专利侵权责任与违约责任的竞合——中山隆成公司与湖北童霸公司实用新型专利侵权案

On the Concurrence of Liability for Patent Infringement and Liability for Breach of Contract

专利权人、侵权人就损害赔偿的计算方法或者数额所达成的协议,不是合同法意义上的合同,因而有关诉讼中不存在侵权责任与违约责任的竞合。只要该协议的形式和内容合法,则专利权人、侵权人和法院都可以主张适用。

The agreement reached by the patentee and the infringer on the calculation method or amount of damages is not a contract in the sense of contract law, so there is no concurrence between tort liability and breach of contract liability in the relevant litigation. As long as the form and content of the agreement are legitimate, the patentee, the infringer and the court can claim its application.