San Diego Law Review


Cynthia M. Ho

Document Type



This Article hopes to provide a balanced picture of how current patent law and policy promotes mostly modest, yet high priced new drugs, as well as how cognitive biases have perpetuated this situation. This Article highlights the important interplay of cognitive biases not only by the frequently maligned industry but also previously presumed neutral parties, such as academics and policymakers. Most scholars would likely agree that considering how to optimize or at least not distort innovation is an important part of legal scholarship. However, to date, there has been little recognition, let alone robust discussion, of how patent and related laws promote problematic innovation of drugs, resulting in a situation where society is “drugged out” of necessary therapies. Although some scholars and policymakers have recognized that pharmaceutical innovation is mostly incremental, such recognition has thus far focused on proposing solutions outside the patent arena with no challenges to the fundamental patent law dialogue. This Article hopes to provide a first step toward doing so.