Determination of Regulatory Review Period for Purposes of Patent Extension: LUSEDRA

Federal Register: April 5, 2010 (Volume 75, Number 64)

Notices

Page 17142-17143

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr05ap10-60

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

Docket Nos. FDA-2009-E-0202 and FDA-2009-E-0204

Determination of Regulatory Review Period for Purposes of Patent

Extension; LUSEDRA

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

SUMMARY: The Food and Drug Administration (FDA) has determined the regulatory review period for

Page 17143

LUSEDRA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director 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 Division of

Dockets Management (HFA-305), Food and Drug Administration, 5630

Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of Regulatory

Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 6222, Silver Spring, MD 20993-0002, 301-796-3602.

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 Director 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 LUSEDRA

(fospropofol disodium). LUSEDRA is a sedative-hypnotic agent indicated for monitored anesthesia care sedation in adult patients undergoing diagnostic or therapeutic procedures. Subsequent to this approval, the

Patent and Trademark Office received patent term restoration applications for LUSEDRA (U.S. Patent Nos. 6,204,257 and 6,872,838) from University of Kansas, and the Patent and Trademark Office requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated September 29, 2009, FDA advised the Patent and Trademark Office that this human drug product had undergone a regulatory review period and that the approval of

LUSEDRA represented the first permitted commercial marketing or use of the product. 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

LUSEDRA is 2,405 days. Of this time, 1,962 days occurred during the testing phase of the regulatory review period, while 443 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 (the act) (21 U.S.C. 355(i)) became effective:

May 15, 2002. FDA has verified the applicant's claim that the date the investigational new drug application became effective was on May 15, 2002. 2. The date the application was initially submitted with respect to the human drug product under section 505(b) of the act: September 27, 2007. FDA has verified the applicant's claim that the new drug application (NDA) 22-244 was submitted on September 27, 2007. 3. The date the application was approved: December 12, 2008. FDA has verified the applicant's claim that NDA 22-244 was approved on

December 12, 2008.

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 applications for patent extension, this applicant seeks 1,424 days of patent term extension for patent no. 6,204,257 and 899 days of patent term extension for patent no. 6,872,838.

Anyone with knowledge that any of the dates as published are incorrect may submit to the Division of Dockets Management (see

ADDRESSES) written or electronic comments and ask for a redetermination by June 4, 2010. Furthermore, any interested person may petition FDA for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period by October 4, 2010. 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 Division of

Dockets Management. Three copies of any mailed 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 Division of

Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

Dated: March 22, 2010.

Jane A. Axelrad,

Associate Director for Policy, Center for Drug Evaluation and Research.

FR Doc. 2010-7516 Filed 4-2-10; 8:45 am

BILLING CODE 4160-01-S