate, a trap for the unwary, and in this context, simply unenforceable.
If successful, this patent could have a huge impact on the entertainment field – in regards to methods of kissing and other actions in movies, theatre and books, this patent application presents a whole new way to prevent counterfeits and unauthorized use of creative properties.
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The proper scope of patentability continues to intensify the debate on all sides of the protection spectrum in multiple jurisdictions, particularly for business methods. The latest focus of attention has been on business method patents and how they are neither pure art nor true science, and while it is unclear as to the classification of Harlequin’s patent application, it highlights the same issues.
Mr. Justice Phelan of the Federal Court of Canada addressed the business methods patent issue in the context of online shopping, in Amazon.com, Inc. v. Canada (Attorney General).5 His decision, released on October 14, 2010, reflects close consideration of the wording of the statute. His finding that barriers to patentability were unnecessarily imposed by the Commissioner of Patents without being grounded within the Canadian Patent Act and Rules is being appealed.
And how would the Commissioner of Patents in Canada approach patentability of a method of kissing? By applying the three basic criteria for patentability: The invention must show novelty, it must show utility, and it must show inventive ingenuity. Well, the “invention” has been used and known by others for years, and the patent application refers to prior art, attributing the first kisses to ancient Greece. This throws some doubt on novelty of the method. Although Harlequin may be an expert in all things kissing-related, it did not invent the kiss. Michelle Renaud, Senior Public Relations Manager at Harlequin Enterprises, is claiming to be the inventor, but even she admits that there is nothing new about the kiss itself that Harlequin is trying to patent. With its novelty tending to the point of cliché, and its utility debatable, one wonders whether the Patent Office is ready for this stuff of romance.