Practice·September 9, 2026 · 4 min read

The five-unit device never gets a K-number

FD&C Act §520(b) exempts a device from 510(k) and PMA review entirely once a firm caps a device type at five units a year, built to a physician's order for a named patient — and the only paper trail left behind is an annual notice to FDA that never becomes a public record.

By Connor Griggs — Regulatory & Quality Strategist

Almost every device that reaches the U.S. market carries a number that proves FDA looked at it — a K-number, a PMA number, a De Novo grant. The number is the receipt. One legal category of device is built, by design, to never generate one, for as long as the firm making it stays inside a condition most portfolio tools never think to check for.

Five conditions, then a cap

21 CFR 812.3(b) defines a custom device: one that necessarily deviates from a generally available device, or from an applicable performance standard or premarket approval requirement, to comply with an individual physician’s or dentist’s order; is not generally available to or used by other practitioners; is not generally available in finished form for sale or for dispensing on prescription; is not offered for commercial distribution through labeling or advertising; and is intended for a specific patient named in that order, made in a specific form for that patient. Five conditions, all descriptive — none of them, on their own, used to say how many a firm could make.

The Food and Drug Administration Safety and Innovation Act, effective July 9, 2012, added the condition that governs the exemption now: a firm may make no more than five units a year of a particular device type under it, and must notify FDA annually that it did. FDA’s September 2014 guidance spells out how that count is measured and what the annual notice has to contain; a technical amendment in October 2016 brought the regulation’s own text into line with the statute. The cap runs per device type, not per firm — a manufacturer can run several distinct custom-fit product lines in parallel, each one separately capped at five.

Exempt from the review that assigns a number

A device meeting 812.3(b)’s conditions is exempt from premarket notification under section 510(k) and from the performance-standard and premarket-approval requirements of sections 514 and 515 of the FD&C Act. No clearance review runs, so no K-number gets assigned; no approval review runs, so no PMA number does either. The condition keeping the exemption alive is the annual notice — skip it, and devices distributed as “custom” are not exempt after all. But the notice itself is a filing to FDA, not a submission that creates a public database entry. It generates no number of its own.

A 510(k) creates a K-number because FDA reviewed something. A custom device creates nothing to review, and the record shows exactly that — nothing.

The practice

A portfolio or competitor watch built on openFDA’s identifiers — K-number, PMA number, product code tied to a classification order — has nothing to search for a company’s custom-device business, because there is no per-device event that database was ever going to record. Custom orthopedic implants, custom cranial plates, custom dental restorations, custom prosthetics: any of these can be a real, ongoing product line at a competitor, entirely legal, and structurally invisible to a search built around clearance identifiers. That is not a gap in coverage the way a slow-to-update field is a gap. It is zero rows, for the life of the product, by the statute’s own design.

Finding that kind of activity means reading a firm’s own labeling, case studies, and public communications, or asking directly — not searching a clearance database for something the exemption was written to keep out of it. Whether a specific device actually meets 812.3(b)’s conditions, and stays under the five-unit count, is a determination the manufacturer makes for itself and FDA can revisit at inspection; this is regulatory intelligence and method, describing how the exemption works and what it leaves out of the public record, never advice about whether any specific device qualifies for it.

A custom device leaves nothing for FDA Radar to ingest either — per what we monitor and how often, the pipeline reads Federal Register notices, warning letters, recalls, and 510(k) clearances, and none of those fires for a device that was never reviewed in the first place.

Regulatory intelligence, not regulatory advice. This post describes method and published FDA records as of its date; decisions about a specific device belong with your regulatory professional.

Method
The lab is accredited. Not the device.
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Breakthrough is law. STeP is a guidance.
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MDSAP replaces routine. Not for-cause.
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No field on a 510(k) says what it treats
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Discretion is a policy. Exclusion is a statute.
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Designated by one office. Approved by another.
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MedSun sits beside MAUDE, not inside it
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Meeting the criteria isn't a tracking order
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The PMA clock doesn't stop at approval
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The K-number doesn't track today's device
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A MAUDE report proves it was filed
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Not every MDR starts with the manufacturer
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Completed. Not terminated.
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The device-ban list has three entries
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The UDI exception has its own deadline
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MDUFA VI is being negotiated in public
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The inspection manual changed, not the rule
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The count Congress had to legislate
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The small-business rate isn't retroactive
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A detention order has no docket to read
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PMA approvals moved off the Federal Register
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A citizen petition names names
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A market withdrawal isn't a recall
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Not every device letter comes from CDRH
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Closed on one device. Open on the rest.
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No IDE is confirmed until the PMA is
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The remedial-action call sets the clock
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Jurisdiction is a letter, not a field
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An address is not a footprint
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The final rule that isn't final yet
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The special controls aren't in the record
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Exempt from GMP. Not from complaints.
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The notify list isn't the shortage list
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A constraint can't be skipped. A script can.
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No cron sends this. A person does.
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Corrected, not rewritten
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Quiet is a finding, not a default
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The summary is public. The statement isn't.
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A competitor's 513(g) leaves no trace
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An empty response field proves nothing
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A petition is public. Its outcome isn't.
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The panel is a category, not a meeting
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An accessory carries its own classification
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A TPLC report is a category, not a device
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A 522 order is a question, not a verdict
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A PCCP change leaves no new record
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Not every signal becomes a recall
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eSTAR did not remove the acceptance check
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An early alert has no recall number yet
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A consent decree isn't a database row
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The record has no cybersecurity field
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Classification Change is not one event
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Publication date is not effective date
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One event. Many recall numbers.
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Quantity is a sentence, not a number
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How a firm told you is a field too
Method
A RIN outlives the document number
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The docket ID is not the comments
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The 510(k) record doesn't name the predicate
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The 510(k) FDA didn't review first
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The letter FDA doesn't have to post
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Cleared doesn't say which track it took
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The clock stops. The calendar doesn't.
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Why a guessed match never reaches you
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The standards list never names a device
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The guidance isn't in the Federal Register.
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Filtered. Not discarded.
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There are two recall databases, not one
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Breakthrough status is confidential by law
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One MAUDE report is not one malfunction
Method
A supplement number is not a track
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Cleared is not approved
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Nationwide doesn't mean your building
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Not every correction reaches FDA
Method
Registered. Not reviewed.
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Contact ODE is not a pathway
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Almost no recall is FDA-mandated
Method
FDA's device names read like a card catalog
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openFDA is free. It is not unlimited.
Method
GUDID stores the model. Not the box.
Practice
Detention doesn't need a warning letter
Method
A Class I device, a Class I recall
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21 CFR 820 didn't move. Its contents did.
Method
The product code that doesn't exist yet
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The classification posts. The 483 behind it doesn't.
Method
A recall has three dates, and the pipeline had to pick one
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The count is real. The rate is not.
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The firm on the record is not the firm on the box
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Low confidence is an instruction, not a hedge
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The same company, spelled three ways
Practice
A device that was never a medical device
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FDA's warning letters, addressed by column number
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Your regulation has a decimal. FDA's watch doesn't.
Method
Three letters is too short to search for
Practice
Most warning letters never close
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The guidance that skipped the draft
Practice
Ongoing, as of when?
Method
The least interesting fact in a 510(k)
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No recall arrives with a product code attached
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The deadline that doesn't email you
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The warning letter has two dates
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How to monitor FDA without drowning
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Your predicate was recalled. Now what?
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Why no item reaches you without a human