FAR 52.227-1—Authorization and Consent.
Plain-English Summary
FAR 52.227-1, Authorization and Consent, tells contractors when the Government is giving permission for patent use and manufacture in performing the contract, and how patent infringement liability is handled when that permission applies. The clause covers use and manufacture of patented inventions in the performance of the prime contract and any subcontract at any tier, including inventions embodied in accepted deliverables and inventions necessarily used because the contractor must follow contract specifications or written directions from the Contracting Officer. It also addresses the relationship between this authorization and any indemnity clause in the contract, stating that the Government’s liability for patent infringement is limited by any applicable indemnity clause and otherwise rests on the authorization and consent granted by the clause. The subcontracting paragraph requires contractors to flow the substance of the clause, including the subcontracting requirement itself, into subcontracts expected to exceed the simplified acquisition threshold, while also making clear that failure to include the clause in a subcontract does not eliminate the Government’s authorization and consent. The alternates modify the basic clause for special situations: Alternate I provides a broader, simpler authorization for all use and manufacture in performance of the contract or any subcontract, and Alternate II applies to certain communications services and facilities contracts where rates, charges, and tariffs are not established by a government regulatory body. In practice, this clause is important because it reduces the risk that contractors or subcontractors will face patent infringement exposure for complying with Government requirements, while also preserving the Government’s ability to control how that protection is extended through contract structure and subcontract flowdown.
Key Rules
Government grants patent consent
The clause is an express authorization and consent by the Government for use and manufacture of patented inventions when they are performed in connection with the contract. This consent is what helps shield contractors and subcontractors from patent infringement claims for covered activities.
Covered inventions are limited
Under the basic clause, the protection applies to inventions embodied in accepted deliverables and to inventions used in machinery, tools, or methods that are required because the contractor must comply with contract specifications or written instructions from the Contracting Officer. It does not create a blanket waiver for all patent use.
Indemnity clause controls Government liability
If the contract or subcontract includes an indemnity clause, the Government’s liability for patent infringement is determined solely by that clause. For all other infringement covered by the authorization and consent, the Government assumes liability only to the extent of the consent granted.
Flowdown required above SAT
The contractor must include the substance of the clause, including paragraph (b), in all subcontracts expected to exceed the simplified acquisition threshold. This ensures subcontractors are put on notice of the patent authorization and the related flowdown obligation.
Omission does not void consent
Even if the contractor fails to include the clause in a subcontract, the Government’s authorization and consent is not lost. The omission may create contract administration or compliance issues, but it does not eliminate the underlying Government consent.
Alternate I broadens the consent
Alternate I replaces paragraph (a) with a broader statement authorizing and consenting to all use and manufacture of any patented invention in performance of the contract or any subcontract at any tier. This alternate removes the more detailed limitations in the basic clause.
Alternate II is for certain communications contracts
Alternate II applies to orders and subcontracts under contracts for communications services and facilities where rates, charges, and tariffs are not set by a government regulatory body. It authorizes and consents to use and manufacture in performance of those orders and subcontracts, with the same basic categories of covered patented inventions.
Responsibilities
Contracting Officer
Insert the correct version of the clause when prescribed by FAR 27.201-2. Ensure the contract uses the basic clause or the proper alternate based on the type of acquisition, and understand how any indemnity clause affects patent liability.
Contractor
Comply with the clause by using the Government’s authorization and consent only for covered patent use and manufacture in performing the contract. Flow the substance of the clause, including paragraph (b), into subcontracts expected to exceed the simplified acquisition threshold.
Subcontractor
Rely on the authorization and consent only for patent use and manufacture tied to performance of the subcontract or higher-tier contract requirements. Include the clause further down the subcontract chain when required by the prime contractor’s flowdown obligations.
Government
Provide authorization and consent for covered patent use and manufacture and accept liability for infringement only to the extent stated in the clause and any applicable indemnity provision.
Legal/Contracts Staff
Review whether the basic clause or an alternate applies, identify any indemnity clause that changes liability allocation, and verify that required patent flowdowns are included in subcontracts above the simplified acquisition threshold.
Practical Implications
This clause is a liability-allocation tool, not a general patent license; contractors should not assume it covers every patented technology used on a job.
The biggest compliance issue is subcontract flowdown: primes must remember to include the substance of the clause in subcontracts expected to exceed the simplified acquisition threshold.
If the Government directs a specific method or requires compliance with detailed specifications, patent exposure for the required means of performance is more likely to fall within the clause’s protection.
An omitted flowdown does not erase Government consent, but it can still create disputes, administrative problems, and gaps in subcontractor notice.
When an indemnity clause is present, it may override the default liability treatment, so teams should review the full contract package rather than reading 52.227-1 in isolation.
Official Regulatory Text
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.