ON PETITION FOR PANEL REHEARING AND REHEARING EN BANC

ORDER

A combined petition for panel rehearing and rehearing en banc was filed by Plaintiff-Appellee, and a response thereto was invited by the court and filed by Defendant-Appellant. The petition for panel rehearing was considered by the panel that heard the appeal, and thereafter the petition for rehearing en banc, response, and brief of amicus curiae Timber Products Company were referred to the circuit judges who are authorized to request a poll of whether to rehear the appeal en banc. A poll was requested, taken, and failed.

Upon consideration thereof,

It Is ORDERED That:

(1) The petition of Plaintiff-Appellee for panel rehearing is denied.

(2) The petition of Plaintiff-Appellee for rehearing en banc is denied.

(3) The mandate of the court will issue on March 1, 2013.

dissents, without opinion, from the denial of the petition for rehearing en banc.