
[Federal Register: May 14, 2009 (Volume 74, Number 92)]
[Notices]               
[Page 22750-22751]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14my09-43]                         

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket Nos. FDA-2004-E-0266 (formerly 2004E-0446), FDA-2004-E-0270 
(formerly 2004E-0391), and FDA-2004-E-0332 (formerly 2004E-0399)]

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

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 SENSIPAR 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 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://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 human drug products, the 
testing phase begins when the exemption to permit the clinical 
investigations of the human drug product 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 SENSIPAR 
(cinacalcet hydrochloride). SENSIPAR is indicated for the treatment of 
secondary hyperparathyroidism in patients with chronic kidney disease 
on dialysis and for the treatment of hypercalcemia in patients with 
parathyroid carcinoma. Subsequent to this approval, the Patent and 
Trademark Office received patent term restoration applications for 
SENSIPAR (U.S. Patent Nos. 6,011,068; 6,211,244; and 6,313,146) from 
NPS Pharmaceuticals, Inc., and the Patent and Trademark Office 
requested FDA's assistance in determining the patents' eligibilities 
for patent term restoration. In a letter dated October 19, 2004, FDA 
advised the Patent and Trademark Office that this human drug product 
had undergone a regulatory review period and that the approval of 
SENSIPAR 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 
SENSIPAR is 2,089 days. Of this time, 1,906 days occurred during the 
testing phase of the regulatory review period, while 183 days occurred 
during the approval phase. These periods of time were derived from the 
following dates:

[[Page 22751]]

    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: 
June 21, 1998. The applicant claims June 19, 1998, as the date the 
investigational new drug application (IND) became effective. However, 
FDA records indicate that the IND effective date was June 21, 1998, 
which was 30 days after FDA receipt of the IND.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505(b) of the act: September 8, 
2003. The applicant claims September 5, 2003, as the date the new drug 
application (NDA) for SENSIPAR (NDA 21-688) was initially submitted. 
However, FDA records indicate that NDA 21-688 was submitted on 
September 8, 2003, which is considered to be the initially submitted 
date.
    3. The date the application was approved: March 8, 2004. FDA has 
verified the applicant's claim that NDA 21-688 was approved on March 8, 
2004.
    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 449 days of 
patent term extension for U.S. Patent Nos. 6,011,068 and 6,313,146, and 
627 days of patent term extension for U.S. Patent No. 6,211,244.
    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 July 13, 2009. 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 November 10, 
2009. 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: April 6, 2009.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research
[FR Doc. E9-11219 Filed 5-13-09; 8:45 am]

BILLING CODE 4160-01-S
