Federal Register, Volume 60 Issue 235 (Thursday, December 7, 1995)

[Federal Register Volume 60, Number 235 (Thursday, December 7, 1995)]
[Notices]
[Pages 62866-62867]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29769]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES
[Docket No. 95E-0299]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; ZINECARD^{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 ZINECARD^{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: 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 
ZINECARD^{TM (dexrazoxane). ZINECARD^{TM is indicated for 
reducing the incidence and severity of cardomyopathy associated with 
doxorubicin administration in women with metastatic breast cancer who 
have received a cumulative doxorubicin dose of 300 milligrams per 
square meter and who, in their physician's opinion, would benefit from 
continuing therapy with doxorubicin. Subsequent to this approval, the 
Patent and Trademark Office received a patent term restoration 
application for ZINECARD^{TM (U.S. Patent No. 4,275,063) from 
British Technology Group 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 October 5, 1995, FDA advised 
the Patent and Trademark Office that this human drug product had 
undergone a regulatory review period and that the approval of 
ZINECARD^{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 
ZINECARD^{TM is 2,748 days. Of this time, 1,546 days occurred during 
the testing phase of the regulatory review period, while 1,202 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 (21 U.S.C. 355(i)) became effective: November 
18, 1987. The applicant claims September 25, 1987, as the date the 
investigational new drug application (IND) for ZINECARD^{TM (IND 
30,617) became effective. However, FDA records indicate that the agency 
received IND 30,617 on September 22, 1987. IND 30,617 was placed on 
clinical hold on October 22, 1987, and was removed from hold on 
November 18, 1987. The date IND 30,617 was removed from hold, November 
18, 1987, is the IND effective date.
    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: February 10, 1992. The applicant claims February 7, 
1992, as the date the new drug application (NDA) for ZINECARD^{TM 
(NDA 20-212) was initially submitted. However, FDA records indicate 
that FDA received NDA 20-212 on February 10, 1992, making February 10, 
1992, the beginning of the NDA regulatory review period.
    3. The date the application was approved: May 26, 1995. FDA has 
verified the applicant's claim that NDA 20-212 was approved on May 26, 
1995.
    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 1,825 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published is 
incorrect may, on or before February 5, 1996, 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 June 5, 1996, 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 

[[Page 62867]]
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: November 30, 1995.
Stuart L. Nightingale,
Associate Commissioner for Health Affairs.
[FR Doc. 95-29769 Filed 12-6-95; 8:45 am]
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