[Federal Register Volume 62, Number 74 (Thursday, April 17, 1997)]
[Notices]
[Pages 18775-18776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9917]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. 96E-0152]
Determination of Regulatory Review Period for Purposes of Patent
Extension; OXILANTM
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 OXILANTM 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,
12420 Parklawn Dr., rm. 1-23, 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
[[Page 18776]]
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
OXILANTM (loxilan). OXILANTM is indicated for cerebral
arteriography, coronary arteriography and left ventriculography,
visceral angiography, aortography, and peripheral arteriography.
Subsequent to this approval, the Patent and Trademark Office received a
patent term restoration application for OXILANTM (U.S. Patent No.
4,954,348) from Cook Imaging Corp., and the Patent and Trademark Office
requested FDA's assistance in determining this patent's eligibility for
patent term restoration. In a letter dated May 28, 1996, FDA advised
the Patent and Trademark Office that this human drug product had
undergone a regulatory review period and that the approval of
OXILANTM 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
OXILANTM is 2,757 days. Of this time, 1,644 days occurred during
the testing phase of the regulatory review period, while 1,113 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: June 5,
1988. The applicant claims April 29, 1988, as the date the
investigational new drug application (IND) became effective. However,
FDA records indicate that the IND effective date was June 5, 1988,
which was 30 days after FDA receipt of the IND.
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: December 4, 1992. FDA has verified the applicant's
claim that the new drug application (NDA) for OXILANTM (NDA 20-
316) was initially submitted on December 4, 1992.
3. The date the application was approved: December 21, 1995. FDA
has verified the applicant's claim that NDA 20-316 was approved on
December 21, 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 737 days of
patent term extension.
Anyone with knowledge that any of the dates as published is
incorrect may, on or before June 16, 1997, 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 October 14, 1997, 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: April 4, 1997.
Allen B. Duncan,
Acting Associate Commissioner for Health Affairs.
[FR Doc. 97-9917 Filed 4-16-97; 8:45 am]
BILLING CODE 4160-01-F
