[Federal Register Volume 61, Number 1 (Tuesday, January 2, 1996)]
[Notices]
[Pages 73-74]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31555]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 95E-0303]
Determination of Regulatory Review Period for Purposes of Patent
Extension; ADENOSCAN
AGENCY: Food and Drug Administration, HHS.
ACTION: Notice.
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SUMMARY: The Food and Drug Administration (FDA) has determined the
regulatory review period for ADENOSCAN and is publishing this
notice of that determination as required by law. FDA has made the
determination because of the submission of an application to the
Commissioner of Patents and Trademarks, Department of Commerce, for the
extension of a patent which claims that human drug product.
ADDRESSES: Written comments and petitions should be directed to the
Dockets Management Branch (HFA-305), Food and Drug Administration, rm.
1-23, 12420 Parklawn Dr., Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Brian J. Malkin, Office of Health
Affairs (HFY-20), Food and Drug Administration, 5600 Fishers Lane,
Rockville, MD 20857, 301-443-1382.
SUPPLEMENTARY INFORMATION: The Drug Price Competition and Patent Term
Restoration Act of 1984 (Pub. L. 98-417) and the Generic Animal Drug
and Patent Term Restoration Act (Pub. L. 100-670) generally provide
that a patent may be extended for a period of up to 5 years so long as
the patented item (human drug product, animal drug product, medical
device, food additive, or color additive) was subject to regulatory
review by FDA before the item was marketed. Under these acts, a
product's regulatory review period forms the basis for determining the
amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A
testing phase and an approval phase. For human drug products, the
testing phase begins when the exemption to permit the clinical
investigations of the drug becomes effective and runs until the
approval phase begins. The approval phase starts with the initial
submission of an application to market the human drug product and
continues until FDA grants permission to market the drug product.
Although only a portion of a regulatory review period may count toward
the actual amount of extension that the Commissioner of Patents and
Trademarks may award (for example, half the testing phase must be
subtracted as well as any time that may have occurred before the patent
was issued), FDA's determination of the length of a regulatory review
period for a human drug product will include all of the testing phase
and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA recently approved for marketing the human drug product
ADENOSCAN (adenosine). ADENOSCAN is indicated as an
adjunct to thallium-201 myocardial perfusion scintigraphy in patients
unable to exercise adequately. Subsequent to this approval, the Patent
and Trademark Office received a patent term restoration application for
ADENOSCAN (U.S. Patent No. 5,070,877) from Medco Research,
Inc., and the Patent and Trademark Office requested FDA's assistance in
determining this patent's eligibility for patent term restoration. In a
letter dated September 25, 1995, FDA advised the Patent and Trademark
Office that this
[[Page 74]]
human drug product had undergone a regulatory review period and that
the approval of ADENOSCAN represented the first permitted
commercial marketing or use of the product. Shortly thereafter, the
Patent and Trademark Office requested that FDA determine the product's
regulatory review period.
FDA has determined that the applicable regulatory review period for
ADENOSCAN is 2,688 days. Of this time, 768 days occurred
during the testing phase of the regulatory review period, while 1,920
days occurred during the approval phase. These periods of time were
derived from the following dates:
1. The date an exemption under section 505(i) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 355(i)) became effective: January 9,
1988. The applicant claims December 10, 1987, as the date the
investigational new drug application (IND) became effective. However,
FDA records indicate that the IND effective date was January 9, 1988,
which was 30 days after FDA receipt of the IND on December 10, 1987.
2. The date the application was initially submitted with respect to
the human drug product under section 505(b) of the Federal Food, Drug,
and Cosmetic Act: February 14, 1990. The applicant claims February 9,
1990, as the date the new drug application (NDA) for
ADENOSCAN (NDA 20-059) was initially submitted. However,
while FDA records indicate that the applicant submitted NDA 20-059 on
February 9, 1990, FDA received the NDA on February 14, 1990, which is
considered to be the date the NDA was initially submitted.
3. The date the human drug was approved: May 18, 1995. FDA has
verified the applicant's claim that NDA-059 was approved on May 18,
1995.
This determination of the regulatory review period establishes the
maximum potential length of a patent extension. However, the U.S.
Patent and Trademark Office applies several statutory limitations in
its calculations of the actual period for patent extension. In its
application for patent extension, this applicant seeks 159 days of
patent term extension.
Anyone with knowledge that any of the dates as published is
incorrect may, on or before March 4, 1996, submit to the Dockets
Management Branch (address above) written comments and ask for a
redetermination. Furthermore, any interested person may petition FDA,
on or before July 1, 1996, for a determination regarding whether the
applicant for extension acted with due diligence during the regulatory
review period. To meet its burden, the petition must contain sufficient
facts to merit an FDA investigation. (See H. Rept. 857, part 1, 98th
Cong., 2d sess., pp. 41-42, 1984.) Petitions should be in the format
specified in 21 CFR 10.30.
Comments and petitions should be submitted to the Dockets
Management Branch (address above) in three copies (except that
individuals may submit single copies) and identified with the docket
number found in brackets in the heading of this document. Comments and
petitions may be seen in the Dockets Management Branch between 9 a.m.
and 4 p.m., Monday through Friday.
Dated: December 21, 1995.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 95-31555 Filed 12-29-95; 8:45 am]
BILLING CODE 4160-01-F
