[Federal Register Volume 75, Number 64 (Monday, April 5, 2010)]
[Notices]
[Pages 17142-17143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7516]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket Nos. FDA-2009-E-0202 and FDA-2009-E-0204]
Determination of Regulatory Review Period for Purposes of Patent
Extension; LUSEDRA
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
[[Page 17143]]
LUSEDRA and is publishing this notice of that determination as required
by law. FDA has made the determination because of the submission of
applications to the Director of Patents and Trademarks, Department of
Commerce, for the extension of a patent which claims that human drug
product.
ADDRESSES: Submit written comments and petitions to the Division of
Dockets Management (HFA-305), Food and Drug Administration, 5630
Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments
to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of Regulatory
Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg.
51, rm. 6222, Silver Spring, MD 20993-0002, 301-796-3602.
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 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 Director 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 LUSEDRA
(fospropofol disodium). LUSEDRA is a sedative-hypnotic agent indicated
for monitored anesthesia care sedation in adult patients undergoing
diagnostic or therapeutic procedures. Subsequent to this approval, the
Patent and Trademark Office received patent term restoration
applications for LUSEDRA (U.S. Patent Nos. 6,204,257 and 6,872,838)
from University of Kansas, and the Patent and Trademark Office
requested FDA's assistance in determining the patents' eligibility for
patent term restoration. In a letter dated September 29, 2009, FDA
advised the Patent and Trademark Office that this human drug product
had undergone a regulatory review period and that the approval of
LUSEDRA represented the first permitted commercial marketing or use of
the product. 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
LUSEDRA is 2,405 days. Of this time, 1,962 days occurred during the
testing phase of the regulatory review period, while 443 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 (the act) (21 U.S.C. 355(i)) became effective:
May 15, 2002. FDA has verified the applicant's claim that the date the
investigational new drug application became effective was on May 15,
2002.
2. The date the application was initially submitted with respect to
the human drug product under section 505(b) of the act: September 27,
2007. FDA has verified the applicant's claim that the new drug
application (NDA) 22-244 was submitted on September 27, 2007.
3. The date the application was approved: December 12, 2008. FDA
has verified the applicant's claim that NDA 22-244 was approved on
December 12, 2008.
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
applications for patent extension, this applicant seeks 1,424 days of
patent term extension for patent no. 6,204,257 and 899 days of patent
term extension for patent no. 6,872,838.
Anyone with knowledge that any of the dates as published are
incorrect may submit to the Division of Dockets Management (see
ADDRESSES) written or electronic comments and ask for a redetermination
by June 4, 2010. Furthermore, any interested person may petition FDA
for a determination regarding whether the applicant for extension acted
with due diligence during the regulatory review period by October 4,
2010. 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 Division of
Dockets Management. Three copies of any mailed 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 Division of
Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.
Dated: March 22, 2010.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research.
[FR Doc. 2010-7516 Filed 4-2-10; 8:45 am]
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