52.227-4 Patent Indemnity-Construction Contracts
Source: FAR 52.227-4 on acquisition.gov
Contractors on construction contracts must indemnify the Government against U.S. patent infringement claims arising from contract performance or Government use of deliverables, unless specific exclusions are listed.
Overview
FAR 52.227-4, "Patent Indemnity-Construction Contracts," requires contractors performing construction contracts to indemnify the U.S. Government against liability, costs, and expenses resulting from infringement of any United States patent, except for patents withheld under a Secrecy Order (35 U.S.C. 181). This indemnity covers both the performance of the contract and the Government's use or disposal of supplies or work provided under the contract. The clause includes an Alternate I provision, allowing the Contracting Officer to specify items that are excluded from the indemnification requirement.
Key Rules
- Patent Indemnity Requirement
- Contractors must protect the Government from liability for U.S. patent infringement related to contract performance or Government use/disposal of contract deliverables.
- Exclusions (Alternate I)
- The Contracting Officer may list specific items that are not covered by the indemnity, as detailed in Alternate I.
Responsibilities
- Contracting Officers: Must include this clause in applicable construction contracts and specify any exclusions if Alternate I is used.
- Contractors: Must indemnify the Government against patent infringement claims unless specific exclusions are listed.
- Agencies: Ensure compliance and proper clause inclusion in contracts.
Practical Implications
- This clause protects the Government from costly patent litigation related to construction contracts.
- Contractors must assess and manage patent risks associated with their work and deliverables.
- Failure to comply can result in significant financial liability for contractors and potential contract disputes.
As prescribed in 27.201-2(d)(1), insert the following clause:
Patent Indemnity-Construction Contracts (Dec 2007)
Except as otherwise provided, the Contractor shall indemnify the Government and its officers, agents, and employees against liability, including costs and expenses, for infringement of any United States patent (except a patent issued upon an application that is now or may hereafter be withheld from issue pursuant to a Secrecy Order under ( http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title35-section181&num=0&edition=prelim" target="_blank">35 U.S.C. 181) arising out of performing this contract or out of the use or disposal by or for the account of the Government of supplies furnished or work performed under this contract.
(End of clause)
Alternate I (Dec 2007). As prescribed in 27.201-2 (d)(2), designate the first paragraph of the basic clause as paragraph (a) and add the following paragraph (b) to the basic clause:
(b) This patent indemnification shall not apply to the following items: __________________________________________________ [Contracting Officer list the items to be excluded.]