An article available at SSRN, Patent Metrics: The Mismeasure of Innovation in the Biotech Patent Debate pours scorn on the idea "well accepted among many legal scholars" that biotechnology patenting has reached unsustainable levels. The authors claim to have engaged in the "first comprehensive empirical study of biotechnology patents" and found a "surprisingly diffuse pattern of patent ownership." From the abstract:
"This Article finds little evidence that the rise in biotechnology patenting is adversely affecting innovation. Counting patents, as it turns out, offers few insights on its own. One must also have a measure of the geographic scope of the scientific commons and the distribution of patents within it. These findings lead to a cautionary corollary for patent metrics generally - fundamental uncertainties associated with the statistics of innovative success cannot be overcome by sophisticated empirical methods. Ironically, the current enthusiasm for empirical work may have caused academics to reify abstract statistics over the obvious complexity of innovative processes."
So their "comprehensive empirical study" shows there is no evidence of a problem with biotech patents but the situation is too complex to measure by "sophisticated empirical methods."
The article begins promisingly with a quote from Stephen J. Gould:
"[Among] the oldest issues and errors of our philosophical tradition [are] reductionism, or the desire to explain partly random, large scale, and irreducible complex phneomena by deterministic behaviour of the smallest constituent parts... [and] reification, or the propensity to convert an abstract concept [like value] into a hard entity."
They go on having studied Patent Office statistics to retain the essence of this in their conclusions but not before making a rather strong conclusion:
"We conclude that the lack of concentrated control, rising number of patent applications, and the continuous influx of new patent owners suggest that overall biotechnology innovation is not being impaired by the growth of patents issued each year.
Our analysis also reveals the many pitfalls of seeking to resolve this question at a synoptic level using simple metrics. In this sense both the advocates of the anticommons theory and the enthusiasts of patent characteristics err by oversimplifying the multidimensional character of patent dynamics."
It's true that the biotech patent landscape is complex and neither easy to understand nor measure but then nothing in life that is really valuable is easy to measure. Whilst it may be true of some, however, I can't see that that proponents of cultural environmentalism like James Boyle, Larry Lessig, James Love, Yochai Benkler, Siva Vaidhyanathan etc. could ever be justifiably accused of underestimating the multidimensional character of patent dynamics.
Now that someone has done some patent counting, however, and skeptical though I am about their main conclusion, let's see some more empirical research and some new creative approaches to the issue.