Determination of Regulatory Review Period for Purposes of Patent Extension; AviaxRegister

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. 94E-0221]

Determination of Regulatory Review Period for Purposes of Patent

Extension; Aviax

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 Aviax 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, rm.

1-23, 12420 Parklawn Dr., Rockville, MD 20857.

FOR FURTHER INFORMATION CONTACT: Brian 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 animal drug products, the

testing phase begins on the earlier date when either a major

environmental effects test was initiated for the drug or when an

exemption under section 512(j) of the Federal Food, Drug, and Cosmetic

Act became 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

Aviax (semduramicin sodium). Aviax is indicated for

prevention of coccidiosis in broiler chickens. Subsequent to this

approval, the Patent and Trademark Office received a patent term

restoration application for Aviax (U.S. Patent No. 4,804,680)

from Pfizer Inc. and requested FDA's assistance in determining the

patent's eligibility for patent term restoration. FDA, in a letter

dated July 8, 1994, advised the Patent and Trademark Office that this

animal drug product had undergone a regulatory review period and that

the approval of Aviax 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

Aviax is 2,438 days. Of this time, 736 days occurred during

the testing phase of the regulatory review period, while 1,702 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 became effective: July 9, 1987. The applicant

claims October 1, 1987, as the date the investigational new animal drug

application (INAD) became effective. However, FDA records indicate that

the date of FDA's official acknowledgement letter assigning a number to

the INAD was July 9, 1987, 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 application under section 512(b) of the Federal

Food, Drug, and Cosmetic Act: July 13, 1989. The applicant claims July

12, 1989, as the date the new animal drug application (NADA) for

Aviax (NADA 140-940) was initially submitted. However, a

review of FDA records reveals that the date of FDA's official

acknowledgement letter assigning a number to the NADA was July 13,

1989, which is considered to be the initially submitted date for the

NADA.

3. The date the application was approved: March 10, 1994. FDA has

verified the applicant's claim that NADA 140-940 was approved on March

10, 1994.

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 755 days of

patent term extension.

Anyone with knowledge that any of the dates as published is

incorrect may, on or before November 7, 1994, 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 March 6, 1995, 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: August 25, 1994.

Stuart L. Nightingale,

Associate Commissioner for Health Affairs.

[FR Doc. 94-21789 Filed 9-2-94; 8:45 am]

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