[Federal Register Volume 72, Number 100 (Thursday, May 24, 2007)]
[Notices]
[Pages 29172-29173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10052]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. 2003E-0457]


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

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 SOMAVERT 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 Director of Patents 
and Trademarks, Department of Commerce, for the extension of a patent 
which claims that human drug product.

ADDRESSES: Submit written comments and petitions to the Division of 
Dockets Management (HFA-305), Food and Drug Administration, 5630 
Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments 
to http://www.fda.gov/dockets/ecomments.

FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of Regulatory 
Policy (HFD-007), Food and Drug Administration, 5600 Fishers Lane, 
Rockville, MD 20857, 301-594-2041.

SUPPLEMENTARY INFORMATION: The Drug Price Competition and Patent Term 
Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug 
and Patent Term Restoration Act (Public Law 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 human drug product 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 Director 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 SOMAVERT 
(pegvisomant). SOMAVERT is indicated for the treatment of acromegaly in 
patients who have had an inadequate response to surgery and/or 
radiation therapy and/or other medical therapies, or for whom these 
therapies are not appropriate. Subsequent to this approval, the Patent 
and Trademark Office received a patent term restoration application for 
SOMAVERT (U.S. Patent No. 5,849,535) from Genentech, 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 April 6, 2004, FDA advised the Patent and Trademark Office that 
this human drug product had undergone a regulatory review period and 
that the approval of SOMAVERT represented the first permitted 
commercial marketing or use of the product. 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 
SOMAVERT is 2,169 days. Of this time, 1,349 days occurred during the 
testing phase of the regulatory review period, while 820 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 (the act) (21 U.S.C. 355(i)) became effective: 
April 18, 1997. FDA has verified the applicant's claim that the date 
the investigational new drug application became effective was on April 
18, 1997.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505(b) of the act: December 26, 
2000. The applicant claims December 22, 2000, as the date the new drug 
application (NDA) for SOMAVERT (NDA 21-106) was initially submitted. 
However, FDA records indicate that NDA 21-106 was submitted on December 
26, 2000.
    3. The date the application was approved: March 25, 2003. FDA has 
verified the applicant's claim that NDA 21-106 was approved on March 
25, 2003.
    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 466 days of 
patent term extension. Anyone with knowledge that any of the dates as 
published are incorrect may submit to the Division of Dockets 
Management (see ADDRESSES) written or electronic comments and ask for a 
redetermination by July 23, 2007. Furthermore, any interested person 
may petition FDA for a determination regarding whether the applicant 
for extension acted with due diligence during the regulatory review 
period by November 20, 2007. 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.

[[Page 29173]]

    Comments and petitions should be submitted to the Division of 
Dockets Management. Three copies of any mailed information are to be 
submitted, except that individuals may submit one copy. Comments are to 
be identified with the docket number found in brackets in the heading 
of this document. Comments and petitions may be seen in the Division of 
Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: May 7, 2007.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research.
[FR Doc. E7-10052 Filed 5-23-07; 8:45 am]
BILLING CODE 4160-01-S