52.227-1 Authorization and Consent
Source: FAR 52.227-1 on acquisition.gov
FAR 52.227-1 protects contractors from patent infringement liability when using patented inventions as required by government contracts, provided the clause is properly flowed down to qualifying subcontracts.
Overview
FAR 52.227-1, Authorization and Consent, provides that the U.S. Government authorizes and consents to the use and manufacture of any invention covered by a U.S. patent when performed under a government contract or qualifying subcontract. This clause protects contractors and subcontractors from patent infringement liability when their work necessarily involves patented inventions as required by contract specifications or instructions. The clause must be flowed down to all subcontracts expected to exceed the simplified acquisition threshold. Alternate versions of the clause apply to certain contract types, such as those for communication services or where broader authorization is needed.
Key Rules
- Government Authorization and Consent
- The Government grants authorization and consent for the use and manufacture of patented inventions in contract performance, shielding contractors from direct infringement liability.
- Scope of Authorization
- Applies to inventions embodied in delivered articles or used in required machinery, tools, or methods per contract specifications or written instructions.
- Indemnity Clause Reference
- Any liability for patent infringement is determined by the contract's indemnity clause, if present.
- Subcontract Flowdown
- Contractors must include this clause in all subcontracts expected to exceed the simplified acquisition threshold.
- Alternate Clauses
- Alternate I and II provide broader or specialized authorization for certain contract types or services.
Responsibilities
- Contracting Officers: Ensure the correct version of the clause is included in contracts and that flowdown requirements are enforced.
- Contractors: Use patented inventions as authorized, flow down the clause to qualifying subcontracts, and comply with any indemnity provisions.
- Agencies: Oversee compliance and manage any patent infringement claims per the contract's indemnity provisions.
Practical Implications
- This clause exists to protect contractors from patent infringement claims when performing government work as specified.
- It impacts daily contracting by requiring careful review of contract clauses and diligent flowdown to subcontracts.
- Common pitfalls include failing to flow down the clause or misunderstanding the scope of authorized use, which can expose contractors to liability.
As prescribed in 27.201-2(a)(1), insert the following clause:
Authorization and Consent (Jun 2020)
(a) The Government authorizes and consents to all use and manufacture, in performing this contract or any subcontract at any tier, of any invention described in and covered by a United States patent-
(1) Embodied in the structure or composition of any article the delivery of which is accepted by the Government under this contract; or
(2) Used in machinery, tools, or methods whose use necessarily results from compliance by the Contractor or a subcontractor with (i) specifications or written provisions forming a part of this contract or (ii) specific written instructions given by the Contracting Officer directing the manner of performance. the entire liability to the Government for infringement of a United States patent shall be determined solely by the provisions of the indemnity clause, if any, included in this contract or any subcontract hereunder (including any lower-tier subcontract), and the Government assumes liability for all other infringement to the extent of the authorization and consent hereinabove granted.
(b) The Contractor shall include the substance of this clause, including this paragraph (b), in all subcontracts that are expected to exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation (FAR) 2.101 on the date of subcontract award. However, omission of this clause from any subcontract, including those at or below the simplified acquisition threshold, as defined in FAR 2.101 on the date of subcontract award, does not affect this authorization and consent.
(End of clause)
Alternate I (Apr 1984). As prescribed in 27.201-2 (a)(2), substitute the following paragraph (a) for paragraph (a) of the basic clause:
(a) The Government authorizes and consents to all use and manufacture of any invention described in and covered by a United States patent in the performance of this contract or any subcontract at any tier.
Alternate II (Apr 1984). As prescribed in 27.201-2 (a)(3), substitute the following paragraph (a) for paragraph (a) of the basic clause:
(a) The Government authorizes and consents to all use and manufacture in the performance of any order at any tier or subcontract at any tier placed under this contract for communication services and facilities for which rates, charges, and tariffs are not established by a government regulatory body, of any invention described in and covered by a United States patent-
(1) Embodied in the structure or composition of any article the delivery of which is accepted by the Government under this contract; or
(2) Used in machinery, tools, or methods whose use necessarily results from compliance by the Contractor or a subcontractor with specifications or written provisions forming a part of this contract or with specific written instructions given by the Contracting Officer directing the manner of performance.