[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Notices]
[Pages 24705-24706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11436]


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 Notices
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 This section of the FEDERAL REGISTER contains documents other than rules 
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  Federal Register / Vol. 68, No. 89 / Thursday, May 8, 2003 / 
Notices  

[[Page 24705]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

[Docket No. 03-045-1]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; Fel-O-Vax[reg] FIV Vaccine

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Notice.

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SUMMARY: We are advising the public that the Animal and Plant Health 
Inspection Service has determined the regulatory review period for Fel-
O-Vax[reg] FIV Vaccine and is publishing this notice of that 
determination as required by law. We have made this determination in 
response to the submission of an application to the Commissioner of 
Patents and Trademarks, Department of Commerce, for the extension of a 
patent that claims that veterinary biologic.

DATES: We will consider all requests for revision of the regulatory 
review period determination that we receive on or before June 9, 2003. 
We will consider all due diligence petitions that we receive on or 
before November 4, 2003.

ADDRESSES: You may submit revision requests and due diligence petitions 
by postal mail/commercial delivery or by e-mail. If you use postal 
mail/commercial delivery, please send four copies of your request or 
petition (an original and three copies) to: Docket No. 03-045-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
revision request or due diligence petition refers to Docket No. 03-045-
1. If you use e-mail, address your request or petition to 
[email protected]. Your request or petition must be contained 
in the body of your message; do not send attached files. Please include 
your name and address in your message and ``Docket No. 03-045-1'' on 
the subject line.
    You may request a copy of the regulatory review period 
determination by writing to Dr. Larry Ludemann, USDA, APHIS, VS, CVB-
LPD, 510 South 17th Street, Suite 104, Ames, IA 50010-8197, or by 
calling (515) 232-5785. Please refer to the docket number, date, and 
complete title of this notice when requesting copies.
    A copy of the regulatory review period determination and any 
revision requests or due diligence petitions that we receive on this 
determination are available for public inspection in our reading room. 
The reading room is located in room 1141 of the USDA South Building, 
14th Street and Independence Avenue SW., Washington, DC. Normal reading 
room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except 
holidays. To be sure someone is there to help you, please call (202) 
690-2817 before coming.
    APHIS documents published in the Federal Register, and related 
information, including the names of organizations and individuals who 
have commented on APHIS dockets, are available on the internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Albert P. Morgan, Chief Staff 
Officer, Operational Support Section, Center for Veterinary Biologics, 
Licensing and Policy Development, VS, APHIS, 4700 River Road Unit 148, 
Riverdale, MD 20737-1231; phone (301) 734-8245; fax (301) 734-4314. For 
information regarding the regulatory review period determination, 
contact Dr. Larry Ludemann, APHIS, VS, CVB-LPD, 510 South 17th Street, 
Suite 104, Ames, IA 50010-8197; phone (515) 232-5785.

SUPPLEMENTARY INFORMATION: The provisions of 35 U.S.C. 156, ``Extension 
of patent term,'' provide, generally, that a patent for a product may 
be extended for a period of up to 5 years as long as the patent claims 
a product that, among other things, was subject to a regulatory review 
period before its commercial marketing or use. (The term ``product'' is 
defined in that section as ``a drug product'' [which includes 
veterinary biological products] or ``any medical device, food additive, 
or color additive subject to regulation under the Federal Food, Drug, 
and Cosmetic Act.'') A product's regulatory review period forms the 
basis for determining the amount of extension an applicant may receive.
    The regulations in 9 CFR part 124, ``Patent Term Restoration'' 
(referred to below as the regulations), set forth procedures and 
requirements for the Animal and Plant Health Inspection Service's 
(APHIS) review of applications for the extension of the term of certain 
patents for veterinary biological products pursuant to 35 U.S.C. 156. 
As identified in the regulations, the responsibilities of APHIS 
include:
    [sbull] Assisting Patent and Trademark Office of the U.S. 
Department of Commerce in determining eligibility for patent term 
restoration;
    [sbull] Determining the length of a product's regulatory review 
period;
    [sbull] If petitioned, reviewing and ruling on due diligence 
challenges to APHIS's regulatory review period determinations; and
    [sbull] Conducting hearings to review initial APHIS findings on due 
diligence challenges.
    The regulations are designed to be used in conjunction with 
regulations issued by the Patent and Trademark Office concerning patent 
term extension, which may be found at 37 CFR 1.710 through 1.791.
    A regulatory review period consists of two periods of time: A 
testing phase and an approval phase. For veterinary biologics, the 
testing phase begins on the date the authorization to prepare an 
experimental veterinary biologic became effective and runs until the 
approval phase begins. The approval phase begins on the date an 
application for a license was initially submitted for approval and ends 
on the date such license was issued. 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, 
APHIS' determination of the length of a regulatory review period for a 
veterinary biologic will include all of the testing phase and approval 
phase as specified in 35 U.S.C. 156(g)(5)(B).
    APHIS recently licensed for production and marketing the veterinary 
biologic Fel-O-Vax[reg] FIV Vaccine. Subsequent to this approval, the 
Patent and Trademark Office received a patent term restoration 
application for Fel-O-

[[Page 24706]]

Vax[reg] FIV Vaccine (U.S. Patent No. 5,275,813) from the 
Regents of the University of California, and the Patent and Trademark 
Office requested APHIS' assistance in determining this patent's 
eligibility for patent term restoration. In a letter dated March 11, 
2003, APHIS advised the Patent and Trademark Office that this 
veterinary biologic had undergone a regulatory review period and that 
the approval of Fel-O-Vax[reg] FIV Vaccine (Feline 
Immunodeficiency Virus Vaccine, Killed Virus) represented the first 
permitted commercial licensing or use of the product. Subsequently, the 
Patent and Trademark Office requested that APHIS determine the 
product's regulatory review period.
    APHIS has determined that the applicable regulatory review period 
for Fel-O-Vax[reg] FIV Vaccine is 3,853 days. Of this time, 
2,442 days occurred during the testing phase of the regulatory review 
period, and 1,411 days occurred during the approval phase. These 
periods were derived from the following dates:
    1. The date the authority to prepare an experimental biological 
product under the Virus-Serum-Toxin Act (21 U.S.C. 151 et seq.) became 
effective: August 28, 1991. APHIS has verified the applicant's claim 
that the test was begun on August 28, 1991.
    2. The date the application for a license was initially submitted 
for approval under the Virus-Serum-Toxin Act: May 4, 1998. APHIS has 
verified the applicant's claim that the application was initially 
submitted on May 4, 1998.
    3. The date the license was issued: March 14, 2002. APHIS has 
verified the applicant's claim that the license for the commercial 
marketing of the vaccine was issued on March 14, 2002.
    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 3,853 days of 
patent term extension.
    Section 124.22 of the regulations provides that any interested 
person may request a revision of the regulatory review period 
determination within 30 days of the date of this notice (see DATES 
above). The request must specify the following:
    [sbull] The identity of the product;
    [sbull] The identity of the applicant for patent term restoration;
    [sbull] The docket number of this notice; and
    [sbull] The basis for the request for revision, including any 
documentary evidence.
    Further, under Sec.  124.30 of the regulations, any interested 
person may file a petition with APHIS, no later than 180 days after the 
date of this notice (see DATES above), alleging that a license 
applicant did not act with due diligence in seeking APHIS approval of 
the product during the regulatory review period. The filing, format, 
and content of a petition must be as described in the regulations in 
``Subpart D--Due Diligence Petitions'' (Sec. Sec.  124.30 through 
124.33).

    Authority: 35 U.S.C. 156.

    Done in Washington, DC, this 1st day of May 2003.
Peter Fernandez,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 03-11436 Filed 5-7-03; 8:45 am]
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