FAR 27.201-1—General.
Plain-English Summary
FAR 27.201-1 explains the basic legal framework for patent and copyright infringement in federal contracting. It covers the Government’s exclusive-liability rule under 28 U.S.C. 1498, the fact that the Court of Federal Claims is the exclusive forum for monetary damages, and the absence of injunctive relief or a direct infringement suit against a contractor acting with Government authorization or consent. It also identifies the three key contract clauses used to manage infringement risk: the Authorization and Consent clause at 52.227-1, the Notice and Assistance Regarding Patent and Copyright Infringement clause at 52.227-2, and the Patent Indemnity clause at 52.227-3. In practice, this section tells contracting officers when and why the Government may permit use of patented inventions, require contractor cooperation if infringement claims arise, and shift certain patent infringement liability back to the contractor for commercial products or commercial services. For contractors, it signals that Government authorization does not eliminate all risk, but it does change who can be sued and what remedies are available.
Key Rules
Exclusive Government Remedy
Under 28 U.S.C. 1498, patent or copyright infringement by or on behalf of the Government is handled through a monetary damages claim against the United States in the Court of Federal Claims. The statute makes this the exclusive remedy, so injunctive relief is not available.
No Direct Suit Against Authorized Contractor
When a contractor infringes a patent or copyright with the Government’s authorization or consent, the patent or copyright owner generally cannot bring a direct infringement action against the contractor. The claim is treated as one against the Government instead.
Authorization and Consent Clause
The Government may expressly authorize and consent to a contractor’s use or manufacture of patented inventions by including FAR 52.227-1, Authorization and Consent. This clause is the mechanism that gives the contractor legal protection under the Government’s consent framework.
Notice and Assistance Requirement
Because infringement claims are handled under the exclusive-remedy system, the Government may require contractors to notify and assist it regarding patent or copyright claims by including FAR 52.227-2, Notice and Assistance, Regarding Patent and Copyright Infringement. This helps the Government respond to and defend claims.
Patent Indemnity for Commercial Items
For contracts involving commercial products or commercial services, the Government may require the contractor to reimburse the Government for liability arising from patent infringement by including FAR 52.227-3, Patent Indemnity. This shifts certain financial risk back to the contractor.
Responsibilities
Contracting Officer
Determine whether authorization and consent should be granted, whether notice and assistance obligations are needed, and whether patent indemnity is appropriate for the acquisition. The contracting officer must insert the applicable clause(s) when required and manage the contract’s infringement-risk allocation.
Contractor
Comply with any authorization and consent terms, provide notice and assistance if a claim is asserted, and reimburse the Government when a patent indemnity clause applies. The contractor should also monitor its designs, methods, and supplied items for potential infringement exposure.
Government
Use the statutory framework to channel infringement claims into the Court of Federal Claims, decide when to authorize contractor use of patented inventions, and require contractor cooperation or indemnity where permitted by the FAR.
Patent or Copyright Owner
Pursue monetary damages against the Government in the Court of Federal Claims when the alleged infringement is by or on behalf of the Government, rather than seeking injunctive relief or suing an authorized contractor directly.
Practical Implications
Contractors should not assume that Government work eliminates infringement risk; it mainly changes the legal remedy and the proper defendant.
Contracting officers need to be deliberate about clause selection, because the presence or absence of 52.227-1, 52.227-2, or 52.227-3 affects both risk allocation and contractor obligations.
A common pitfall is confusing authorization and consent with a blanket license to use any patented technology; the clause protects against direct suit for authorized performance, but it does not eliminate all contractual or reimbursement exposure.
When a claim arises, prompt notice and cooperation matter because the Government may need technical facts, records, and assistance to evaluate or defend the claim.
For commercial products and commercial services, patent indemnity can create real financial exposure for the contractor, so pricing, insurance, and supplier flowdowns should be reviewed early.
Official Regulatory Text
(a) Pursuant to 28 U.S.C. 1498 , the exclusive remedy for patent or copyright infringement by or on behalf of the Government is a suit for monetary damages against the Government in the Court of Federal Claims. There is no injunctive relief available, and there is no direct cause of action against a contractor that is infringing a patent or copyright with the authorization or consent of the Government ( e.g. , while performing a contract). (b) The Government may expressly authorize and consent to a contractor’s use or manufacture of inventions covered by U.S. patents by inserting the clause at 52.227-1 , Authorization and Consent. (c) Because of the exclusive remedies granted in 28 U.S.C. 1498 , the Government requires notice and assistance from its contractors regarding any claims for patent or copyright infringement by inserting the clause at 52.227-2 , Notice and Assistance, Regarding Patent and Copyright Infringement. (d) The Government may require a contractor to reimburse it for liability for patent infringement arising out of a contract for commercial products or commercial services by inserting the clause at 52.227-3 , Patent Indemnity.