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

###### Food and Drug Administration

          - [Docket No. 1997E-0013]

# AGENCY:

 Food and Drug Administration, HHS.

# ACTION:

 Notice.

# SUMMARY:

 The Food and Drug Administration (FDA) has determined the regulatory review period for RETEVASE 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 biological product.

# ADDRESSES:

                         Submit written comments and petitions to the Division of Dockets                               ( print page 14819)                            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-7), 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 biological products, the testing phase begins when the exemption to permit the clinical investigations of the biological 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 biological product and continues until FDA grants permission to market the biological 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 biological product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).

FDA approved for marketing the human biological product RETEVASE (reteplase). RETEVASE is indicated in the management of acute myocardial infarction (AMI) in adults for the improvement of ventricular function following AMI, the reduction of the incidence of congestive heart failure and the reduction of mortality associated with AMI. Subsequent to this approval, the Patent and Trademark Office received a patent term restoration application for RETEVASE (U.S. Patent No. 5,223,256) from Boehringer Mannheim GmbH, and the Patent and Trademark Office requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated February 6, 1997, FDA advised the Patent and Trademark Office that this human biological product had undergone a regulatory review period and that the approval of RETEVASE represented the first permitted commercial marketing or use of the product. On September 14, 2006, 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 RETEVASE is 1,919 days. Of this time, 1,430 days occurred during the testing phase of the regulatory review period, while 489 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*: August 1, 1991. The applicant claims July 1, 1991, as the date the investigational new drug application (IND) became effective. However, FDA records indicate that the IND effective date was August 1, 1991, which was 30 days after FDA receipt of the IND.                

                    2.                     *The date the application was initially submitted with respect to the human biological product under section 351 of the Public Health Service Act (42 U.S.C. 262)*: June 30, 1995. FDA has verified the applicant's claim that the product license application (PLA) for Retevase (PLA 95-1167) was initially submitted on June 30, 1995. The PLA was renumbered as biologics license application (BLA) 103632/0.                

                    3.                     *The date the application was approved*: October 30, 1996. The applicant claims October 29, 1996, as the date the PLA was approved. However, FDA records indicate that PLA 95-1167 (BLA 103632/0) was approved on October 30, 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 123 days of patent term extension.

                    Anyone with knowledge that any of the dates as published is incorrect may submit to the Division of Dockets Management (see                     **ADDRESSES**                    ) written or electronic comments and ask for a redetermination by May 29, 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 September 25, 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.                

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: March 12, 2007.

Jane A. Axelrad,

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

[FR Doc. E7-5736 Filed 3-28-07; 8:45 am]

BILLING CODE 4160-01-S