Determination of Regulatory Review Period for Purposes of Patent Extension; ACRYSOF, 17985-17986 [E8-6851]

Agencies

• Food and Drug Administration
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 73, Number 64 (Wednesday, April 2, 2008)]
[Notices]
[Pages 17985-17986]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6851]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2008-E-0203] (formerly Docket No. 2003E-0402)


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

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 ACRYSOF 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 Patents 
and Trademarks, Department of Commerce, for the extension of a patent 
which claims that medical device.

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 https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Beverly Friedman,Office of Regulatory 
Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 
51, rm. 6222, Silver Spring, MD 20993-0002, 301-796-3602.

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 medical devices, the testing 
phase begins with a clinical investigation of the device and runs until 
the approval phase begins. The approval phase starts with the initial 
submission of an application to market the device and continues until 
permission to market the device is granted. 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 (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 medical device will include 
all of the testing phase and approval phase as specified in 35 U.S.C. 
156(g)(3)(B).
    FDA approved for marketing the medical device ACRYSOF. ACRYSOF is 
indicated for replacement of the human lens to achieve visual 
correction of aphakia in adults when extracapsular cataract extraction 
or phacoemulsification are performed. These lenses are intended for 
placement in the capsular bag. Subsequent to this approval, the Patent 
and Trademark Office received a patent term restoration application for 
ACRYSOF (U.S. Patent No. 5,470,932) from Alcon Manufacturing, 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 April 6, 2004, FDA advised the Patent and Trademark Office 
that this medical device had undergone a regulatory review period and 
that the approval of ACRYSOF represented the first permitted commercial 
marketing or use of the product. 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 
ACRYSOF is 1,084 days. Of this time, 538 days occurred during the 
testing phase of the regulatory review period, while 546 days occurred 
during the approval phase. These periods of time were derived from the 
following dates:

[[Page 17986]]

    1. The date an exemption under section 520(g) of the Federal Food, 
Drug, and Cosmetic Act (the act) (21 U.S.C. 360j(g)) involving this 
device became effective: July 7, 2000. The applicant claims that the 
investigational device exemption (IDE) required under section 520(g) of 
the act for human tests to begin became effective on June 8, 2000. 
However, FDA records indicate that the IDE was determined substantially 
complete for clinical studies to have begun on July 7, 2000, which 
represents the IDE effective date.
    2. The date an application was initially submitted with respect to 
the device under section 515 of the act (21 U.S.C. 360e): December 26, 
2001. The applicant claims December 21, 2001, as the date the premarket 
approval application (PMA) for ACRYSOF (PMA P930014/S009) was initially 
submitted. However, FDA records indicate that PMA P930014/S009 was 
submitted on December 26, 2001.
    3. The date the application was approved: June 24, 2003. FDA has 
verified the applicant's claim that PMA P930014/S009 was approved on 
June 24, 2003.
    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 832 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) written or electronic comments and ask for a redetermination 
by June 2, 2008. 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 September 29, 
2008. 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: November 16, 2007.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research.
[FR Doc. E8-6851 Filed 4-1-08; 8:45 am]
BILLING CODE 4160-01-S