[Federal Register Volume 62, Number 139 (Monday, July 21, 1997)]
[Notices]
[Page 39002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19011]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration
[Docket No. 97E-0107]


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

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 ProstaScintTM 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 biologic 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 biologic product, 
ProstaScintTM (capromab pendetide). ProstaScintTM 
is indicated as a diagnostic imaging agent in newly-diagnosed patients 
with biopsy-proven prostate cancer, thought to be clinically-localized 
after standard diagnostic evaluation (e.g., chest x-ray, bone scan, CT 
scan, or MRI), who are at high-risk for pelvic lymph node metastases. 
Subsequent to this approval, the Patent and Trademark Office received a 
patent term restoration application for ProstaScintTM (U.S. 
Patent No. 5,162,504) from the Cytogen Corp., and the Patent and 
Trademark Office requested FDA's assistance in determining the patent's 
eligibility for patent term restoration. In a letter dated April 10, 
1997, FDA advised the patent and Trademark office that this human 
biologic product had undergone a regulatory review period and that the 
approval of ProstaScintTM 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 
ProstaScintTM is 2,561 days. Of this time, 1,906 days 
occurred during the testing phase of the regulatory review period, 
while 655 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: October 26, 
1989. FDA has verified the applicant's claim that the date the 
investigational new drug application became effective was on October 
26, 1989.
    2. The date the application was initially submitted with respect to 
the human biologic product under section 351 of the Public Health 
Service Act: January 13, 1995. The applicant claims January 12, 1995, 
as the date the product license application (PLA) for 
ProstaScintTM (PLA 94-0041) was initially submitted. 
However, FDA records indicate that PLA 94-0041 was submitted on January 
13, 1995.
    3. The date the application was approved: October 28, 1996. FDA has 
verified the applicant's claim that PLA 94-0041 was approved on October 
28, 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 353 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before September 19, 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 January 20, 1998 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: July 8, 1997.
Allen B. Duncan,
Acting Associate Commissioner for Health Affairs.
[FR Doc. 97-19011 Filed 7-18-97; 8:45 am]
BILLING CODE 4160-01-F