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Legislative Implementation of Flexibilities - Bulgaria

Title:Articles 32, 32a, 66 and 74c of the Patent Law No. 27/2 of 1993 as last amended by Law No. 59/20 of July 2007
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Article 32

(1) Any person concerned, who has unsuccessfully tried to get a contractual license from the holder under fair conditions, may request the Patent Office to grant him a compulsory license to use the invention, provided that at least one of the following conditions is met:

1. failure to use the invention for a period of four years from filing of the patent application or three years from the grant of a patent, the time limit which expires later being applicable;

2. insufficient working of the invention to satisfy the needs of the national market, within the time limits set out in item 1 above, unless the patent owner gives valid reasons therefor.

(2) The person requesting a license under the preceding paragraph shall be required to prove that he is in a position to work the invention within the limits of the compulsory license requested.

(3) Beyond the cases referred to in paragraph (1), a compulsory license may be granted, where demanded by the public interest, without negotiating with the holder of the right in the invention enjoying patent protection.

(4) A compulsory license may be granted to a holder, whose invention is the subject matter of a later patent and is included in the scope of another, earlier patent, if the owner of the earlier patent refuses to grant a license under fair conditions, where the subject matter of the later patent represents significant technical progress of great economic importance compared to the subject matter of the earlier patent.

The owner of the earlier patent shall be entitled to a cross license under reasonable conditions for working the invention claimed in the later patent.

(5) A compulsory license may only be non-exclusive. It may only be assigned together with the enterprise in which the licensed invention is being worked.

(6) A compulsory license may be terminated if within one year of its grant the licensee has made no preparation for working the invention. A compulsory license shall be terminated in all cases if the licensee fails to start working the invention within two years of grant.

(7) The scope of a compulsory license shall be determined by the purpose it was granted for.

(8) A compulsory license shall not be granted to an infringer of the patent.

(9) Bilateral and multilateral treaties to which the Republic of Bulgaria is a party may lay down further conditions for the grant of a compulsory license to patent owners from States party to such treaties.

(10) The compulsory licensee shall owe the patent owner remuneration.

(11) A compulsory license shall be terminated as soon as the ground therefore no longer exists.

(12) The procedure of granting and terminating compulsory licenses shall be specified in the Regulation referred to in Article 55(3).

Compulsory Cross-License

Article 32a

(1) Where a breeder cannot obtain or use the right in a plant variety without infringing an earlier patent, he may apply for a compulsory license for non-exclusive use of the invention enjoying patent protection, in so far as the license is required for using the plant variety for the purposes of its legal protection, subject to the payment of a respective remuneration. Where such a license is granted, the patent owner shall be entitled to a cross-license for using the protected plant variety under fair conditions.

(2) Where the owner of a patent for a biotechnological invention cannot use it without infringing an earlier plant variety right, he may apply for a compulsory license for non-exclusive use of the protected plant variety, subject to the payment of a respective remuneration. Where such a license is granted, the protected variety owner shall be entitled to get a cross-license for using the invention under fair conditions.

(3) The person applying for the grant of a compulsory license according to paragraphs (1) and (2) shall prove that:

1. he has tried unsuccessfully to get a contractual license from the patent or plant variety

owner;

2. the plant variety or the invention represents significant technical progress of great economic

importance compared to the patented invention or the protected plant variety.

Compulsory License

Article 74c

(1) A compulsory license shall be granted to a utility model owner, where the utility model cannot be used without infringing the right in another utility model the owner of which refuses to grant a license under fair conditions.

(2) A compulsory license shall be granted to a patent owner, where the invention according to the patent cannot be used without infringing the right in a utility model the owner of which refuses to grant a license under fair conditions.

(3) The compulsory license treatment under Article 32 shall equally apply to registered utility models.

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