[Federal Register Volume 79, Number 113 (Thursday, June 12, 2014)]
[Notices]
[Page 33761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13638]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
[Docket No. FDA-2012-E-0157]
Determination of Regulatory Review Period for Purposes of Patent
Extension; Arcapta Neohaler
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 Arcapta Neohaler 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
Director of the U.S. Patent and Trademark Office (USPTO), Department of
Commerce, for the extension of a patent which claims that human drug
product.
ADDRESSES: Submit electronic comments to http://www.regulations.gov.
Submit written petitions (two copies are required) and written comments
to the Division of Dockets Management (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
Submit petitions electronically to http://www.regulations.gov at Docket
No. FDA-2013-S-0610.
FOR FURTHER INFORMATION CONTACT: Beverly Friedman, Office of
Management, Food and Drug Administration, 10903 New Hampshire Ave.,
Bldg. 51, Rm. 6257, Silver Spring, MD 20993-0002, 301-796-7900.
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 Director of USPTO 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 has approved for marketing the human drug product Arcapta
Neohaler (indacaterol maleate). Arcapta Neohaler is indicated for long
term, once-daily maintenance bronchodilator treatment of airflow
obstruction in patients with chronic obstructive pulmonary disease,
including chronic bronchitis and/or emphysema. Subsequent to this
approval, the Patent and Trademark Office received a patent term
restoration application for Arcapta Neohaler (U.S. Patent No.
6,878,721) from Novartis AG, and USPTO requested FDA's assistance in
determining this patent's eligibility for patent term restoration. In a
letter dated July 9, 2012, FDA advised USPTO that this human drug
product had undergone a regulatory review period and that the approval
of Arcapta Neohaler represented the first permitted commercial
marketing or use of the product. Thereafter, USPTO requested that FDA
determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for
Arcapta Neohaler is 3,097 days. Of this time, 2,171 days occurred
during the testing phase of the regulatory review period, while 926
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 FD&C Act) (21 U.S.C. 355(i)) became
effective: January 9, 2003. FDA has verified the applicant's claim that
the date the investigational new drug application became effective was
on January 9, 2003.
2. The date the application was initially submitted with respect to
the human drug product under section 505(b) of the FD&C Act: December
18, 2008. The applicant claims December 19, 2008, as the date the new
drug application (NDA) for Arcapta Neohaler (NDA 22-383) was initially
submitted. However, FDA records indicate that NDA 22-383 was submitted
on December 18, 2008.
3. The date the application was approved: July 1, 2011. FDA has
verified the applicant's claim that NDA 22-383 was approved on July 1,
2011.
This determination of the regulatory review period establishes the
maximum potential length of a patent extension. However, USPTO applies
several statutory limitations in its calculations of the actual period
for patent extension. In its application for patent extension, this
applicant seeks 1,597 days of patent term extension.
Anyone with knowledge that any of the dates as published are
incorrect may submit to the Division of Dockets Management (see
ADDRESSES) either electronic or written comments and ask for a
redetermination by August 11, 2014. 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 December 9, 2014. 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.
Interested persons may submit to the Division of Dockets Management
(see ADDRESSES) electronic or written comments and written or
electronic petitions. It is only necessary to send one set of comments.
Identify comments with the docket number found in brackets in the
heading of this document. If you submit a written petition, two copies
are required. A petition submitted electronically must be submitted to
http://www.regulations.gov, Docket No. FDA-2013-S-0610. Comments and
petitions that have not been made publicly available on http://www.regulations.gov may be viewed in the Division of Dockets Management
between 9 a.m. and 4 p.m., Monday through Friday.
Dated: June 5, 2014.
Leslie Kux,
Assistant Commissioner for Policy.
[FR Doc. 2014-13638 Filed 6-11-14; 8:45 am]
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