NEWMAN and LOURIE, Circuit Judges, would rehear the appeal en banc. LOURIE, Circuit Judge, with whom MICHEL, Chief Judge, and PAULINE NEWMAN, Circuit Judge, join, dissents in a separate opinion. SCHALL, Circuit Judge, did not participate in the vote. ORDER A combined petition for panel rehearing and rehearing en banc was filed by the Appellee, and a response thereto was invited by the court and filed by the Appellant. The petition for rehearing was referred first to the merits panel that heard the appeal.
Thereafter, the petition for rehearing en banc, response, and the amicus curiae brief were referred to the circuit judges who are authorized to request a poll whether to rehear the appeal en banc. A poll was requested, taken, and failed. Upon consideration thereof, IT IS ORDERED THAT:
(1) The petition for panel rehearing is denied.
(2) The petition for rehearing én banc is denied.
(3) The mandate of the court will issue on April 28, 2005. . An amicus curiae brief was filed by the Pharmaceutical Research and Manufacturers of America.