52.227-1
Authorization and Consent
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.