[Federal Register Volume 63, Number 132 (Friday, July 10, 1998)]
[Notices]
[Pages 37397-37398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18408]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. 96E-0452]
Determination of Regulatory Review Period for Purposes of Patent
Extension; VERLUMATM
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 VERLUMATM 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 biological 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) 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 biological products, the
testing phase begins when the exemption to permit the clinical
investigations of the biological becomes effective and runs until the
approval phase begins. The approval phase starts with the initial
submission of an application to market the human biological product and
continues until FDA grants permission to market the biological 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
[[Page 37398]]
length of a regulatory review period for a human biological 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 biological product
VERLUMATM (nofetumomab). VERLUMATM is indicated
for the detection of extensive stage disease in patients with biopsy
confirmed, previously untreated small cell lung cancer. Subsequent to
this approval, the Patent and Trademark Office received a patent term
restoration application for VERLUMATM (U.S. Patent No.
4,897,255) from NeoRx 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 July 9, 1997, FDA advised
the Patent and Trademark Office that this human biological product had
undergone a regulatory review period and that the approval of
VERLUMATM represented the first permitted commercial
marketing or use of the product. Shortly thereafter, the Patent and
Trademark Office requested that the FDA determine the product's
regulatory review period.
FDA has determined that the applicable regulatory review period for
VERLUMATM is 3,360 days. Of this time, 925 days occurred
during the testing phase of the regulatory review period, 2,435 days
occurred during the approval phase. These periods of time were derived
from the following dates:
1. The date an exemption under section 351 of the Public Health
Service Act became effective: June 11, 1987. The applicant claims
September 4, 1987, as the date the investigational new drug application
(IND) became effective. However, FDA records indicate that the IND
effective date was June 11, 1987, which was 30 days after FDA receipt
of the IND.
2. The date the application was initially submitted with respect to
the human biological product under section 351 of the Public Health
Service Act: December 21, 1989. FDA has verified the applicant's claim
that the Product License Application (PLA) for VERLUMATM
(PLA 90-0150) was initially submitted on December 21, 1989.
3. The date the application was approved: August 20, 1996. FDA has
verified the applicant's claim that PLA 90-0150 was approved on August
20, 1996.
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 1,298 days of
patent term extension.
Anyone with knowledge that any of the dates as published is
incorrect may, on or before September 8, 1998, 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 January 6, 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: June 29, 1998.
Thomas J. McGinnis,
Deputy Associate Commissioner for Health Affairs.
[FR Doc. 98-18408 Filed 7-9-98; 8:45 am]
BILLING CODE 4160-01-F
