[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Notices]
[Page 9198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-4961]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 96E-0265]


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

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 REDUXTM 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 
REDUXTM (dexfenfluramine hydrochloride). REDUXTM is indicated 
for the management of obesity including weight loss and maintenance of 
weight loss in patients on a reduced calorie diet. Subsequent to this 
approval, the Patent and Trademark Office received a patent term 
restoration application for REDUXTM (U.S. Patent No. 4,309,445) 
from Interneuron Pharmaceuticals, Inc., 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 21, 
1996, FDA advised the Patent and Trademark Office that this human drug 
product had undergone a regulatory review period and that the approval 
of REDUXTM 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 
REDUXTM is 1,613 days. Of this time, 541 days occurred during the 
testing phase of the regulatory review period, while 1,072 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: December 1, 
1991. The applicant claims January 13, 1992, as the date the 
investigational new drug application (IND) for REDUXTM (IND 
38,108) became effective. However, FDA records indicate that the 
effective date for IND 38,108 was December 1, 1991, which was 30 days 
after FDA receipt of the IND on November 1, 1991.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505(b) of the Federal Food, Drug, 
and Cosmetic Act: May 24, 1993. The applicant claims May 23, 1993, as 
the date the new drug application (NDA) for REDUXTM (NDA 20-344) 
was initially submitted. However, FDA records indicate that NDA 20-344 
was submitted on May 24, 1993.
    3. The date the application was approved: April 29, 1996. FDA has 
verified the applicant's claim that NDA 20-344 was approved on April 
29, 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 1,322 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before April 29, 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 27, 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: February 18, 1997.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 97-4961 Filed 2-27-97; 8:45 am]
BILLING CODE 4160-01-F