In a precedential order today, the Federal Circuit denied a petition for rehearing and rehearing en banc in Biotechnology Industry Organization vs. District of Columbia.  On August 3, the court held that the Prescription Drug Excessive Pricing Act of 2005 enacted by the District of Columbia City Council, which prohibited a patented drug from being sold in the District of Columbia for an excessive price, was preempted by Federal Patent Law (click here for our previous coverage of the decision).  The court's decision held that "[b]y penalizing high prices—and thus limiting the full exercise of the market power that derives from a patent—the District has chosen to re-balance the statutory framework of rewards and incentives insofar as it relates to inventive new drugs."   The court also noted that the Act specifically targeted patented drugs and that "[t]he underlying determination about the proper balance between innovators' profit and consumer access to medication, though, is exclusively one for Congress to make."  

Judge Dyk dissented from the denial of rehearing en banc, expressing concerns that the panel's opinion is too broad, and could be read to signal preemption of any similar law, even one that arguably does not interfere with the patent law field.  Judge Gajarsa concurred in the denial, arguing that the decision was not in conflict with an earlier panel decision or a decision of the Supreme Court, and that its scope is not as broad as Judge Dyk argued.

More detail of the individual opinions in the order after the jump.

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