[Federal Register Volume 64, Number 97 (Thursday, May 20, 1999)]
[Notices]
[Pages 27579-27580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12654]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. 98E-0840]
Determination of Regulatory Review Period for Purposes of Patent
Extension; Omnicef Oral Suspension
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 Omnicef Oral Suspension 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, 5630
Fishers Lane, rm. 1061, Rockville, MD 20852.
FOR FURTHER INFORMATION CONTACT: Brian J. Malkin, Office of Health
Affairs (HFY-20), Food and Drug Administration, 5600 Fishers Lane,
Rockville, MD 20857, 301-827-6620.
SUPPLEMENTARY INFORMATION: The Drug Price Competition and Patent Term
Restoration Act of 1984 (Pub. L. 98-417)
[[Page 27580]]
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
Omnicef Oral Suspension (cefdinir). Omnicef Oral
Suspension is indicated for the treatment of patients with mild to
moderate infections caused by susceptible strains of specific
microorganisms in specified conditions. Subsequent to this approval,
the Patent and Trademark Office received a patent term restoration
application for Omnicef Oral Suspension (U.S. Patent No.
4,935,507) from Warner-Lambert 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 December 14, 1998, FDA
advised the Patent and Trademark Office that this human drug product
had undergone a regulatory review period and that the approval of
Omnicef Oral Suspension 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 Omnicef Oral Suspension is 2,745 days. Of this time,
2,406 days occurred during the testing phase of the regulatory review
period, while 339 days occurred during the approval phase. These
periods of time were derived from the following dates:
1. The date an exemption under section 505 of the Federal Food,
Drug, and Cosmetic Act (the act) (21 U.S.C. 355) became effective: June
1, 1990. FDA has verified the applicant's claim that the date the
investigational new drug application became effective was on June 1,
1990.
2. The date the application was initially submitted with respect
to the human drug product under section 505 of the act: December 31,
1996. FDA has verified the applicant's claim that the new drug
application (NDA) for Omnicef Oral Suspension (NDA 50-749)
was initially submitted on December 31, 1996.
3. The date the application was approved: December 4, 1997. FDA
has verified the applicant's claim that NDA 50-749 was approved on
December 4, 1997.
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 1,213 days of
patent term extension.
Anyone with knowledge that any of the dates as published is
incorrect may, on or before July 19, 1999, 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 November 16, 1999, 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: May 4, 1999.
Thomas J. McGinnis,
Deputy Associate Commissioner for Health Affairs.
[FR Doc. 99-12654 Filed 5-19-99; 8:45 am]
BILLING CODE 4160-01-F
