2048 and Marketing

Two things struck me about the latest game-nerd darling, 2048: the number of friends who have independently recommended it to me, and how quickly I got bored of it. Eventually I figured out why there's such a disparity in my reaction to the game and everyone else's, and I'll focus on that here because I think it's interesting. In a separate post I plan to talk about some of my own favorite mobile games of the last year.

First, to clear the air - 2048 is a good game. I like puzzles, I like simplicity, and I like numbers. I like the smooth and intuitive mechanics. I like the fact that the game has a set endpoint - a goal established from the beginning. Given all of this, I was surprised by the fact that the game only appealed to me for about 20-30 minutes before I got tired of it.

The reason 2048 failed to hold my interest is simply that I've played this game before, and I'm not talking about the fact that the game is a clone several times over. That's its own entire topic. I didn't play 1024 or Threes, but I have played the same category of puzzle game, starting with Triple Town a few years ago, and manifesting in other games like Puzzle Forge. You see, the big secret of 2048 is that at its heart, the game is not about numbers - it's about spatial planning. The novice player will focus on matches they see and try to build up mid-size numbers only to discover that these midsize numbers are too far apart to be effectively combined, and they quickly run out of space. In order to get the largest numbers, you need to plan ahead and make sure that your mid-sized numbers end up next to each other, so that you can combine them into the really big numbers.

With this kind of puzzle, the number theme is unnecessary. The key is that you have like tokens that combine into bigger (higher-value) tokens, and those bigger like tokens can combine, but only with each other, requiring exponentially more space to build each new token up the hierarchy. The size of the board then determines how far up this totem pole combination will become difficult for players, as the amount of space required for all the components of a big token outstrips the playing area. In Triple Town these tokens were bushes, that combined into trees and then into houses of various sizes, ultimately leading to a floating castle. In Puzzle Forge you combined metals into higher and higher quality smithing materials, and then could cash in your big tokens to produce items and sell them. You could just as easily have the tokens be single-celled organisms building into animals up an evolutionary chain, or coins combining into larger units of currency. The only requirement is that there is a clear sense of hierarchy, and that the game gives you limited space to work within.

So what makes this iteration of the spatial-planning puzzle game so much more popular than its predecessors? The answer is the marketing and virality. I don't mean that they spent a bunch of money on ads, but that design decisions, and specifically the decision to represent its tokens as powers of 2, enable the game to appeal to new audiences and be more sharable than its predecessors. Even though the game, according to me, isn't about numbers, the decision to theme it on numbers is brilliant for a few reasons.

First, the numbers make the hierarchy of tokens instantly intuitive, rather than requiring the player to learn that bushes make trees which make houses (which is totally arbitrary). This, combined with the simplicity of the confounding agent (the fact that new numbers appear randomly, rather than being placed, which serves the same chaos-inducing role that ninja bears did in Triple Town), means that the game's learning curve is so shallow that it needs no tutorial. You can literally hand your phone to a friend and just say "check out this game" and they will fairly quickly figure out how it is played (in fact, this is how the game was first introduced to me).

Second, the numbers theme makes the game extra appealing to math and science nerds, especially since powers of 2 are evocative of computer science (bits and bytes and all that jazz). The theme not only vindicates nerds, it gives the game an air of being pseudo-educational or at least more intellectual than a game that is visually about trees and ninja bears. The nerd appeal is particularly evidenced by an xkcd comic on the game (random side note: when plugging in that link I half-expected the comic's serial number in the url to itself be a good 2048 combination).

Third, and perhaps least importantly, the use of a number for the title of the game makes it appear at or near the top of an alphabetized list. This doesn't matter too much for people playing the flash game on their browser, but if you download the game on an Android device, you may notice that it will be the first item to appear when you press that "apps" button. Moreover, the title is a good one because it is easy to remember and communicates the game's goal.

Of course, much of the game's success is a matter of sheer luck (especially since it is a clone of other games that came out a month earlier to less fanfare), but luck only allows a game to get noticed - in order to sink in, it also needs the qualities that make it viral, and the difference in reception between Triple Town and 2048 is, in my mind, something to take note of. It is fair to reply to this entire post by noting differences in basic game mechanics between the two games, and there is an argument to be made that swiping the board is simply a more interesting mechanic than placing tokens. However, as someone who played Triple Town fairly thoroughly, I recognized the same area of my brain activated when planning in 2048. They are most certainly kindred spirits.

Can Companies Patent Human Genes?

Sometimes I write tech policy articles. This one is reposted from the Rutgers Institute for Information Policy and Law.

Can Companies Patent Human Genes? A Myriad of Problems with the Court's Answer

Last June was a busy time for the Supreme Court, and amidst a flurry of important decisions, it was easy to let opinions slide through the news cycle without a careful analysis. So when the Supreme Court announced its decision in Association for Molecular Pathology v. Myriad Genetics (Myriad), unequivocal victory was declared for the public interest. The New York Times headline read “Justices, 9-0, Bar Patenting Human Genes” and the ACLU's blog nearly shouted, “VICTORY! Supreme Court Decides: Our Genes Belong to Us, Not Companies.”

One month later, Myriad, the same company that had lost its case before the Court, filed patent infringement suits against two smaller companies concerning the same genes that were the subject of the June decision. How is that possible? A closer reading of Myriad reveals a problematic opinion that simply fails to address the core issues at stake in the gene patent debate.

The Decision

What was this case about? Myriad Genetics owned patents on “isolated DNA molecule[s]”, including BRCA1 and BRCA2, which can indicate a predisposition to breast cancer. The company then built its business on offering an exclusive test on the isolated gene, and suing anyone else who attempted to offer breast cancer screenings based on the same gene. This resulted in both a heightened price for clinical tests, and a potential roadblock for other researchers, leading the Association for Molecular Pathology, several universities, and several patient advocacy groups to go to court in order to have the Myriad patents invalidated.

The case made its way up to the Supreme Court, which rendered a unanimous decision on June 13^th, 2013. The Court invalidated Myriad's patents on isolated genes, on the basis of the fact that a DNA sequence found in humans “is a product of nature and not patent eligible merely because it has been isolated.” However, there was a second variety of patent at issue in the case – patents on complementary DNA, or cDNA. A cDNA molecule is made by copying all of the protein-coding portions of a particular gene, and thus contains the same code as the naturally occurring gene, except that excess non-coding segments (called introns) have been removed. The Court held that cDNA, since it was prepared in a laboratory, could be patented.

This distinction drawn between cDNA and naturally-occuring DNA, or gDNA, is at the heart of the logic of the Court's opinion. What the opinion notably does not rest on is the competing interests of those who invest in patents and the public at large.

The Public Interest

There is a great deal of popular interest in the question of patentability of human genes. Patents on genes can make not only tests, but potential treatment options for many patients expensive or simply unavailable, while independent researchers may run into roadblocks in trying to progress knowledge because making any use of a patented molecule is an infringement of a patent owner's intellectual property rights. On a more basic emotional level, however, many individuals simply feel that it is wrong for a private company to “own” a DNA sequence that naturally occurs in human bodies.

At first glance, the Court's decision does seem like a victory for the public interest because it declares naturally occuring genes ineligible for patent protection. However, isolating a gene is only the first step in most clinical or research applications of gDNA, and the second step in many of these applications is to create a copy of the exons – cDNA. As a result, many important avenues of research that involve an isolated gene sequence are still blocked by cDNA patents. Even the narrow situation presented in the Myriad case, diagnostic tests of BRCA1/2 to assess a woman's risk of breast cancer, expose clinicians to potential lawsuits because of the surviving cDNA patents .

This is particularly troubling because as with gDNA, a company that patents a cDNA sequence does not invent the genetic sequence, which leads one to ask – what is the patent office incentivizing by granting such patents? The patentee does not have to discover a new specific new use for the cDNA sequence, nor a new method of creating it. The patent for a sequence can theoretically go to the first company that happens to produce cDNA in a lab even if the gene in question is already understood, and the patent, once granted, prevents any and all use of that genetic sequence in cDNA.

One response is to point out that the Supreme Court only ruled on subject matter eligibility – a patent on cDNA can still be denied by the USPTO for other reasons, namely lack of utility or obviousness. The utility requirement does place some barrier in the way of a research firm patenting huge swathes of DNA without rhyme or reason, but it is a small barrier, because the existence of any single known use for a particular gene allows a patent holder to monopolize all future uses, known and unknown (including uses that will be left undiscovered because of the effect the patent has on research).

The obviousness criterion could potentially be a very important tool for filtering out inappropriate patents, because the process of creating cDNA is “well understood,” to use the Court's language, and it should be a obvious step to anyone studying a particular gene. However, technically the patent act only invalidates a patent if it obvious relative to other patents or published discoveries and inventions (called “prior art,” see 35 USC 103). Even though human genes are “naturally occurring,” an invention based upon them is not obvious unless that gene has been described in a patent or publication, and since the Supreme Court just invalidated patents on isolated genes, it is now even less likely that any such publication will preempt future applications for patents on cDNA (though there are other ways to find a patent application on a gene obvious – see In re Kubin). In short, the patentability of cDNA provides research firms powerful patent tools nearly as extensive as they would have had if the Supreme Court came out differently in Myriad.

Patent Applicants

So if the above is all correct, should patent applicants be happy about the Myriad opinion? The answer is still no, because the Court's logic is far more broad than it admits. The distinction the Court relies upon, between substances that are “naturally occuring” and those that are not, buries a century-old line of cases that defined when “extracts” or “purified” forms of naturally-occurring substances can be patent-eligible, starting with Learned Hand's 1911 decision granting a patent on extracted adrenaline. Although the Court claimed that it's holding was limited to isolated genes, it's emphasis on “naturally-occurring” substances, if taken seriously, could entirely eliminate discovered compositions from patentability (in spite of the language of 35 USC 101, which provides that patents can be given to “anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter”).

The question of policy again rears its head. If the purpose of patent law is to incentivize new inventions and discoveries, then why does it matter that a discovered substance is naturally occurring if it has never been available to public previously? Perfectly good answers could be given to this question – perhaps the protection available from patents on particular uses of discovered substances are sufficient to incentivize discovery without unduly restricting public access to the substance. The Court, however, fails to even raise that question, and provides no reason to believe that the line between “naturally occurring” and artificial compositions is the line that actually promotes the most good.

The Point: Balance of Interests

The point is that the Court's opinion in Myriad attempts to address an important issue by reference to an irrelevant distinction. Even if the outcome – providing broader access to testing for breast cancer – seems good, in practice the Court has left the plaintiffs in nearly the same situation they were in before, and potentially confused the debate about the proper scope of eligibility for patents on genes by focusing on the wrong issues. The confusion surrounding the decision is made even more clear by Scalia's concurrence, in which he joins the entire opinion except “portions...going into fine details of molecular biology.” By his own admission, he doesn't understand the science well enough to have a valid opinion on the matter.
What we need is an opinion that actually wrestles with the core issue in debate – the balance between the need to incentivize research and the need to protect the public's access to their own genetic information. This is far from the last we'll hear on the issue.