[Federal Register Volume 63, Number 136 (Thursday, July 16, 1998)]
[Notices]
[Pages 38410-38411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18878]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration
[Docket No. 97E-0271]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; PANDEL Cream

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 PANDEL Cream 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, 5630 
Fishers Lane, rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Brian J. Malkin, Office of Health 
Affairs (HFY-20), Food and Drug Administration, 5600 Fishers Lane, 
Rockville, MD 20857, 301-827-6620.

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 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

[[Page 38411]]

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 PANDEL 
Cream (hydrocortisone buteprate). PANDEL Cream is indicated for the 
relief of the inflammatory and pruritic manifestations of 
corticosteroid-responsive dermatoses in patients 18 years of age or 
older. Subsequent to this approval, the Patent and Trademark Office 
received a patent term restoration application for PANDEL Cream (U.S. 
Patent No. 4,290,962) from Taisho Pharmaceutical Co. Ltd., 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 18, 1997, FDA advised the Patent and Trademark Office that 
this human drug product had undergone a regulatory review period and 
that the approval of PANDEL Cream 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 
PANDEL Cream is 4,165 days. Of this time, 3,078 days occurred during 
the testing phase of the regulatory review period, 1,087 days occurred 
during the approval phase. These periods of time were derived from the 
following dates:
    1. The date an exemption under section 505 of the Federal Food, 
Drug, and Cosmetic Act (the act) (21 U.S.C. 355) became effective: 
October 6, 1985. FDA has verified the applicant's claim that the date 
the investigational new drug application became effective was on 
October 6, 1985.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505 of the act: March 10, 1994. 
The applicant claims March 1, 1994, as the date the new drug 
application (NDA) for PANDEL Cream (NDA 20-453) was initially 
submitted. However, FDA records indicate that NDA 20-453 was submitted 
on March 10, 1994.
    3. The date the application was approved: February 28, 1997. FDA 
has verified the applicant's claim that NDA 20-453 was approved on 
February 28, 1997.
    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 1,096 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before September 14, 1998, 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 January 12, 1999, 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: June 23, 1998.
Thomas J. McGinnis,
Deputy Associate Commissioner for Health Affairs.
[FR Doc. 98-18878 Filed 7-15-98; 8:45 am]
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