02-4383. Determination of Regulatory Review Period for Purposes of Patent Extension; Menicon Z Rigid Gas Permeable Contact Lens

AGENCY:

Food and Drug Administration, HHS.

ACTION:

Notice.

SUMMARY:

The Food and Drug Administration (FDA) has determined the regulatory review period for Menicon Z Rigid Gas Permeable Contact Lens 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 medical device.

ADDRESSES:

Submit written comments and petitions to the Dockets Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to http://www.fda.gov/​dockets/​ecomments.

FOR FURTHER INFORMATION CONTACT:

Claudia V. Grillo, Office of Regulatory Policy (HFD-007), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.

SUPPLEMENTARY INFORMATION:

The Drug Price Competition and Patent Term Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug and Patent Term Restoration Act (Public Law 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 medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. 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 (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 medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).

FDA recently approved for marketing the medical device Menicon Z Rigid Gas Permeable Contact Lens. This product is indicated for extended wear (from 1 to 7 days between removals for cleaning and disinfection of the lenses, as recommended by the eyecare practitioner) for the correction of refractive error (myopia, hyperopia, presbyopia and/or astigmatism) in non-aphakic persons with non-diseased eyes. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for Menicon Z Rigid Gas Permeable Contact Lens (U.S. Patent No. 4,594,401) from Menicon Co., 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 6, 2001, FDA advised the Patent and Trademark Office that this medical device had undergone a regulatory review period and that the approval of Menicon Z Rigid Gas Permeable Contact Lens 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 Menicon Z Rigid Gas Permeable Contact Lens is 1,917 days. Of this time, 1,435 days occurred during the testing phase of the regulatory review period, while 482 days occurred during the approval phase. These periods of time were derived from the following dates:

1. The date a clinical investigation involving this device was begun: April 14, 1995. The applicant claims that the investigational device exemption (IDE) required under section 520(g) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360j(g)) for human tests to begin became effective on April 4, 1995. However, FDA records indicate that the IDE was determined substantially complete for clinical studies to have begun on April 14, 1995, which represents the IDE effective date.

2. The date the application was initially submitted with respect to the device under section 515 of the act (21 U.S.C. 360e): March 18, 1999. FDA has verified the applicant's claim that the premarket approval application (PMA) for Menicon Z Rigid Gas Permeable Contact Lens (PMA P990018) was initially submitted March 18, 1999.

3. The date the application was approved: July 11, 2000. FDA has verified the applicant's claim that PMA P990018 was approved on July 11, 2000.

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 1,205 days of patent term extension.

Anyone with knowledge that any of the dates as published are incorrect may submit to the Dockets Management Branch (address above) written or electronic comments and ask for a redetermination by April 26, 2002. Furthermore, any interested person may petition FDA by for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period by August 26, 2002. 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. Three copies of any information are to be submitted, except that individuals may submit one copy. Comments are to be 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: January 24, 2002.

Jane A. Axelrad,

Associate Director for Policy, Center for Drug Evaluation and Research.