[Federal Register: January 29, 2004 (Volume 69, Number 19)]
[Page 4305-4306]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Food and Drug Administration

[Docket No. 2003E-0147]

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

AGENCY:  Food and Drug Administration, HHS.

ACTION:  Notice.


SUMMARY:  The Food and Drug Administration (FDA) has determined the 
regulatory review period for FROVA and is publishing this notice of 
that determination as required by law. FDA has made the determination 
because of the submission of two applications to the Director of 
Patents and Trademarks, Department of Commerce, for the extension of 
two patents that 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://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fda.gov/dockets/ecomments.

FOR FURTHER INFORMATION CONTACT: Claudia Grillo, Office of Regulatory 
Policy (HFD-013), Food and Drug Administration, 5600 Fishers Lane, 
Rockville, MD 20857, 240-453-6699.

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 FROVA

[[Page 4306]]

(frovatriptan succinate). FROVA is indicated for the acute treatment of 
migraine attacks with or without aura in adults. Subsequent to this 
approval, the Patent and Trademark Office received two patent term 
restoration applications for FROVA (U.S. Patent Nos. 5,464,864 and 
5,616,603) from Vernalis, Ltd., and the Patent and Trademark Office 
requested FDA's assistance in determining these patents' eligibility 
for patent term restoration. In a letter dated July 16, 2003, FDA 
advised the Patent and Trademark Office that this human drug product 
had undergone a regulatory review period and that the approval of FROVA 
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 
FROVA is 2,201 days. Of this time, 1,186 days occurred during the 
testing phase of the regulatory review period, while 1,015 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: 
November 1, 1995. FDA has verified the applicant's claim that the date 
the investigational new drug application became effective was on 
November 1, 1995.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505(b) of the act: January 29, 
1999. FDA has verified the applicant's claim that the new drug 
application (NDA) for FROVA (NDA 21-006) was initially submitted on 
January 29, 1999.
    3. The date the application was approved: November 8, 2001. FDA has 
verified the applicant's claim that NDA 21-006 was approved on November 
8, 2001.
    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 1,096 days of 
patent term extension for patent 5,464,864 and 586 days of patent term 
extension for patent 5,616,603.
    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 March 29, 2004. 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 July 27, 
2004. 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: January 13, 2004.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research.
[FR Doc. 04-1840 Filed 1-28-04; 8:45 am]