RESTRICTEDWORLD TRADE
ORGANIZATIONIP/Q3/BGR/1
22 January 1998
(98-0221)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION IN THE FIELDS OF PATENTS, LAYOUT-DESIGNS
(TOPOGRAPHIES) OF INTEGRATED CIRCUITS, PROTECTION OF
UNDISCLOSED INFORMATION AND CONTROL OF
ANTI-COMPETITIVE PRACTICES IN
CONTRACTUAL LICENCES
Bulgaria1
The present document reproduces the introductory statement made by the delegation of
Bulgaria, the questions put to it and the responses given in the review of legislation on patents, layout-
designs (topographies) of integrated circuits, protection of undisclosed information and control ofanti-competitive practices in contractual licences at the Council's meeting of 26-30 May 1997.
2
_______________
I. INTRODUCTORY STATEMENT
My delegation is honoured to participate in the meeting of the Council for TRIPS today,
which undertakes the timely exercise to review the legislation of WTO members in the fields of
patents, protection of plant varieties, layout designs (topographies) of integrated circuits, protection of
undisclosed information and anti-competitive practices in contractual licences.
As you are well aware, the Republic of Bulgaria became a Member of WTO on
1 December 1996 and the present review of the intellectual property legislation is the first exercise of
that kind the Bulgarian delegation is taking part in.
I should like to draw your attention to the fact that in the Protocol of accession to WTO the
Bulgarian Government committed itself that it would apply the provisions of the Agreement on
Trade-Related Aspects of Intellectual Property Rights by the date of accession of Bulgaria to WTO,without recourse to any transitional period.  In pursuance of that obligation Bulgaria notified its laws
and regulations under Article 63.2 of the TRIPS Agreement.
Before presenting briefly to you the structure of Bulgarian legislation in the areas of
intellectual property protection, which are subject to the present review exercise, I should like to
emphasize that the legislation of Bulgaria in the fields of patents, protection of plant varieties,
protection of undisclosed information and anti-competitive practices in contractual licences is
                                                     
1 As regards laws and regulations relevant to the areas under review and notified by Bulgaria under
Article 63.2 of the Agreement, reference is made to documents IP/N/1/BGR/1, IP/N/1/BGR/P/1-2,IP/N/1/BGR/U/1.
2 The minutes of the meeting have been circulated in document IP/C/M/13.IP/Q3/BGR/1
Page 2
relatively new and reflects the transformation of the national legal system to the requirements of
market economy - the Patent Law was enacted in 1993, the Law on the Protection of Competition was
enacted in 1991 and the Law on the Protection of Plant Varieties and Animal Breeds entered into
force on 4 January 1997.
The main pillar of the Bulgarian legislation in th e field of patents is the Patent Law.  The law
entered into force on 1 July 1993 and introduced profound changes in our legislation, namely:
- the protection of inventions by inventor's certificates was cancelled and their
protection only by patents was established;
- the statute of the Patent Office as a specialized and independent state authority was
set up;
- the institution of the Patent attorney was established;
- all basic principles of the European Patent system were adopted, such as:  "first to
file"  and equality and right to fair remuneration for service inventions.
In compliance with Article 27.1 of the TRIPS Agreement, the Bulgarian Patent Law stipulates
that patents are available for any invention whether products or processes in all fields of technology,
provided that they are new, involve an inventive step and are capable of industrial application.  The
exclusions from patentability in Article 7 of the Patent Law fully comply with the requirements of
Articles 27.2 and 27.3 of the TRIPS Agreement.  The applications for patents may be filed in English,French or other foreign language with the Bulgarian Patent Office.
Article 44 paragraph 2 of the Patent Law recognizes a right of priority on the basis of an
earlier patent application filed in any other WTO Member by a national of a WTO Member.  The
Bulgarian Patent Law requires that within a two-month period from the date of filing of the
application with the Patent Office, the applicant presents a written statement for priority containingthe number, date and country of the initial application and pays a fee for the claimed priority.  The
right of priority is proved within a three-month time limit from the time of filing of the application
with the Patent Office.  Failure to observe the above limits and to pay fees for claimed priority results
in a loss of the priority right.  The priority could be changed within these time limits.
An important regulation in the field of patents is the Regulation of the Council of Ministers
No. 137 of 15 July 1993 on industrial property representatives, which provides for the procedure of
acquisition of rights by industrial property representatives, their registration with the Patent Office,
their rights and obligations.
In the field of protection of plant varieties the main legal instrument is the Law on the
Protection of Plant Varieties and Animal Breeds, enacted by the Bulgarian Parliament on19 September 1996.  It is worth noting that the Thir tieth Session of the International Union (UPOV)
for the Protection of New Varieties of Plants on 23 October 1996 adopted a positive decision on the
conformity of the above mentioned Bulgarian Law with the provisions of 1978 Act and with the
provisions of the 1991 Act.
The competent Bulgarian government authorities have prepared a Draft Law on Protection of
Layout-Designs (Topographies) of Integrated Circuits, which is fully harmonized with the
Washington Treaty on Intellectual Property in Respect of Integrated Circuits.  It could be expectedthat the Draft Law will be soon submitted and consequently enacted by the recently elected National
Assembly of Bulgaria.IP/Q3/BGR/1
Page 3
The Law on Protection of Competition provides for protection of undisclosed information and
control of anti-competitive practices in contractual licences and it is in compliance to a considerable
extent with the provisions of Articles 39 and 40 of the TRIPS Agreement.
For the purposes of the present review of intellectual domestic laws and regulations the
European Communities and their Member States and the United States of America have identified
their questions and have kindly communicated them to us.  The Bulgarian replies to the questions,
which were posed to us by the European Communities and the United States are at the disposal of the
delegations.
II. REPLY TO THE GENERAL QUESTION ON PRIORITY RIGHTS3
Does your country recognize a right of priority on the basis of an earlier patent
application filed in any other WTO Member by a national of a WTO Member?
In accordance with paragraph 2 of Article 44 of the Law on Patents, the Republic of Bulgaria
recognizes a right of priority on the basis of an earlier patent application filed in any other WTO
Member by a national of a WTO Member.
III. REPLIES TO THE QUESTIONS POSED BY THE EUROPEAN COMMUNITIES
AND THEIR MEMBER STATES
Preliminary Remarks
The Republic of Bulgaria fulfilled its constitutional requirements for the accession to the
WTO Agreement. According to the procedures envisaged in the Bulgarian Constitution, theParliament of the Republic of Bulgaria ratified the legal instrument for the Accession of the Republic
of Bulgaria to the Marrakesh Agreement Establishing the WTO - the Protocol for the Accession of
Bulgaria to the Marrakesh Agreement Establishing the WTO, and the Marrakesh Agreement
Establishing the WTO, including Annex 1B - Agreement on Trade-Related Aspects of Intellectual
Property Rights (Ratification Law, State Gazette No. 93/1996).
After the promulgation of the full text of the WTO Agreement in a special edition of the State
Gazette the provisions of Article 5, paragraph 4 of the Constitution of the Republic of Bulgaria are
applicable.  Article 5, paragraph 4 of the Constitution states as a basic principle that InternationalTreaties ratified by the Parliament, promulgated and entered into force for the Republic of Bulgaria
become an integral part of the internal legislation, and in cases of collision of the provisions of the
internal legislation with that of the International Treaties the last would prevail.
1. Does the reference in Section 1(2) of the Bulgarian Patent Law of 1993 to "foreign
natural and legal persons" effectively extend pate nt protection to all nationals of Members of
the World Trade Organization, as defined in, and in accordance with, Article 1.3 of the TRIPS
Agreement?  Please explain.
Under the provisions of Article 1, paragraph 2 of the Bulgarian Patent Law (1993), the
effectively extended patent protection in the scope of that law is accorded to all foreign natural andlegal persons, who are nationals of Members of the World Trade Organization, as defined in
Article 1.3 of the TRIPS Agreement.
                                                     
3 At the meeting of the TRIPS Council of 27 February 1997, Members agreed to respond to this
question in the context of the present review (document IP/C/M/12, paragraph 18).IP/Q3/BGR/1
Page 4
[General follow-up question from the EC]
In several instances the Bulgarian Government  refers to the direct applicability of the
TRIPS Agreement.  Could the Government of Bul garia confirm that the ratification process is
completed and therefore, the TRIPS Agreement applic able?  If this is not the case, what is the
time frame for completion of the legislative process?  Is it the intention of the Bulgarian
Government to amend its laws to provide for the rights and obligations as set out in the TRIPS
Agreement, which is particularly important in cases where the TRIPS Agreement provides for a
choice?
The legislative procedure of ratification of the Marrakesh Agreement in the Republic of
Bulgaria is completed and the TRIPS Agreement is applicable.  After the promulgation of the text of
the WTO Agreement, under the provisions of Article 5, paragraph 4 of the Constitution of the
Republic of Bulgaria, the TRIPS Agreement becomes an integral part of the internal legislation and in
cases of collision of the provisions of the internal legislation with the provisions of the TRIPS
Agreement, the last would prevail.
In cases where the TRIPS Agreement provides a choice between different options, the
provisions of the Bulgarian legislation, corresponding to one of the options, would apply.  In
particular, Article 27.3(b) of the TRIPS Agreement stipulates optional exclusions from patentability.
Article 7, paragraph 3 of the Patent Law excludes from patentability plant variety and animal breeds
other than microbiological methods and products thereof.  The above mentioned provisions of thePatent Law are in compliance with one of the optional exclusions from patentability of Article 27.3(b)
of the TRIPS Agreement.
2. Does the Bulgarian Patent Law of 1993 prohibit the grant of a compulsory licence in
circumstances where the right holder justifies hi s or her failure to use the subject matter of the
patent in accordance with Article 2.1 of the TR IPS Agreement in conjunction with 5(A)(4) of
the Paris Convention? If so, what are these circumstances?
Under the provisions of Article 32, paragraph 1, subparagraphs 1 and 2 of the Patent Law, a
compulsory licence cannot be requested and granted for failure to use the subject matter, provided that
at least one of the following conditions is at hand:
- failure to use the invention for a period of four years from the date of the application
for a patent or of three years from the grant of a patent, provided that the time limit
which expires later is valid;
- insufficient use of the invention to satisfy the needs of the national market, within the
time limits as per above, unless the patent owner proves valid reasons for that.
In that respect the Patent Law is in full compliance with Article 2.1 of the TRIPS Agreement
in connection with Article 5(A)(4) of the Paris Convention.
[Follow-up question from the EC]
Does the patent holder have the possibility to invoke legitimate reasons for which he
failed to use the invention for a period of four years from the date of the application or
three years from the grant of the patent to refuse to grant the compulsory licence?
The patent holder has the possibility to invoke legitimate reasons for which he failed to use
the invention for a period of four years from the date of application or three years from the grant ofIP/Q3/BGR/1
Page 5
the patent to refuse to grant the compulsory lic ence by referring to Article 5(A)(4) of the Paris
Convention of the Protection of Industrial Property.
3. Does the Bulgarian Patent Law of 1993 provide for the patentability of micro-organisms
in accordance with paragraph (b) of Article 27.3 of the TRIPS Agreement?
Under Article 7, subparagraph 3 of the Patent Law (1993), protection is granted for
microbiological methods and products obtained through them in full compliance with Article 27.3(b)of the TRIPS Agreement.
Under that hypothesis, the provisions of Article 37(2) of the Patent Law lay down the
condition that the description should contain an indication of the fact that the deposit has been made at
an international depository institution in cases wh ere the patent application refers to biologically
reproducible material, including micro-organisms.
4. Article 30 of the TRIPS Agreement mentions "not unreasonably prejudice" in cases of
exceptions to the rights conferred to a patent owner. However, Section 20(1) of the Bulgarian
Patent Law of 1993 uses the terms "does not cause significant material prejudice".  How is this
part of the Patent Law interpreted? Please explain.
Under the provisions of Article 20, paragraph 1 of the Patent Law,  the effect of the patent
does not extend to the use of objects of inventions for non-commercial purposes (for private needs).
The expression "if such use does not cause significant damages for the owner of the patent" cannot beconsidered separately, but only in connection with the limitation of usage for private needs. In that
aspect, according to the provisions of the Patent Law, the effect of the patent does not extend to the
use of patent inventions for non-commercial purposes (for private needs) if such use does not cause
significant damages for the owner of the patent. In that respect we assume that Article 20, paragraph 1
of the Patent Law does not contradict Article 30 of the TRIPS Agreement.
[Follow-up question from the EC]
Could the Government of Bulgaria explain how the words "not unreasonably
prejudice" in Section 20(1) of the Patent Law are interpreted against the background of
Article 30 of the TRIPS Agreement?
The words "not cause significant prejudice" in Article 20, subparagraph 1 of the Law on
patent shall be interpreted as equivalent to the words "not unreasonably prejudice", as they are used in
Article 30 of the TRIPS Agreement.  There have been no legal cases until now, which could give
ground for a different interpretation.
5. Does the Bulgarian Patent Law of 1993, in particular in light of Section 32(7), comply
with Article 31 of the TRIPS Agreement? Please explain.
The provisions of Article 32, paragraph 7 of the Patent Law ensure the priority of the
conditions for granting of compulsory licence, la id down in bilateral or multilateral agreements
(including the TRIPS Agreement) to which Bulgaria  is a party, over the conditions stipulated in
Article 32.
Article 32 of the Patent Law complies with Article 31 of the TRIPS Agreement, because the
provisions of paragraph 7 provide for the implementation of the conditions for granting of compulsory
licences to patent owners from WTO Members, as laid down in Article 31 of the TRIPS Agreement.IP/Q3/BGR/1
Page 6
6. Does the Bulgarian Patent Law of 1993 impose on a proposed compulsory licensee, as a
condition precedent to the gran t of the compulsory licence, the obligation to make reasonable
efforts to obtain authorization from the right holder on reasonable terms and conditions in
accordance with Article 31(b) of the TRIPS Agreement? Please explain.
There is no explicit provision for that case in the Patent Law, but in line with Article 32,
paragraph 7 as stated above, concerning a licensee from WTO Members, the applicant will be
required prior to the grant of the compulsory licence, to have made reasonable efforts to obtain
authorization from the right holder on reasonable terms and conditions.
Account should also be taken of the fact that, in accordance with the provisions of Article 32,
paragraph 1, a compulsory licence may be requested only by the person involved, i.e. the interest ofthe petitioner has to be motivated in the request; and according to paragraph 2 the petitioner has to
prove that he is in a position to use the invention within the limits of the compulsory licence
requested.
7. Does the Bulgarian Patent Law of 1993 require that notification of a compulsory licence
be given to the right holder in cases of national  emergency in accordance with Article 31(b) of
the TRIPS Agreement?
There is no explicit provision in the Patent Law, but as stated in reply to question No. 5 above
all additional conditions stipulated in Article 31 of the TRIPS Agreement are obligatory for the
Republic of Bulgaria, including the requirement for notifying the right holder in due time whengranting a compulsory licence in situations of national emergency or other circumstances of extreme
urgency.
8. Does the Bulgarian Patent Law of 1993 limit the scope and duration of a compulsory
licence to the purpose for which it  was authorized in accordance with Article 31(c) of the TRIPS
Agreement?  Please explain.
Under the provisions of Article 32, paragraph 1, subparagraph 3 the time period for the
compulsory licence granted in case of declared national emergency is limited for the time period of its
duration.
For other cases of compulsory licence grants, the Patent Law does not stipulate rules for
limitation of the duration depending on the purpose of the grants. The provisions of Article 32,
paragraph 5 of the Patent Law only define the time limits, within which a licensee should have started
the preparation for using, respectively using the invention object of licensing.
Referring to the limitation of the scope of the compulsory licence, the petitioner, in
accordance with Article 32, paragraph 2 of the Patent Law, has to prove that he is in a position to use
the invention within the limits of the compulsory licence requested, i.e. he has to restrict the scope of
the compulsory licence requested to the extent he himself is in a position to use the invention.
However, in the meaning of the provision Article 32, paragraph 7 of the Patent Law, there are
no obstacles to limit the scope and duration of a compulsory licence to the purpose for which it was
authorized in accordance with Article 31(c) of the TRIPS Agreement.
9. Does the Bulgarian Patent Law of 1993 permit the assignment of a compulsory licence
with part of the enterprise or goodwill which en joys such use in accordance with Article 31(e) of
the TRIPS Agreement?
In conformity with the provisions of Article 31(e) of the TRIPS Agreement and
Article 4(A)(4) of the Paris Convention, Article 32, paragraph 4 of the Patent Law permits theIP/Q3/BGR/1
Page 7
compulsory licence to be assigned only together w ith part of the enterprise or goodwill wherein the
invention subject to such a licence is being used.
10. Does the Bulgarian Patent Law of 1993 restrict, in compulsory licensing situations, the
use of the subject matter of the licensed patent to use which is predominantly for the supply of
Bulgaria’s domestic market in accordance with Article 31(f) of the TRIPS Agreement?
Although there is no explicit provision in the Patent Law, the hypothesis of Article 32,
paragraph 1, subparagraph 2 requires the grant of a compulsory licence when there is insufficient use
of the invention "to satisfy the needs of the national market". That hypothesis preconditions the
limitation of the granted compulsory licence to the ex clusive use necessary to satisfy exclusively the
needs of the domestic market of the Republic of Bulg aria. From another point of view, as cited in the
reply to question No. 5 above, under the provision of Article 32, paragraph 7 of the Patent Law, the
limitation under Article 31(f) of the TRIPS Agreement, is to be applied to the patent holders of WTO
Members.
[Follow-up question from the EC]
Could the Government of Bulgaria clarify wh ether the interpretation (i.e., restricting
the use of the subject matter of a licensed patent in compulsory licensing situations to use which
is predominantly for the supply of the national market)  applies to Section 32(1)(1) of the
Bulgarian Patent Law of 1993 (compulsory licence for failure to use) given that the wordingrelied upon in respect of Section 32(1)(2) ("insufficient working of the invention to satisfy the
needs of the national market") does not appear in Section 32(1)(1)?
When enforcing Article 32(1), item 1 of the Patent Law, the general principle will be taken
into account of balance between the interests of the patentee and the public, that principle being
expressly laid down in item 2 of the same Article.  In this sense, in case of "failure to use theinvention" for a period as per Article 32(1), item 1, a compulsory licence shall be granted only where
there is a real demand of the national market for the object of the patent.
11. Does the Bulgarian Patent Law of 1993 permit the termination in all cases of a
compulsory licence on the ground that the circumstances which led to the compulsory licence
have ceased to exit and are unlikely to recur in accordance with Article 31(g) of the TRIPS
Agreement?
Under the provisions of Article 32, paragraph 1, subparagraph 3 of the Patent Law, the
compulsory licence granted in cases of declared national state of emergency is to be terminated for the
duration of the declared national state of emergency, i.e. in case of cancellation of the state of
emergency.
In all other cases, according to the provisions of Article 55, paragraph 2, subparagraph 2 of
the Patent Law, the right holder of a patent, in the limits of which the licence has been granted, has the
right to request its termination if or when the circumstances under which it has been granted cease to
exist or are unlikely to reappear.
A special procedure, regulated in the Law on Obligations and Contracts shall be applied in
cases of violation of other conditions, envisaged when the compulsory licence has been granted.
[Follow-up question from the EC]
Please explain the mentioned "special procedure" which is applied in cases of violation
of other conditions.IP/Q3/BGR/1
Page 8
What rights does the patent holder enjoy?
What was meant in our reply to question No. 11 was that the patent holder may also invoke
and present other circumstances under the general Bulgarian legislation in cases of violation of
conditions, envisaged by its rules and norms.  In such cases the procedures, established by the
legislation shall apply.  The patent holder may enjoy the right to request a review of the
circumstances, if they have ceased to exist and are unlikely to occur again.
12. Does the Bulgarian Patent Law of 1993 require the adequate remuneration of a right
holder in circumstances where the subject matter of  the right holder’s patent is the subject of a
compulsory licence in accordance with Article 31(h) of the TRIPS Agreement?
The provisions of Article 66 of the Patent Law stipulate an opportunity for the patent holder,
to whom a compulsory licence has been grante d, to request the Sofia Town Court for dispute
concerning remuneration of sums, which provides a protection to the legal interests of the patent
holder. When a compulsory licence has been granted, an adequate remuneration of sums is due to thepatent holder and their amount may be disputed in court.
[Follow-up question from the EC]
What is the legal basis for the right to such remuneration and adequacy?
The provisions of Article 66 of the Law on Patents are sufficient legal basis for the right to
such remuneration and adequacy.
13. What entity is responsible for adjudicati ng requests for the grant and termination of
compulsory licences under the Bulgarian Patent Law of 1993 and are decisions made in respect
of such requests subject to review by a distinct hi gher authority in accordance with Article 31(i)
of the TRIPS Agreement?
The competent authority for assignment or termination of compulsory licence under the
provisions of Article 80, paragraph 4 of the Patent Law is the Patent Office of the Republic of
Bulgaria; the requests for compulsory licence under the provisions of Article 55, paragraph 2 are
considered by the Department for Disputes at the Patent Office. Its decisions under the provisions of
Article 59 in connection with Article 58, paragraph 5, subparagraph 2 of the Patent Law are objects of
legal control by the Sofia Town Court.
14. With respect to a compulsory licence granted in order to permit exploitation of the
subject matter of a patent (the "second patent") which can not be exploited without infringing
another patent (the "first patent"), does the Bulgarian Patent Law of 1993, in accordance with
Article 31(l) of TRIPS:
(a) require that the second patent involve an important technical advance of
considerable economic significance in rela tion to the invention claimed in the
first patent;
(b) provide to the owner of the first pate nt the right to a cross-licence on reasonable
terms to use the second patent; and/or
(c) prohibit the assignment of the right to use the first patent except with the
assignment of the second patent?IP/Q3/BGR/1
Page 9
Under the provision of Article 32, paragraph 3 of the Patent Law, a compulsory licence may
be granted in favour of a patent holder, whose invention, for which a patent has been assigned (second
patent) is included in the scope of another patent (first patent) under the condition that, despite the
steps undertaken by the holder of the second patent, an agreement for licence at reasonable and fair
conditions has not been concluded.
As stated in the reply to question No. 5 above, on basis of the provision of Article 32,
paragraph 7 of the Patent Law, all other conditions provided for in Article 31(l)(i), 31(l)(ii), 31(l)(iii)
of the TRIPS Agreement are applied for all patent holders of WTO Members.
15. Does Bulgarian Law make provision, in the context of civil proceedings for infringement
in respect of a patented process for obtaining a new product and in accordance with Article 34.3
of the TRIPS Agreement, for consideration of the legitimate interests of a defendant in
protecting its manufacturing and business secrets in circumstances where the defendant is
required to prove that the process used to obta in an identical produc t is different from the
patented process?
For the protection of manufacturing and business secrets in the legal procedure the provisions
of Article 105, paragraph 2 of the Code on Civil Procedures envisage the opportunity to consider the
circumstances of the case on request of one of the parties before the Court. Only the parties, their
representatives and, if necessary,  experts, witnesses and those, allowed by the court, may participatein the case.
[Follow-up question from the EC]
What kind of criteria will be applied when envisaging "the opportunity to consider the
circumstances of the case" and how do they comply with Article 34.3 of the TRIPS Agreement?
Under Article 105 paragraph 2 of the Code on Civil Procedure, the circumstances for
consideration of a case in a close door session are considered by the court upon the request of one of
the parties.  There have been no legal cases of consideration of law infringements until now, where
the interests of a party fall under the hypothesis of Article 34.3 of the TRIPS Agreement.
16. Does Bulgarian law provide for the protection of layout-designs (topographies) of
integrated circuits in accord ance with Articles 35 to 37 of the TRIPS Agreement?
The Patent Office has prepared a Draft Law on Protection of Layout-Designs (Topographies)
of Integrated Circuits, fully harmonised with the Treaty on Intellectual Property in Respect of
integrated circuits, adopted at Washington in 1989. The Draft is under consideration by the
Legislative Council at the Ministry of Justice and its examination by the Council of Ministers of the
Republic of Bulgaria is pending.
[Follow-up question from the EC]
What is the approximate time frame for the legislative process to be completed?
On 19 April 1997 general elections were held in Bulgaria and the newly elected Parliament
commenced its sessions in the beginning of May.  Therefore, the detailed Legislative Programme of
the Parliament has not been finalized.
It may be expected that the importance of an early enactment of the Law on Layout-Designs
of Integrated Circuits shall be taken into consideration in the Legislative Programme of theParliament.IP/Q3/BGR/1
Page 10
17. Does Bulgarian Law provide natural and legal persons with the means of preventing
information lawfully within their control from be ing disclosed to, acquired by, or used by others
without their consent in accordance with Article 39.2 of the TRIPS Agreement?
Article 14, paragraph 3 of the Law on the Protection of Competition stipulates prohibition on
the divulging of the protection of trade secrets. The learning, use or divulging of undisclosed
information contrary to bona fide trade practices is considered as unfair competition under the law.The law guarantees the right of natural and legal persons whose interests have been harmed either by
means of their right to refer the case to the court personally, or by claims lodged by the authorized
body for protection of competition or the district prosecutor. Under the provisions of Article 14,
paragraph 5 of the Law on the Protection of Competition, employees of any enterprise or
organization, as well as of state bodies (including  the period after termination of their employment
contracts) may not communicate the production or trad e secrets which they have learned through their
employment for a period of five years, except where a longer term is stipulated in the employment orother contract.
[Follow-up question from the EC]
Could the Government of Bulgaria clarify the legislative basis (e.g. interlocutory or
interim relief), if any, upon which anticipated use or dissemination may be restrained?
The Labour Code and the Law on Commerce define the legislative basis, upon which
anticipated use or dissemination of undisclosed information may be restrained.
Article 126, subparagraph 9 of the Labour Code  stipulates that workers and employees,
appointed under an employment contract, shall protect and shall not to disseminate information,
considered as confidential by the employer.  That is an obligation to protect production, official and
trade secrets, possessed by the employer.  The employer shall determine the information, which heconsiders as confidential.  He informs workers and employees of his decision regarding
confidentiality of information.
Article 52 of the law on Commerce also provides that the procurator, attorney, assistant, agent
or broker shall protect the confidentiality and good name of his principal.  The obligation to protect
trade secret includes non-dissemination of relevant data and non-use of it, contrary to the interests ofthe principal.
18. Does the phrase "in a manner inconsistent with honest trade practice" in Section 14 of
the Bulgarian Law on the Protection of Competition of 1991 include (i) breach of contract,
(ii) inducement to breach; and/or (iii) the acquisition of undisclosed information by third parties
who knew, or where grossly negligent in failin g to know, that practices contrary to honest
commercial practice where involved in the acquis ition in accordance with Article 39.2 of the
TRIPS Agreement?
Although there is no legal definition for the phrase used "in contrary to bona fide trade
practice" in Article 14 of the Law on the Protection of Competition (1991), the authorized body for
protection of competition assumes in its practice such action as breach of contract, inducement to
breach and/or the acquisition of undisclosed inform ation by third parties who knew, or were grossly
negligent in failing to know, as inconsistent with bona fide trade practice.
19. Does the Bulgarian Law on the Protection of Competition of 1991 restrict the type of
undisclosed information which may be protected from disclosure, acquisition or use even if such
undisclosed information meets the criteria set forth in Article 39.2 of the TRIPS Agreement?IP/Q3/BGR/1
Page 11
Under the provision of Article 14, paragraph 2 of the Law on the Protection of Competition,
production or trade secrets also include decisions and data related to the economic activity, whose
learning, use or divulging could create a threat of damaging the business interests of the entitled
person.
The Bulgarian Government has taken the necessary steps for changes in the national
legislation with a view to harmonization with the provisions of Article 39.2 of the TRIPS Agreement.
[Follow-up question from the EC]
Please specify the "necessary steps" the G overnment of Bulgaria has taken with a view
to harmonize national legislation with Article 39.2 of the TRIPS Agreement.
As regards the answer to question No. 19, could the Government of Bulgaria clarify
whether the term "manufacturing and business secretes" as defined in Section 14(2) of the
Bulgarian Law on the Protection of Competition of 1991, is interpreted to be limited to
(i) information reduced to writing and/or (ii) data and decision pertaining to an existing
business operation?  If so, how does this comp ly with Article 39.2 of the TRIPS Agreement?4
The term "manufacturing and business secrets", as defined in Article 14, paragraph (2) of the
Law on the Protection of Competition, encompasses all information, related to the business operations
of employer or principal.  It is irrelevant how the information came to the knowledge of the worker or
employee - from the existing information in writing;  data and decisions, pertaining to existing trade
transactions;  or information, learned by the worker or employee in the course of his participation in
official meetings, talks with the employer or person, authorized by him.  The term encompasses all
facts, which became known to a limited number of workers or employees within their official
responsibilities.
20. Does Bulgarian law require, as a condition of the protection of undisclosed information,
that the information sought to be protected h ave been subject to reasonable steps to keep it
secret in accordance with paragraph (c) of Article 39.2 of the TRIPS Agreement?
Under the provision of Article 14, paragraph 3 of the Law on the Protection of Competition
the learning of another’s production or trade secret is contrary to bona fide practice when
accomplished through eavesdropping, entering into premises, opening of correspondence,
photographing or examining without the consent of th e owner of documents or materials stored in a
manner as to limit access to them, or through fraud or offering a benefit to persons who have access to
the secret through official or contractual relations.
Further to that the Bulgarian Government has undertaken the necessary steps for changes in
the legislation in conformity with the provisions of Article 39.2 of the TRIPS Agreement.
21. Does Bulgarian law provide for the protection of undisclosed test or other data, filed as
a condition of the approval of the marketing of  pharmaceutical or of agricultural chemical
products, against unfair commercial use in accordance with Article 39.3 of the TRIPS
Agreement?
The Law on the Protection of Competition of 1991 does not provide for the protection of
undisclosed test or other data, filed as a condition of the approval of the marketing of pharmaceutical
or of agricultural chemical products against unfair  commercial use. The Government of the Republic
                                                     
4 The EC delegation has indicated that this follow-up question also applies to question No. 20 from the
EC.IP/Q3/BGR/1
Page 12
of Bulgaria has undertaken the steps necessary for the improvement of the stated law in conformity
with Article 39.3 of the TRIPS Agreement.
[Follow-up question from the EC]
Please specify the "steps necessary undertaken by the Bulgarian Government" to bring
its law into conformity with Ar ticle 39.3 of the TRIPS Agreement.
The competent Government institutions have prepared a new Draft Law on the Protection of
Competition, which is in conformity with the requir ements of Article 39.3 of the TRIPS Agreement.
The Draft Law has been submitted to the Parliament for its consideration and enactment.
22. Does the Bulgarian Law on the Protection of Competition of 1991 permit the prevention
or control of intellectual property contractua l licensing practices other than those which may
constitute an "abuse of intellectual property ri ghts having an adverse effect on competition in
the relevant market" within the meaning of Article 40.2 of the TRIPS Agreement?
The Law on the Protection of Competition of 1991 has no explicit provisions on the
prevention or control of intellectual property contractual licensing practices. Respective changes in
the legislation in conformity with Article 40.2 are to be undertaken by the Parliament shortly.
[Follow-up question from the EC]
Please specify the time frame for the respective changes in the legislation.
It may be expected that the importance of an early enactment of the changes in the internal
legislation in conformity with Article 40.2 of the TRIPS Agreement will be taken into consideration
in the Legislative Programme of the recently elected Parliament.
IV. REPLIES TO QUESTIONS POSED BY THE UNITED STATES
1. Please explain, whether any of the follow ing inventions are prohibited from being
patented in Bulgaria if they otherwise sati sfy the conditions of being novel, involving an
inventive step, and being industrially applicable:
(a) process inventions which, in whole or in part, consist of steps that are performed
by a computer and are directed by a computer program;
(b) product inventions consisting of elements of a computer-implemented invention,
including in particular:
(i) machine-readable computer program code stored on a tangible medium
such as a floppy disk, computer ha rd drive or computer memory; and
(ii) a general purpose computer whose novelty over the prior art arises
primarily due to its combination with a specific computer program;
(c) pharmaceutical or agricultural chemical products; or(d) non-naturally occurring microorganisms, plants or animals.IP/Q3/BGR/1
Page 13
If any of these types of inventions are excluded from eligibility to be patented, please
explain how Bulgarian patent law complies with the obligations of Article 27 of the TRIPS
Agreement, which mandates patent eligibility for all categories of invention without
discrimination.
(a) Under the provisions of Article 6, paragraphs 2 and 3 of the Bulgarian Patent Law (1993)
computer programmes are excluded from the patentable inventions, provided that no legalprotection is required for them as such, but that provision does not exclude a priori the
patentability of inventions related to computers.
In that meaning, the Patent Law does not exclude from the patent protection the inventions for
methods, which in whole or in part, consist of steps that are performed by a computer and are
directed by a computer program.
(b) (i) Machine-readable computer program code stored on a tangible medium such as a
floppy disc, computer hard drive or computer memory is in the scope of the excludedby Article 6, paragraph 2 of the Patent Law objects - "computer programmes" as
such.
Such a product, besides its storage on a tangible medium, is excluded from
patentability, because its novelty over the field of technology is concentrated only and
exclusively to the contribution, provided by the computer programme as such.
(ii) A general purpose computer, whose novelty over the prior art arises primarily due to
its combination with a specific computer programme which provides the working
process of the computer in a different way from a technical point of view, is not
excluded from the patent protection.
(c) Pharmaceuticals or agricultural chemical products may be protected under the provisions of
the Patent Law.
(d) Plant varieties and animal breeds are excluded from patent protection as per Article 7,
paragraph 3 of the Patent Law.
Non-naturally occurred plants and animal breeds, e.g. where there exists human intervention
to the essential biological process, are not excluded from patent protection.
Micro-organisms, as products of microbiol ogical methods, under the provisions of
paragraph 3 of Article 7 of the Patent Law may be patent protected.
The Bulgarian Patent Law mandates patent eligibility for all categories of inventions without
discrimination in compliance with Article 27 of the TRIPS Agreement.
2. Please explain whether it is possible in Bulgaria to obtain a compulsory licence (a licence
granted to a third party without the consent of th e patent owner), and if so, how such authority
complies with the provisions of Article 31 of the TRIPS Agreement.
Under the provisions of Article 32 of the Patent Law, any person involved could request the
Patent Office for concession of a compulsory licence in his favour for the use of a patent protected
invention, without the patent owner's consent, provid ed that at least one of the following conditions is
present:IP/Q3/BGR/1
Page 14
- failure to use the invention for a period of four years from the date of the application
for a patent or of three years from the grant of a patent, provided that the time limit
which expires later is valid;
- insufficient use of the invention to satisfy the needs of the national market, within the
time limits as per above, unless the patent owner proves valid reasons for that;
- declared national state of emergency - for the time period of its duration.These conditions do not deplete the conditions of Article 31 of the TRIPS Agreement but as
far as paragraph 7 of Article 32 (PL) establishes the applicability of the conditions under which the
compulsory licence shall be issued and fixed in bilateral and multilateral agreements to which
Bulgaria is a party, and the application of this in stitution in Bulgaria will be fully complied with the
standards and rules of the TRIPS Agreement.
The American side should note that according to Article 5, paragraph 5 of the Constitution of
the Republic of Bulgaria, the TRIPS Agreement after its publishing in State Gazette shall become partof the internal legislation of our country and its standards and rules shall prevail over those rules of
our legislation which are in contradiction with them.
[Follow-up question from the US]
In response to question No. 2 posed by the United States, the Government of Bulgaria
has stated that the Bulgarian Constitution (Art icle 5, paragraph 5) provides that the TRIPS
Agreement shall apply directly and become part of  the internal legislation of Bulgaria.  Please
explain:
(a) whether the optional exclusions of the TRIPS Agreement, particularly those of
Article 27.3(b), have been invoked and apply in Bulgaria; and
(b) whether a patent owner, in an action before a Bulgarian judicial authority, can
invoke specific provisions of the TRIPS Agreement to enjoy the rights required
to be associated with a patent under the agreement.
Article 5, paragraph 4 of the Constitution of the Republic of Bulgaria states that International
Treaties, ratified by the Parliament, promulgated and entered into force for the Republic of Bulgaria,
become part of the internal legislation, and in cases of collision of the provisions of internallegislation with that of the International Treaty the last would prevail, i.e. would apply directly.  In
cases, when the International Treaty provides a choice between different options, the provisions of the
Bulgarian legislation, corresponding to one of the options of the International Treaty, would apply.
(a) The optional exclusions of Article 27.3(d) of the TRIPS Agreement apply in
Bulgaria.  Article 7, paragraph 3 of the Patent Law excludes from patentability plantvarieties and animal breeds other than microbiological methods and products thereof.
The above mentioned provisions on the Patent Law are in conformity with one of the
optional exclusions of Article 27.3(b) of the TRIPS Agreement.
(b) After the promulgation of the TRIPS Agreement, the patent owner, in an action
before a Bulgarian judicial authority, can invoke its specific provision to enjoy the
rights required to be associated with a patent under the agreement.  There have not
been legal cases of direct application of the TRIPS provisions until now.IP/Q3/BGR/1
Page 15
3. Please indicate how many compulsory licen ces on a yearly basis have been granted in
Bulgaria since 1 January 1993.
Since 1 January 1993, no compulsory licence has been requested for the use of a patent
protected invention.
4. Please explain whether protection is offere d in Bulgaria for plant varieties, and if so,
whether such protection is based on the standa rds of the 1978 or 1991 Acts of the International
Convention for the Protection of New Varieties of Plants (UPOV).
The plant varieties in Bulgaria are protected by the Law on Protection of New Plant Varieties
and Animal Breeds which entered into force on 4 January 1997.
The law and the protection are based on the standards of the 1991 Act of the UPOV.
5. Please explain how undisclosed information is protected in Bulgaria, and the legal basis
for such protection.
The protection of undisclosed information is legally established.  The Law on the Protection
of Competition adopted in 1991, prohibits the announcement of decisions and data, representingproduction or trade secret.  The learning, use or divulging of undisclosed information in contradiction
with the bona fide trade practice represent unfair competition.
Article 14, paragraph 3 of the Law on the Protec tion of Competition provides for more tough
sanction for the infringement - the learning of another's production or trade secret "througheavesdropping, entering into premises, opening of correspondence, photographing" and other illegal
means.
Article 14, paragraph 5 of the Law on the Protection of Competition obliges the employees of
any enterprise or organization, as well as the state bodies (including after termination of theiremployment contracts) not to communicate the produc tion or trade secrets which they have learned
through their employment for a period of 5 years, except where a longer term is stipulated in theemployment or other  contract.
The Law guarantees the right to claim before the court of the natural and legal persons whose
interests have been harmed by the violation.  The same right, on independent legal basis, has the
specialized body for the protection of the competition as well as the district attorney.
In cases of violation under Article 14, the La w provides imposition of pecuniary sanctions on
the persons found guilt by the district court according to the crime commitment.
6. Please indicate the nature of measures, if any, that are taken by judicial authorities in
Bulgaria to protect the confidentiality of undisclosed information furnished by a party to thecourt during legal proceedings, when the inform ation has been provided either to enforce rights
in such information, or for other purposes.
For the purpose of preventing the announcement of undisclosed information, submitted by the
corresponding party to the court, the case shall be held in closed doors according to Article 105,paragraph  2 of the Code on Civil Procedures.
7. Please explain the measures, if any, that have been implemented in Bulgaria to protect
against unfair competition those parties that ha ve provided confidential test or other dataIP/Q3/BGR/1
Page 16
concerning a pharmaceutical or agricultural chemical product to Bulgarian regulatory
authorities pursuant to a request for marketin g approval and how such measures are consistent
with Article 39.3 of the TRIPS Agreement.  Please explain whether the information is protected
against disclosure indefinitely, or is only protected for a specific period of time.
There are no explicit provisions in the Law on the Protection of Competition,which guarantee
protection from unfair competition to the persons, who had submitted to the competent Bulgarianauthorities confidential tests or other data for pharmaceutical or agricultural chemical products with
request for their approval.
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