[Federal Register Volume 62, Number 28 (Tuesday, February 11, 1997)]
[Notices]
[Pages 6261-6262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-3313]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. 96E-0388]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; MERREM I.V.

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 MERREM I.V. 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 
MERREM I.V. (meropenem). MERREM I.V. is indicated 
as single agent therapy for the treatment of the following infections

[[Page 6262]]

when caused by susceptible strains of the following designated 
microorgranisms: Intra-abdominal Infections: Complicated appendicitis 
and peritonitis caused by viridans group streptococci, Escherichia 
coli, Klebsiella pneumoniae, Pseudomonas aeruginosa, Bacteroides 
fragilis, B. thetaiotaomicron, and Peptostreptococcus species. 
Bacterial Meningitis (pediatric patients gr-thn-eq 3 months only): 
Bacterial meningitis caused by Streptococcus pneumoniae, Haemophilus 
influenzae (-lactamase and non--lactamase-producing 
strains), and Neisseria meningitidis. Subsequent to this approval, the 
Patent and Trademark Office received a patent term restoration 
application for MERREM I.V. (U.S. Patent No. 4,943,569) from 
Sumitomo Pharmaceutical Co., Ltd., and the Patent and Trademark Office 
requested FDA's assistance in determining this patent's eligibility for 
patent term restoration. In a letter dated November 4, 1996, FDA 
advised the Patent and Trademark Office that this human drug product 
had undergone a regulatory review period and that the approval of 
MERREM I.V. 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 
MERREM I.V. is 2,608 days. Of this time, 1,640 days occurred 
during the testing phase of the regulatory review period, while 968 
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: May 3, 
1989. FDA has verified the applicant's claim that the date that the 
investigational new drug application became effective was on May 3, 
1989.
    2. The date the application was initially submitted with respect to 
the human drug product under section 507 of the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 357): October 28, 1993. FDA has verified the 
applicant's claim that the new drug application (NDA) for 
MERREM I.V. (NDA 50-706) was initially submitted on October 
28, 1993.
    3. The date the application was approved: June 21, 1996. FDA has 
verified the applicant's claim that NDA 20-506 was approved on June 21, 
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 1,063 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before April 14, 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 August 11, 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: January 31, 1997.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 97-3313 Filed 2-10-97; 8:45 am]
BILLING CODE 4160-01-F