[Federal Register Volume 61, Number 67 (Friday, April 5, 1996)] [Notices] [Pages 15264-15265] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-8474] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. 96E-0033] Determination of Regulatory Review Period for Purposes of Patent Extension; OPTIMMUNEAGENCY: Food and Drug Administration, HHS. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The Food and Drug Administration (FDA) has determined the regulatory review period for OPTIMMUNE 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 animal drug product. ADDRESSES: Written comments and petitions should be directed to the Dockets Management Branch (HFA-305), Food and Drug Administration, rm. 1-23, 12420 Parklawn Dr., 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 an approval phase. For animal drug products, the testing phase begins on the earlier date when either a major environmental effects test was initiated for the drug or when an exemption under section 512(j) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(j)) became effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the animal 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 an animal drug product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(4)(B). FDA recently approved for marketing the animal drug product OPTIMMUNE (cyclosporine). OPTIMMUNE is indicated for treatment of chronic keratoconjunctivitis sicca in dogs. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for OPTIMMUNE (U.S. Patent No. 4,839,342) from Schering 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 February 8, 1996, FDA advised the Patent and Trademark Office that this animal drug product had undergone a regulatory review period and that the approval of OPTIMMUNE represented the first commercial marketing of the product. Shortly thereafter, the Patent and Trademark Office requested that FDA determine the products's regulatory review period. FDA has determined that the applicable regulatory review period for OPTIMMUNE is 1,898 days. Of this time, 1,668 days occurred during the testing phase of the regulatory review period, while 230 days occurred during the approval phase. These periods of time were derived from the following dates: 1. The date an exemption under section 512(j) of the Federal Food, Drug, and Cosmetic Act became effective: May 24, 1990. The applicant claims May 10, 1990, as the date the investigational new animal drug application (INAD) became effective. However, FDA records indicate that the date of FDA's official acknowledgement letter assigning a number to the INAD was May 24, 1990, which is considered to be the effective date for the INAD. 2. The date the application was initially submitted with respect to the animal drug product under section 512(b) of the Federal Food, Drug, and Cosmetic Act: December 16, 1994. The applicant claims December 14, 1994, as the date the new animal drug application (NADA) for OPTIMMUNE (NADA 141-052) was initially submitted. However, FDA records indicate that the date of FDA's official acknowledgement letter assigning a number to the NADA was December 16, 1994, which is considered to be the NADA initially submitted date. 3. The date the application was approved: August 2, 1995. FDA has verified the applicant's claim that NADA 141-052 was approved on August 2, 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 698 days of patent term extension. Anyone with knowledge that any of the dates as published is incorrect may, on or before June 4, 1996, 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 2, 1996, 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. [[Page 15265]] Dated: March 28, 1996. Stuart L. Nightingale, Associate Commissioner for Health Affairs. [FR Doc. 96-8474 Filed 4-4-96; 8:45 am] BILLING CODE 4160-01-F