On April 2, 2019, FDA released a discussion paper entitled “Regulatory Framework for Modifications to Artificial Intelligence/Machine Learning (AI/ML)-Based Software as a Medical Device (SaMD)” (the “AI Framework”). The AI Framework is the Agency’s first policy document describing a potential regulatory approach for medical devices that use artificial intelligence (“AI”) and machine learning (“ML”). The AI Framework does not establish new requirements or an official policy, but rather was released by FDA to seek early input prior to the development of a draft guidance. FDA acknowledges that the approach “may require additional statutory authority to implement fully.”

In an accompanying press release, former FDA Commissioner Scott Gottlieb outlined the need for a “more tailored” regulatory paradigm for algorithms that learn and adapt in the real world. FDA’s medical device regulation scheme was not designed for dynamic machine learning algorithms, as the Agency traditionally encounters products that are static at the time of FDA review. The AI Framework is FDA’s attempt to develop “an appropriate framework that allows the software to evolve in ways to improve its performance while ensuring that changes meet [FDA’s] gold standard for safety and effectiveness throughout the product’s lifecycle.”
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On January 3, 2019, the National Medical Products Administration (“NMPA”) published a draft standalone software appendix of medical device good manufacturing practice (“Draft Standalone Software GMP” or “Draft Appendix”) for public comment (available here).  Comments are due on January 30, 2019.

China revised its medical device GMP in 2014, which apply to all classes of devices regardless of whether they are imported or made in China.  Subsequently, NMPA added various appendices (fulu) to articulate special requirements for certain types of devices, including sterile, implantable, and in vitro diagnostic devices.    The Draft Appendix sets out proposed special requirements for software that falls under the definition of medical device.

In China, the definition of a medical device covers software that either itself constitutes a device (i.e., standalone software) or is an accessory/component of a device (i.e., component software).  The Draft Standalone Software GMP expressly applies to standalone software and it states that it applies, “by reference,” (mutatis mutandis) to component software.  If finalized, the Draft Standalone Software GMP would be effective on an undetermined date in 2020.

The Draft Appendix is a relatively simple document with four main sections:

  • scope and general principles of the Draft Appendix ;
  • special requirements for various aspects of the manufacturing and post-market processes (see below);
  • definitions of key terms; and
  • miscellaneous provisions.

Key features of the Draft Standalone Software GMP include the following:

Continue Reading NMPA Releases Draft Good Manufacturing Practice Appendix on Standalone Software