Determination of Regulatory Review Period for Purposes of Patent Extension; Arcapta Neohaler, 33761 [2014-13638]

Agencies

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

[Federal Register Volume 79, Number 113 (Thursday, June 12, 2014)]
[Notices]
[Page 33761]
From the Federal Register Online via the Government Printing 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 https://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 https://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 
https://www.regulations.gov, Docket No. FDA-2013-S-0610. Comments and 
petitions that have not been made publicly available on https://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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