[Federal Register Volume 63, Number 149 (Tuesday, August 4, 1998)]
[Notices]
[Pages 41578-41579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20708]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration
[Docket No. 97E-0338]


Determination of Regulatory Review Period for Purposes of Patent 
Extension: Anipryl<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 Anipryl<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 animal 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 animal 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 animal 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 an animal drug product will include all of the testing phase 
and approval phase as specified in 35 U.S.C. 156(g)(4)(B).
    FDA recently approved for marketing the animal drug product 
Anipryl<Register> (selegiline hydrochloride). Anipryl<Register> is 
indicated for the control of clinical signs associated with 
uncomplicated canine pituitary-dependent hyperadrenocorticism (PDH). 
Subsequent to this approval, the Patent and Trademark Office received a 
patent term restoration application for Anipryl<Register> (U.S. Patent 
No. 5,192,808) from Deprenyl Animal Health, Inc., and requested FDA's 
assistance in determining this patent's eligibility for

[[Page 41579]]

patent term restoration. In a letter dated November 7, 1997, FDA 
advised the Patent and Trademark Office that this animal drug product 
had undergone a regulatory review period and that the approval of 
Anipryl<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 
Anipryl<Register> is 2,329 days. Of this time, 2,275 days occurred 
during the testing phase of the regulatory review period, 54 days 
occurred during the approval phase. These periods of time were derived 
from the following dates:
    1. The date an exemption under section 512(j) of the Federal Food, 
Drug, and Cosmetic Act (the act) (21 U.S.C. 360b(j)) became effective: 
January 15, 1991. The applicant claims December 21, 1990, as the date 
the investigational new animal drug application (INAD) became 
effective. However, FDA records indicate that the date of FDA's letter 
assigning a number to the INAD was January 15, 1991, which is 
considered to be the effective date for the INAD.
    2. The date the application was initially submitted with respect to 
the animal drug product under section 512(b) of the act: April 7, 1997. 
The applicant claims April 2, 1997, as the date the new animal drug 
application (NADA) for Anipryl<Register> (NADA 141-080) was initially 
submitted. However, a review of FDA records reveals that the date of 
FDA's official acknowledgement letter assigning a number to NADA 141-
080 was April 7, 1997, which is considered to be the initially 
submitted date for NADA 141-080.
    3. The date the application was approved: May 30, 1997. FDA has 
verified the applicant's claim that NADA 141-080 was approved on May 
30, 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 448 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before October 5, 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 February 1, 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: July 8, 1998.
Thomas J. McGinnis,
Deputy Associate Commissioner for Health Affairs.
[FR Doc. 98-20708 Filed 8-3-98; 8:45 am]
BILLING CODE 4160-01-F