Determination of Regulatory Review Period for Purposes of Patent Extension; SemprexSUPTM-D Capsules

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. 94E-0235]

Determination of Regulatory Review Period for Purposes of Patent

Extension; SemprexTM-D Capsules

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 SemprexTM-D Capsules 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

SemprexTM-D Capsules. SemprexTM-D Capsules (acrivastine and

pseudoephedrine hydrochloride) is indicated for relief of symptoms

associated with seasonal allergic rhinitis such as sneezing,

rhinorrhea, pruritus, lacrimation, and nasal congestion. Subsequent to

this approval, the Patent and Trademark Office received a patent term

restoration application for SemprexTM-D Capsules (U.S. Patent No.

4,650,807) from Burroughs Wellcome Co., and the Patent and Trademark

Office requested FDA's assistance in determining this patent's

eligibility for patent term restoration. FDA, in a letter dated July 8,

1994, advised the Patent and Trademark Office that this human drug

product had undergone a regulatory review period and that the approval

of SemprexTM-D Capsules 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

SemprexTM-D Capsules is 3,489 days. Of this time, 1,210 days

occurred during the testing phase of the regulatory review period,

while 2,279 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 became effective: September 6, 1984. The

Applicant claims August 13, 1984, as the date the investigational new

drug application (IND) became effective. However, FDA records indicate

that the IND effective date was September 6, 1984, which was 30 days

after FDA receipt of the IND.

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: December 29, 1987. FDA has verified the applicant's

claim that the New Drug Application (NDA) for SemprexTM-D Capsules

(NDA 19-806) was initially submitted on December 29, 1987.

3. The date the application was approved: March 25, 1994. FDA has

verified the applicant's claim that NDA 19-806 was approved on March

25, 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 1,469 days of

patent term extension.

Anyone with knowledge that any of the dates as published is

incorrect may, on or before November 21, 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 20, 1994, 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: September 12, 1994.

Stuart L. Nightingale,

Associate Commissioner for Health Affairs.

[FR Doc. 94-23276 Filed 9-20-94; 8:45 am]

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