[Federal Register Volume 61, Number 1 (Tuesday, January 2, 1996)]
[Notices]
[Pages 73-74]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31555]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 95E-0303]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; ADENOSCAN<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 ADENOSCAN<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, rm. 
1-23, 12420 Parklawn Dr., 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 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 
ADENOSCAN<Register> (adenosine). ADENOSCAN<Register> is indicated as an 
adjunct to thallium-201 myocardial perfusion scintigraphy in patients 
unable to exercise adequately. Subsequent to this approval, the Patent 
and Trademark Office received a patent term restoration application for 
ADENOSCAN<Register> (U.S. Patent No. 5,070,877) from Medco Research, 
Inc., and the Patent and Trademark Office requested FDA's assistance in 
determining this patent's eligibility for patent term restoration. In a 
letter dated September 25, 1995, FDA advised the Patent and Trademark 
Office that this 

[[Page 74]]
human drug product had undergone a regulatory review period and that 
the approval of ADENOSCAN<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 
ADENOSCAN<Register> is 2,688 days. Of this time, 768 days occurred 
during the testing phase of the regulatory review period, while 1,920 
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: January 9, 
1988. The applicant claims December 10, 1987, as the date the 
investigational new drug application (IND) became effective. However, 
FDA records indicate that the IND effective date was January 9, 1988, 
which was 30 days after FDA receipt of the IND on December 10, 1987.
    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: February 14, 1990. The applicant claims February 9, 
1990, as the date the new drug application (NDA) for 
ADENOSCAN<Register> (NDA 20-059) was initially submitted. However, 
while FDA records indicate that the applicant submitted NDA 20-059 on 
February 9, 1990, FDA received the NDA on February 14, 1990, which is 
considered to be the date the NDA was initially submitted.
    3. The date the human drug was approved: May 18, 1995. FDA has 
verified the applicant's claim that NDA-059 was approved on May 18, 
1995.
    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 159 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before March 4, 1996, 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 1, 1996, 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: December 21, 1995.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 95-31555 Filed 12-29-95; 8:45 am]
BILLING CODE 4160-01-F