[Federal Register Volume 62, Number 18 (Tuesday, January 28, 1997)]
[Notices]
[Pages 4066-4067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2067]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 96E-0379]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; CAMPTOSAR<Register>

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 CAMPTOSAR<Register> 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 drug 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

[[Page 4067]]

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 drug product 
CAMPTOSAR<Register> (irinotecan hydrochloride). CAMPTOSAR<Register> is 
indicated for the treatment of patients with metastatic carcinoma of 
the colon or rectum whose disease has recurred or progressed following 
5-FU based therapy. Subsequent to this approval, the Patent and 
Trademark Office received a patent term restoration application for 
CAMPTOSAR<Register> (U.S. Patent No. 4,604,463) from Kabushiki Kaisha 
Yakult Honsha, and the Patent and Trademark Office requested FDA's 
assistance in determining this patent's eligibility for patent term 
restoration. In a letter dated October 24, 1996, FDA advised the Patent 
and Trademark Office that this human drug product had undergone a 
regulatory review period and that the approval of CAMPTOSAR<Register> 
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 
CAMPTOSAR<Register> is 2,111 days. Of this time, 1,941 days occurred 
during the testing phase of the regulatory review period, while 170 
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: September 
5, 1990. FDA has verified the applicant's claim that the date that the 
investigational new drug application became effective was on September 
5, 1990.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505(b) of the Federal Food, Drug, 
and Cosmetic Act: December 28, 1995. FDA has verified the applicant's 
claim that the new drug application (NDA) for CAMPTOSAR<Register> (NDA 
20-571) was initially submitted on December 28, 1995.
    3. The date the application was approved: June 14, 1996. FDA has 
verified the applicant's claim that NDA 20-571 was approved on June 14, 
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 1,139 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before March 31, 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 July 28, 1997, 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: January 17, 1997.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 97-2067 Filed 1-27-97; 8:45 am]
BILLING CODE 4160-01-F