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###### Department of Health and Human Services

###### Food and Drug Administration

          - [Docket No. 2003E-0081]

# AGENCY:

Food and Drug Administration, HHS.

# ACTION:

Notice.

# SUMMARY:

The Food and Drug Administration (FDA) has determined the regulatory review period for ORTHO-EVRA 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 that 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:

Claudia V. Grillo, Office of Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD  20857, 240-453-6699.

# 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 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 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 ORTHO-EVRA (norelgestromin/ethinyl estradiol transdermal system).  ORTHO-EVRA is indicated for the prevention of pregnancy.  Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for ORTHO-EVRA (U.S. Patent No. 5,876,746) from Johnson and Johnson, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration.  In a letter dated July 16, 2003, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of ORTHO-EVRA 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 ORTHO-EVRA is 2,001 days.  Of this time, 1,666 days occurred during the testing phase of the regulatory review period, while 335 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:*                     May 31, 1996.  The applicant claims May 30, 1996, as the date the investigational new drug application (IND) became effective.  However, FDA records indicate that the IND effective date was May 31, 1996, which was 30 days after FDA receipt of the IND.                

                    2.                     *The date the application was initially submitted with respect to the human drug product under section 505 of the act:*                     December 21, 2000.  FDA has verified the applicant's claim that the new drug application (NDA) for ORTHO-EVRA (NDA 21-180) was initially submitted on December 21, 2000.                

                    3.                     *The date the application was approved:*                     November 20, 2001.  FDA has verified the applicant's claim that NDA                           ( print page 5860)                        21-180 was approved on November 20, 2001.                

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 664 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 comments or electronic comments and ask for a redetermination by April 6, 2004.  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 August 4, 2004.  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 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: January 13, 2004.

Jane A. Axelrad,

Associate Director for Policy, Center for Drug Evaluation and Research.

[FR Doc. 04-2547 Filed 2-5-04; 8:45 am]

BILLING CODE 4160-01-S