[Federal Register Volume 61, Number 231 (Friday, November 29, 1996)]
[Notices]
[Pages 60711-60712]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30387]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 96E-0275]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; MYOVIEWTM

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 MYOVIEWTM 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, 
12420 Parklawn Dr., rm. 1-23, 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 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 
MYOVIEWTM (technetium tc99m tetrofosmin). MYOVIEWTM is 
indicated for the scintigraphic delineation of regions of reversible 
ischemia in the presence or absence of infarcted myocardium. Subsequent 
to this approval, the Patent and Trademark Office received a patent 
term restoration application for MYOVIEWTM (U.S. Patent No. 
5,045,302) from Amersham International PLC, and the Patent and 
Trademark Office requested FDA's assistance in determining this 
patent's eligibility for patent term restoration. In a letter dated 
September 10, 1996, FDA advised the Patent and Trademark Office that 
this human drug product had undergone a regulatory review period and 
that the approval of MYOVIEWTM 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 
MYOVIEWTM is 2,062 days. Of this time, 1,084 days occurred during 
the testing phase of the regulatory review period, while 978 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 (21 U.S.C. 355(i)) became effective: June 20, 
1990. FDA has verified the applicant's claim that the date that the 
investigational new drug application (IND) became effective was on June 
20, 1990.
    2. The date the application was initially submitted with respect to 
the

[[Page 60712]]

human drug product under section 505(b) of the Federal Food, Drug, and 
Cosmetic Act:  June 7, 1993. The applicant claims June 4, 1993, as the 
date the new drug application (NDA) for MYOVIEWTM (NDA 20-372) was 
initially submitted. However, FDA records indicate that NDA 20-372 was 
submitted on June 7, 1993.
    3. The date the application was approved:  February 9, 1996. FDA 
has verified the applicant's claim that NDA 20-372 was approved on 
February 9, 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 491 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before January 28, 1997, 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 May 28, 1997, 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: November 20, 1996.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 96-30387 Filed 11-27-96; 8:45 am]
BILLING CODE 4160-01-F