[Ip-health] FTC & Collateral Damages of Monopoly

[ds20@uow.edu.au]

Dear MIke
I read with great interest findings of the FTC but at the end
of the day, you will find them negotiating with the criminals
and there would be few cents fine. This is a funny culture of
negotiatinig with the criminals which got caught on even by
the South African Competition Commission which after finding
GlaxoSmithKline and Boehringer guilty of violating
practically every section of the competition acts of South
Africa sat down with them and decided that licensing at 5%
royalty to selective manufactureres would be good enough for
their crime of withholding access to medicines to millions.
The basic problem is what we call "collateral damages" of the
monopoly where the excess prices charged by the monopolist is
compounded by the capture by the monopolist of the regulatory
agencies whether it is the government as witnessed in the USA
or the judiciary as witnessed by the formation of the Court
of Appeals for Federal Circuit and its various pronouncemnts
(I shudder to think of them as judicial decisions)or the
European Commission (there is a great attempt to form another
branch of the Federal Circuit in the Europeaqn Union) and the
European Biotechnolgical Directive and now and the attempted
uniform European Patent System. The Euroepan Biotechnolgical
directive was shocking enough but the argument of the
Advocate GEneral Jacob saying that the decisions of the
European Court of Justice in Van Dyun (Case 41/74, 1974 ECR
1337, Bouchereau (Case 30/77 Boouchereau 1977ECR 1999) Regina
(regina v. Henn, 1979 ECJ CELEX LEXIS 4451, p. 15) and
Conegate (Conegate v. HM Customs, 1986 ECJ CELEX LEXIS 5990,
ECR 1007, para 14) saying that "in principle it is for each
memeber state to determine in accordance with its wonscale of
values and in the form selected by it the requirements fo
public morality in its terriotry" is to be changed in view of
observations of Board of Appeals in Plant Genetic System
(Case No. 0356/93-3.3.4 dated 21.2.1995). You keep on
wondering that it is the European Court of Justice or the
Board of Appeal which is the superior institution. Board of
Appeal's decision on morality and ordre public is based on
the European Patent Guidelines. So you have got a concept of
morality which needs to be changed because of a guideline. In
fact, extension of patentability to computer programs by the
Court of Appeal in State Street was not a judicial decision
but a change in the Guidelines and the world kept on cursing
the gentlemen. All that the Appeal Court did was to
reiterate teh government guidelines.
Can you think of more perversity of institutional corruption?
The net result of FTC's decision would be nothing but a few
cents payment through mutual agreement.
Daya Shanker