FAR 52.227-5—Waiver of Indemnity.
Plain-English Summary
FAR 52.227-5, Waiver of Indemnity, is a patent-related contract clause used when the Government wants to authorize and consent to the contractor’s use and manufacture of specific patented inventions solely for performance of the contract, while also waiving any contractual indemnification requirement tied to those patents. The clause is prescribed by FAR 27.201-2(e), so it is not a general-purpose clause; it is inserted only when the contracting officer determines it is appropriate for the identified patents. This section addresses the scope of the Government’s authorization and consent, the limitation that the permission applies only to performance of the contract, the requirement to identify the covered patents by number or other suitable means, and the Government’s express waiver of indemnity by the contractor for those patents. In practice, the clause protects the contractor from having to indemnify the Government for patent use that the Government has specifically authorized and consented to, but only for the patents listed and only within the contract’s performance. It is important because it allocates patent risk, clarifies the Government’s position on infringement-related authorization, and can affect pricing, risk management, and negotiations when patented technology is involved. Contractors and contracting officers should treat the clause as a targeted legal risk-allocation tool, not as a blanket patent license or a broad waiver for all intellectual property issues.
Key Rules
Clause is prescription-based
This clause is inserted only when prescribed by FAR 27.201-2(e). It is not automatically used in every contract and should be included only when the contracting officer has determined it is appropriate for the specific patent situation.
Government authorizes and consents
The clause states that the Government authorizes and consents to the use and manufacture of the identified patented invention. This matters because it addresses the Government’s position on patent use during contract performance and limits disputes over whether the contractor was acting with Government approval.
Applies only to contract performance
The authorization and consent are limited to use and manufacture solely in performing the contract. The clause does not grant a general right to use the patents outside the contract, for other contracts, or for unrelated commercial purposes.
Patent identification is required
The contracting officer must identify the covered patents by number or by another appropriate means. The clause only applies to the patents specifically listed, so precision in identification is essential to avoid ambiguity or unintended coverage.
Indemnity is waived for listed patents
The Government waives indemnification by the contractor with respect to the identified patents. This means the contractor is not required, under this clause, to indemnify the Government for claims tied to those listed patents within the scope of the contract performance authorization.
No broader IP waiver
The clause is limited to the identified patents and the indemnity issue addressed in the clause. It does not waive all intellectual property rights, does not cover unlisted patents, and does not eliminate other contractual or legal obligations that may still apply.
Responsibilities
Contracting Officer
Determine whether FAR 27.201-2(e) calls for use of the clause, identify the applicable patents clearly and accurately, and ensure the clause is inserted only for the intended contract scope. The contracting officer should also avoid overbroad patent descriptions that could create uncertainty about what is covered.
Government
Provide authorization and consent for the contractor’s use and manufacture of the identified patented invention solely for contract performance, and waive indemnification by the contractor for those listed patents as stated in the clause.
Contractor
Use and manufacture the identified patented invention only to perform the contract, and understand that the waiver applies only to the listed patents and only within the contract’s scope. The contractor should still manage any remaining patent, licensing, or infringement risks not covered by the clause.
Practical Implications
This clause can materially reduce a contractor’s exposure to indemnity obligations when patented technology is required to perform the work, but only for the patents specifically identified in the contract.
A common pitfall is assuming the clause covers all patents or all intellectual property issues; it does not. Unlisted patents, third-party rights, and uses outside contract performance remain outside the waiver.
Contracting officers should be careful to identify patents precisely, because vague or incomplete identification can lead to disputes about whether the waiver applies.
Contractors should confirm whether the clause is present before relying on any assumption that patent-related indemnity has been waived, especially in technical or manufacturing contracts.
Because the clause is tied to contract performance only, contractors should not treat it as permission for downstream commercial use, reuse on other contracts, or broader production beyond the contract requirement.
Official Regulatory Text
As prescribed in 27.201-2 (e) , insert the following clause: Waiver of Indemnity (Apr 1984) Any provision or clause of this contract to the contrary notwithstanding, the Government hereby authorizes and consents to the use and manufacture, solely in performing this contract, of any invention covered by the United States patents identified below and waives indemnification by the Contractor with respect to such patents: __________________________________________________ [ Contracting Officer identify the patents by number or by other means if more appropriate .] (End of clause)