Intellectual Property and the Dark Side of the Pharmaceutical Industry

In this talk I examine how the patent system operates as a system of ‘industrialised hope’, framed by the promise of beneficial innovation, but which can instead become a vehicle for extracting unfair profits and enabling public harm. The first strand draws on my forthcoming 2026 European Law Open article on ‘fair profits’ in the pharmaceutical industry. I argue that pharmaceutical prices and profits should be understood as constituted by law rather than generated by neutral market processes. The patent system is not a backdrop to market activity but one of the primary legal mechanisms through which that market, and its distortions, are constructed. I trace how this legal architecture ties financial reward to exclusivity-enabled pricing power rather than to any measure of therapeutic or social value, examining how existing correctives – compulsory licensing, public funding conditions, supplementary incentives – address symptoms of this problem without disturbing its root cause. The talk’s second strand draws on my 2025 SLS article – ‘False Hope and Fictitious Patents’ – to show this dynamic in its starkest form. Patenting practices around OxyContin relied on the rhetoric of industrialised hope but functioned not merely to create and extend market exclusivity, but to construct a misleading narrative of beneficial innovation, fuelling the devastating US opioid crisis. I conclude that the dark side of pharmaceutical innovation is not an aberration at the margins of an otherwise well-functioning system, but a structural feature of a legal architecture that privileges exclusivity-based profit extraction over patient welfare – and one that current IP law tools are ill-equipped to correct.

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