[Code of Federal Regulations]
[Title 21 Volume 5]
[Revised as of April 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 21CFR314.95]

[Page 126-127]
 
                        TITLE 21--FOOD AND DRUGS
 
CHAPTER I--FOOD AND DRUG ADMINISTRATION, DEPARTMENT OF HEALTH AND HUMAN 
                          SERVICES (CONTINUED)
 
PART 314--APPLICATIONS FOR FDA APPROVAL TO MARKET A NEW DRUG--Table of Contents
 
                   Subpart C--Abbreviated Applications
 
Sec. 314.95  Notice of certification of invalidity or noninfringement of a patent.

    (a) Notice of certification. For each patent that claims the listed 
drug or that claims a use for such listed drug for which the applicant 
is seeking approval and that the applicant certifies under 
Sec. 314.94(a)(12) is invalid, unenforceable, or will not be infringed, 
the applicant shall send notice of such certification by registered or 
certified mail, return receipt requested to each of the following 
persons:
    (1) Each owner of the patent which is the subject of the 
certification or the representative designated by the owner to receive 
the notice. The name and address of the patent owner or its 
representative may be obtained from the United States Patent and 
Trademark Office; and
    (2) The holder of the approved application under section 505(b) of 
the act for the listed drug that is claimed by the patent and for which 
the applicant is seeking approval, or, if the application holder does 
not reside or maintain a place of business within the United States, the 
application holder's attorney, agent, or other authorized official. The 
name and address of the application holder or its attorney, agent, or 
authorized official may be obtained from the Division of Drug 
Information Resources (HFD-80), Center for Drug Evaluation and Research, 
Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857.
    (3) This paragraph does not apply to a use patent that claims no 
uses for which the applicant is seeking approval.
    (b) Sending the notice. The applicant shall send the notice required 
by paragraph (a) of this section when it receives from FDA an 
acknowledgment letter stating that its abbreviated new drug application 
is sufficiently complete to permit a substantive review. At the same 
time, the applicant shall amend its abbreviated new drug application to 
include a statement certifying that the notice has been provided to each 
person identified under paragraph (a) of this section and that the 
notice met the content requirements under paragraph (c) of this section.
    (c) Contents of a notice. In the notice, the applicant shall cite 
section 505(j)(2)(B)(ii) of the act and shall include, but not be 
limited to, the following information:
    (1) A statement that FDA has received an abbreviated new drug 
application submitted by the applicant containing any required 
bioavailability or bioequivalence data or information.
    (2) The abbreviated application number.
    (3) The established name, if any, as defined in section 502(e)(3) of 
the act, of the proposed drug product.
    (4) The active ingredient, strength, and dosage form of the proposed 
drug product.
    (5) The patent number and expiration date, as submitted to the 
agency or as known to the applicant, of each patent alleged to be 
invalid, unenforceable, or not infringed.
    (6) A detailed statement of the factual and legal basis of the 
applicant's opinion that the patent is not valid, unenforceable, or will 
not be infringed.

[[Page 127]]

The applicant shall include in the detailed statement:
    (i) For each claim of a patent alleged not to be infringed, a full 
and detailed explanation of why the claim is not infringed.
    (ii) For each claim of a patent alleged to be invalid or 
unenforceable, a full and detailed explanation of the grounds supporting 
the allegation.
    (7) If the applicant does not reside or have a place of business in 
the United States, the name and address of an agent in the United States 
authorized to accept service of process for the applicant.
    (d) Amendment to an abbreviated application. If an abbreviated 
application is amended to include the certification described in 
Sec. 314.94(a)(12)(i)(A)(4), the applicant shall send the notice 
required by paragraph (a) of this section at the same time that the 
amendment to the abbreviated application is submitted to FDA.
    (e) Documentation of receipt of notice. The applicant shall amend 
its abbreviated application to document receipt of the notice required 
under paragraph (a) of this section by each person provided the notice. 
The applicant shall include a copy of the return receipt or other 
similar evidence of the date the notification was received. FDA will 
accept as adequate documentation of the date of receipt a return receipt 
or a letter acknowledging receipt by the person provided the notice. An 
applicant may rely on another form of documentation only if FDA has 
agreed to such documentation in advance. A copy of the notice itself 
need not be submitted to the agency.
    (f) Approval. If the requirements of this section are met, FDA will 
presume the notice to be complete and sufficient, and it will count the 
day following the date of receipt of the notice by the patent owner or 
its representative and by the approved application holder as the first 
day of the 45-day period provided for in section 505(j)(4)(B)(iii) of 
the act. FDA may, if the applicant provides a written statement to FDA 
that a later date should be used, count from such later date.

[59 FR 50366, Oct. 3, 1994]