In a 12-1 vote, with Judge Gajarsa concurring and Judge Dyk dissenting, the U.S. Court of Appeals for the Federal Circuit denied petitions for rehearing and rehearing en banc in Biotechnology Industry Organization v. District of Columbia. Case No. 06-1593 (Fed. Cir., Oct. 30, 2007) (Gajarsa, J., concurring; Dyk, J., dissenting).
In the decision being challenged, the Federal Circuit this August had upheld the United States Court of Appeals for the District of Columbia’s judgment declaring the District’s Prescription Drug Excessive Pricing Act of 2005 (the D.C. Act), codified at D.C. Code § 28-4551 to 28-4555, was preempted by federal patent laws and enjoining its enforcement. According to the D.C. Act, "[a] prima facie case of excessive pricing shall be established where the wholesale price of a patented prescription drug in the District is over 30% than the comparable price in any high income country in which the product is protected by patents or other exclusive marketing rights."
