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[Federal Register Volume 66, Number 45 (Wednesday, March 7, 2001)]
[Notices]
[Page 13770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-5513]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. 00E-1235]

Determination of Regulatory Review Period for Purposes of Patent 
Extension; Aciphex\TM\

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 Aciphex\TM\ 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: Submit written comments and petitions to the Dockets 
Management Branch (HFA-305), Food and Drug Administration, 5630 Fishers 
Lane, rm. 1061, Rockville, MD 20852.

FOR FURTHER INFORMATION CONTACT: Claudia V. Grillo, Regulatory Policy 
Staff (HFD-007), 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 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 
Aciphex\TM\ (rabeprazole sodium). Aciphex\TM\ is 
indicated for healing of erosive or ulcerative gastroesophageal reflux 
disease (GERD), maintenance of healing of erosive or ulcerative GERD, 
healing of duodenal ulcer, and treatment of pathological hypersecretory 
conditions, including Zollinger-Ellison Syndrome. Subsequent to this 
approval, the Patent and Trademark Office received a patent term 
restoration application for Aciphex\TM\ (U.S. Patent No. 
5,045,552) from Eisai 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 April 12, 2000, FDA advised 
the Patent and Trademark Office that this human drug product had 
undergone a regulatory review period and that the approval of 
Aciphex\TM\ 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 
Aciphex\TM\ is 2,922 days. Of this time, 2,415 days occurred 
during the testing phase of the regulatory review period, while 507 
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: 
August 21, 1991. FDA has verified the applicant's claim that the date 
the investigational new drug application became effective was on August 
21, 1991.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505 of the act: March 31, 1998. 
FDA has verified the applicant's claim that the new drug application 
(NDA) for Aciphex\TM\ (NDA 20-973) was initially submitted 
on March 31, 1998.
    3. The date the application was approved: August 19, 1999. FDA has 
verified the applicant's claim that NDA 20-973 was approved on August 
19, 1999.
    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 1,713 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may submit to the Dockets Management Branch (address above) 
written comments and ask for a redetermination by May 7, 2001. 
Furthermore, any interested person may petition for a determination 
regarding whether the applicant for extension acted with due diligence 
during the regulatory review period by September 4, 2001. 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. Three copies of any 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 Dockets 
Management Branch between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: February 16, 2001.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research.
[FR Doc. 01-5513 Filed 3-6-01; 8:45 am]
BILLING CODE 4160-01-S
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