52.227-5
Waiver of Indemnity
FAR 52.227-5 waives the Government's right to require contractor indemnification for patent infringement claims on specifically identified patents used solely in contract performance.
Overview
- FAR 52.227-5, Waiver of Indemnity, provides that the Government authorizes and consents to the use and manufacture of specified patented inventions in the performance of a contract, and waives its right to require the contractor to indemnify the Government against patent infringement claims related to those patents. This clause is inserted when prescribed by FAR 27.201-2(e) and applies only to the patents specifically identified by the Contracting Officer in the contract.
Key Rules
- Government Authorization and Consent
- The Government explicitly authorizes the contractor to use and manufacture inventions covered by certain U.S. patents for the sole purpose of performing the contract.
- Waiver of Indemnification
- The Government waives its right to require the contractor to indemnify it against patent infringement claims for the identified patents.
- Identification of Patents
- The Contracting Officer must specify the relevant patents by number or other appropriate means in the contract.
Responsibilities
- Contracting Officers: Must identify and list the applicable patents in the contract when including this clause.
- Contractors: May use and manufacture the identified patented inventions solely for contract performance without risk of indemnification claims from the Government for those patents.
- Agencies: Ensure proper application and documentation of the waiver in the contract file.
Practical Implications
- This clause protects contractors from liability for patent infringement claims related to specifically identified patents when performing Government contracts.
- It clarifies the Government’s position on indemnification, reducing contractor risk and potential costs.
- Contractors should ensure only the listed patents are used under this waiver and that all patent numbers are correctly identified in the contract.