ORDER
A combined petition for rehearing and suggestion for rehearing in banc having been filed by the Cross-Appellant, an amicus curiae brief having been filed by Johnson & Johnson, and a response thereto having been invited by the court and !filed by the Appellant, and the petition for rehearing having been referred to the panel that heard the appeal, and thereafter the suggestion for rehearing in banc, amicus brief and response having been referred to the circuit judges who are authorized to request a poll whether to rehear the appeal in banc, and a poll having been requested, taken, and failed, it is
ORDERED that the petition for rehearing be, and the same hereby is, DENIED; and it is further
ORDERED that the suggestion for rehearing in banc be, and the same hereby is, DECLINED.
Circuit Judge CLEVENGER concurs in a separate opinion. Circuit Judge LOURIE, with whom Circuit Judge PAULINE NEWMAN and Circuit Judge RADER join, dissents in a separate opinion. Circuit Judge BRYSON would rehear the appeal. Circuit Judge MICHEL, Circuit Judge SCHALL and Circuit Judge GAJARSA did not participate.The mandate of the court will issue on June 4,1998.