DNAMoney.pngOn June 27, the Massachusetts Biotechnology Council (“MassBio”) featured its second Forum in the series “Adventures in Biotech: Stories of Success (and Failure): A Six-Part Series: June-October 2013, called “Financing the Dream: Avenues for Raising Capital”. The presenters included: Jeff Arnold, President and CEO, Arnold Strategies, LLC; Bernard Davitian, Vice President, Business Development Licensing & Structured Investments, Sanofi-Genzyme BioVentures; Michelle Dipp, M.D., Ph.D., Co-Founder and CEO, OvaScience; and Guy Macdonald, President and CEO, Tetraphase Pharmaceuticals with moderators Marc R. Cote, Chief Operating Officer, Accellient Partners, LLC & Chief Financial Officer, Synchroneuron Inc. and John Hession, Partner, Venture Capital Financings & Emerging Companies Practice Groups, Cooley LLP. Frommer Lawrence & Haug LLP is an active member of MassBio and attended this Forum.

Arnold described the process how “angels do drugs,” for example, repurposing previously-approved therapies for new uses, which may involve lower risk and capital and a clear opportunity for exit. An angel investor or angel (also known as a business angel or informal investor) is an affluent individual who provides capital for a business start-up, usually in exchange for convertible debt or ownership equity. With angel investing, opportunities generally require financings under $5 million with no venture capital in the plan and value-creating milestones early on. Some advantages of angel investing, Arnold explained, are rolling closes with easy follow-ons and more is typically owned at exit. Angel investing, however, requires more investors (40+) that have more involvement than a board member on a venture capital fund. Building a syndicate requires finding a champion and applying to several groups simultaneously with drug candidates in one or more incubators for development. The angel investors are looking for a clear exit strategy, typically within 3-6 years, which often takes longer for pharmaceutical/biotechnology products. On angel money, clinical studies may get as far as phase 2 but never go to all phase 3 studies; at this stage, the projects require big pharmaceutical manufacturer support to continue.

Arnold noted that grant funding, such as grants from the National Institutes of Health (“NIH”), will help to generate interest in the product(s) but obtaining angel money requires frequent and continuous networking. Many prospects will not advance to a true diligence, e.g., there are 8 Mass Medical meetings a year with about a dozen new plans a month; at each meeting there are about 200 proposals evaluated, and three proposals are presented at each meeting with only one advancing to a true diligence.

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On June 27, 2013, the Center for Drug Evaluation and Research (“CDER”) held its popular two-part “CDER Town Hall” at the Drug Information Association’s (“DIA’s”) 49th Annual Meeting at the Boston Convention and Exhibition Center. Highlights of the first day are provided here; highlights of other selected other leading up to the CDER Town Hall on the final day are provided here.

 

 

During the CDER Town Hall, key leaders from CDER were on deck to answer questions from the audience. Below are some of the topics addressed in the second part, which featured from FDA: Gerald J. Dal Pan, M.D., Director, Office of Surveillance and Epidemiology, CDER; John K. Jenkins, M.D., Director, Office of New Drugs, CDER; Justina A. Molzon, J.D., M.Pharm., CAPT, USPHS, Associate Center Director for International Programs, CDER; Christine M.V. Moore, Ph.D., Acting Director, Office of New Drug Quality Assessment, Office of Pharmaceutical Science, CDER, Robert T. O’Neill, Ph.D., Senior Statistical Advisor, Office of Translational Sciences, CDER; and Robert J. Temple, M.D., Deputy Center Director for Clinical Science, CDER.

Clinical Trials

Regarding increasing patient involvement in clinical trials, O’Neill thought that it was long overdue to have patients more involved in the clinical trial process but acknowledged there would be potential logistical issues. For example, current informed consent forms may need to be reevaluated. In addition, the role of subjects needs to be better understood, including provisions for follow up information. Right now, he explained, it is unclear to the extent there are “trial hoppers”, i.e., subjects who drop out and try other experimental products or unblind the study by discovering they are taking the test drug or placebo, and how this affects trial outcomes. Getting patients more involved in the clinical trial process could help to identify these individuals across studies for treatment products for the same indications.
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Boston Convention Center and Exposition Hall.pngOn June 24-27, 2013, the Drug Information Association (“DIA”) held its 49th Annual Meeting at the Boston Convention and Exhibition Center. Highlights of the first day are provided here. DIA’s Annual Meeting continued with a variety of other presentations on topics such as personalized medicine, orphan drugs, developing treatments for Alzheimer’s Disease, biosimilars, and more. Some of topics covered are described below.

Orphan Drugs

One of the themes of the conference was orphan drugs and personalized medicine. To those ends, several speakers advocated for FDA guidance on designing clinical trials for orphan drugs, going from a handful of patients to approval, as well as designing clinical trials for personalized therapies.

Biosimilars

While there are biosimilars in emerging markets, it remains unclear how useful the information would be for product development in the United States. First, many of the biosimilars in emerging markets were approved prior to regulatory rules or guidance in those markets. Second, most of the biosimilar manufacturers in emerging markets have since designed or are working on modifications to their biosimilars, in particular their clinical development plans, to meet the requirements of FDA, the European Medicines Agency (“EMA”), and similar industrialized, regulatory authorities. To the extent biosimilars marketed in emerging countries have been analyzed, there were potency variations in tested epoetins from 48-163% in mice, many had high amount of aggregates, and many failed to meet EMA specifications. But in emerging markets, the innovator counterpart to biosimilars may not be available for comparison, leading to higher patient acceptance and government support, e.g., China has had biosimilars for more than 20 years. In China, however, biosimilars were regulated similar to small molecules until 2007, when China established a China FDA in 2007, which is currently creating a defined pathway for biosimilars under the new regime. Brazil, Mexico, Argentina, India, and Korea also have marketed biosimilar products with varying degrees of regulation and standardization.
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On June 24-27, 2013, the Drug Information Association (“DIA”) held its 49th Annual Meeting at the Boston Convention and Exhibition Center. The DIA President for the coming year, Minnie Baylor-Henry, Worldwide Vice President, Regulatory Affairs, Johnson & Johnson Medical Devices & Diagnostics, described 2013 as the year of the patient, and she hopes to see the focus on patients driving medicine to transform medical care in the coming years. DIA’s Annual Meeting Chair, Susan A. Milligan, J.D., M.D., Vice President, Global Regulatory Therapeutic Area Head, Genentech, Inc. A Member of the Roche Group, challenged meeting attendees to “step out of your comfort zone” and volunteer and think innovatively, act collaboratively, network to build new relationships, and help to improve patient care.

 

 

Along these lines and following the introductory comments, the Annual Meeting kicked off with a Keynote from Daniel Kraft, M.D., Executive Director, FutureMed. Kraft has over 20 years of experience in clinical practice, biomedical research, and healthcare innovation, including some of his own inventions. FutureMed is a program that explores convergent, exponentially, developing technologies and their potential in biomedicine and healthcare. Kraft also recently founded IntelliMedicine, focused on enabling connected, data-driven, and integerated personalized medicine. Kraft’s message to the attendees was that technology is moving medical care exponentially, principally from an information technology perspective.

From Kraft’s perspective, we have already reached the option of personalized medicine by virtue of the types of devices that can be used to collect real-time information from patients to create “dashboards” of information for vital signs to adjust medical care. Kraft demonstrated an example where a heart-rate monitor can provide information to smartphones and a physician’s office to determine what type and dose of medication is appropriate for a particular patient without the need to visit a doctor following periodic consultations. As additional examples, Kraft explained that toy drones can be used to deliver medicine, especially in hard-to-reach areas, and Skype can be used to conduct “mini physicals” via the Internet. In the works, and to some extent already being utilized, are smartpills that can see real-time images of a patient’s gastrointestinal tract and deliver medicine via a smarphone application at precise times rather than relying on previous drug delivery mechanisms such as resident time or pH in the gastrointestinal tract.
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Thumbnail image for supreme court.jpgOn June 24, the U.S. Supreme Court decided to shield generic manufacturers from product liability suits in Mutual Pharmaceutical v. Bartlett. The Court held that a generic manufacturer could not be held liable for a design-defect claim on a small molecule, pharmaceutical product, because the claim was preempted by the Federal Food, Drug, and Cosmetic Act (“FD&C Act”).

Karen Bartlett met with her physician to treat her shoulder pain. Her physician prescribed Clinoril® (suldinac), and she was dispensed a generic version marketed by Mutual Pharmaceuticals (“Mutual”). Unexpectedly, Bartlett suffered a rare and devastating reaction to the drug. Even after months of treatment, she was left severely disfigured and almost entirely blind.

As we blogged previously, Bartlett sued Mutual in New Hampshire under a state design-defect theory of product liability. Like many states, New Hampshire borrowed its design-defect cause of action from the Restatement (Second) of Torts. Under this theory, Bartlett alleged that the active ingredient sulindac was inherently and unreasonably dangerous.
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FLH Partner Brian J. Malkin will be attending the Drug Information Association’s (“DIA’s”) Annual Meeting in Boston, which is being held on June 23-27, 2013. DIA’s Annual Meeting draws more than 7,000 life science professionals from all levels of disciplines involved in the discovery, development, and life cycle of medical products. Mr. Malkin is committed to collaborating with other life science professionals to facilitate innovation that leads to the development of safe and effective medical products and therapies to patients. DIA’s Annual Meeting features over 250 educational programs with over 800 speakers, over 450 exhibitors, and various networking events and lunches to help these life science professionals learn how to perform their roles more effectively and forge new productive relationships. Mr. Malkin looks forward to meeting you there and welcomes individuals or companies wishing a meeting to contact him via e-mail at bmalkin@flhlaw.com.

Thumbnail image for Thumbnail image for orphan drug.bmpOn June 12, 2013, FDA issued a Final Rule amending the 1992 Orphan Drug Regulations to implement the Orphan Drug Act. The Final Rule largely reflects the 2011 Proposed Rule (see our previous blog on the draft rule here) to amend the Orphan Drug Regulations with several changes for clarity and accuracy. FDA explicitly stated that the Final Rule has no effect on the scope of, or eligibility for, orphan-drug-exclusive approval, because it merely clarifies existing and longstanding FDA practices. The Final Rule will take effect on August 12, 2013.

The two most important amendments and clarifications in the final rule are the new definition of “orphan subset” and the various clinical superiority requirements for designation requests and exclusive approvals for a subsequent drug for the same use or indication.

To qualify as an “orphan subset” drug (21 CFR §316.3(b)(13)), the drug sponsor must show that while the drug is safe and effective in the orphan subset population, the drug is not suitable for use in those persons outside of the orphan subset (i.e., those persons who have the same non-rare disease or condition). Such non-suitability must be based on either a pharmacokinetic property (such as toxicity and mechanism of action), or previous clinical experience with the drug.
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supremecourt.pngOn June 17, the U.S. Supreme Court released its decision in the controversial case regarding Hatch-Waxman patent settlements, FTC v. Actavis . In a 5-3 decision the Court held that lower courts reviewing so-called reverse-payment settlement agreements should apply a “rule of reason” antitrust analysis instead of the scope-of-the-patent test or the “quick look” approach, which had been advocated by the Federal Trade Commission (“FTC”). This was the first time the Court weighed in on whether reverse-payment Hatch-Waxman patent settlements between brand and generic pharmaceutical companies were subject to antitrust scrutiny, and, if so, what that level of scrutiny should be. A previous blog on the oral arguments to this case may be found here.

The Court acknowledged the policy that settlement of complex patent litigation is generally preferred, yet then identified five reasons why it believes that the Eleventh Circuit was wrong when it held that the FTC should not have the opportunity to prove its antitrust claims. First, a large reverse payment may risk significant anticompetitive effects. Second, a large reverse payment may not be justified given its anticompetitive effects. Third, the patent holder paying a large or unjustified reverse payment may have market power that permits it to cause potential anticompetitive harm. Fourth, even without litigating the case, a court may be able to determine the likely anticompetitive effects or potential justifications caused by the payment by examining the size of the payment. And fifth, parties are able to settle their patent disputes in other ways without using reverse payments.

FTC brought the case challenging the reverse-payment settlements Solvay (now part of Abbot Laboratories) entered into with a number of generic drug companies that resolved their Hatch-Waxman patent disputes involving Solvay’s AndroGel®–a testosterone-replacement drug. The settlement agreements involved the generics’ agreement to abandon their patent challenges and thereby delay generic entry for nine years. In addition, Solvay made certain payments to the generic manufacturers in exchange for their manufacturing and marketing support.
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Boston Convention Center and Exposition Hall.pngDuring the week of June 24, FLH Partner Brian J. Malkin will be attending the Drug Information Association’s (“DIA’s”) Annual Meeting, which is being held on June 23-27, 2013 in Boston. As in previous years, DIA’s Annual Meeting is expected to host more than 7,000 life science professionals from various levels who cover all disciplines involved in the discovery, development, and life cycle of medical products. Mr. Malkin plans to collaborate and meet with other life science professionals during the Meeting to help facilitate the type of innovation that leads to the development of safe and effective medical products and therapies to patients. This year the Annual Meeting features over 250 educational programs in 22 tracks with over 800 speakers and over 450 exhibitors. The Opening Plenary Session features Daniel Kraft, M.D., Executive Director, FutureMed, a program that explores convergent, exponentially developing technologies and their potential in biomedicine and healthcare.

In addition, during DIA’s Annual Meeting, there will be numerous networking events and lunches to permit the attending life science professionals learn how to perform their roles more effectively and forge new, productive relationships. For example, Mr. Malkin plans to attend the first “Outside the Beltway” Cocktail Reception hosted by the FDA Alumni Association (“FDAAA”). FDAAA’s core mission is to help FDA alumni stay in touch with the issues facing FDA and support the agency’s public health mission through expertise- and experience-sharing, training and outreach opportunities. Membership is open to the thousands of FDA alumni and current employees nationwide. The Reception will be on Tuesday, June 25 from 6-8pm EST at Lucky’s Lounge, 355 Congress Street, Boston.

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Written by Brian J. Malkin

DNApurple.jpgYesterday, the U.S. Supreme Court held that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring.” The Court’s ruling decided the question: “Are human genes patentable?” We have been blogging on this issue for some time now, see for example here, our blog on the oral arguments at the Supreme Court with links to some previous blogs.

Myriad concerns the “discover[y of] the precise location and sequence of what are known as the BRCA1 and BRCA2 genes.” Specifically, Myriad discovered that “[m]utations in these genes can dramatically increase an individual’s risk of developing breast and ovarian cancer.” Myriad subsequently obtained a patent including such claims as “[a]n isolated DNA coding for a BRCA1 polypeptide” that included a specific amino acid sequence. The isolated DNA existed in nature before Myriad found them, the Court noted, and Myriad’s principle contribution involved determining the precise location and genetic sequence of these polypeptides. The Court said that finding the location of the genes does not make the genes themselves patentable, nor does the extensive effort involved in discovering them. Additionally, the Court found that isolating certain DNA from the human genome by severing chemical bonds would be not enough to render the matter patent eligible, because the “claims are simply not expressed in terms of chemical composition, nor do they rely in any way on the chemical changes that result from the isolation of a particular section of DNA.” As a result, the Court held the claims invalid since “genes and the information they encode are not patent eligible under [35 U.S.C.] § 101 simply because they have been isolated from the surrounding genetic material.”

Another issue was whether the cDNA sequence claimed in the patent (as opposed to the full DNA sequence) would be patent-eligible. Here, the Court said that “cDNA cannot be isolated from nature, but instead must be created in the laboratory.” The Court noted that “cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments.” So, even though “cDNA retains the naturally occurring exons of DNA, [] it is distinct from the DNA from which it was derived.” For this reason, the Court concluded, “cDNA is not a ‘product of nature’ and is patent eligible under § 101, except insofar as . . . a short strand of cDNA may be indistinguishable from natural DNA.”
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