Clauses · FAR · Data rights
FAR 52.227-3 Patent Indemnity
Does the regulation require it to flow down?
No
The basic clause has only paragraphs (a) and (b) and contains no paragraph requiring insertion in subcontracts (verified on the clause page 2026-08-05); FAR 27.201-2(c) prescribes nothing about subcontracts either. Alt III mentions 'subcontracts at any tier for communication service' but only to LIMIT where the clause applies — it commands no insertion. Primes flow it down because the indemnity is the money side of 52.227-1's shield: the Government authorizes the infringement (52.227-1), then reclaims the cost from the contractor here, and the prime wants a matching claim against whoever actually built the infringing thing. RTX makes the mechanism explicit in section 7.5.2 of its Nov 2024 flow-down: it incorporates 52.227-3 by reference and substitutes 'Supplier', 'Buyer', 'Order' and 'Buyer' for 'Contractor', 'Government', 'contract' and 'Contracting Officer' — turning a Government-facing indemnity into a prime-facing one.
A clause can reach your subcontract without a mandate. Once it is in your document, it is a contract term all the same. The missing mandate is a fact about the regulation. It is not a ruling on your order.
Checked against acquisition.gov on 2026-08-05 · edition APR 1984 (Basic; Alt I APR 1984, Alt II APR 1984, Alt III JUN 2020) · base v0.9.3 Read the text ↗
What it makes you produce
One item for your checklist.
Nothing to send now
It does not hold the order. It decides what money moves later — what you can claim, what can be claimed from you, and what can be held back — and none of that changes after signature.
- 52.227-3(a)
Nothing to send: you carry the cost of a United States patent infringement claim, including the costs of defending it — exposure that sits in the price rather than in a deliverable
Owed when the claim arises out of the manufacture or delivery of supplies, the performance of services, or construction work under the order
When it is used
FAR 27.201-2(c)(1): insert in solicitations and contracts 'that may result in the delivery of commercial products or the provision of commercial services' unless (i) part 12 procedures are used; (ii) the simplified acquisition procedures of part 13 are used; (iii) both complete performance AND delivery are outside the United States; or (iv) the contracting officer determines, after consulting legal counsel, that omission would be consistent with commercial practice. The inversion matters: this is the one patent clause aimed at commercial supply, and it disappears the moment the buy is actually made under Part 12. Alt I or Alt II per 27.201-2(c)(2) when the contract also requires items that are not commercial products or services that are not commercial services, or when the CO limits its applicability; Alt III per 27.201-2(c)(3) for unregulated common-carrier communication services not priced by a tariff schedule.
Read closely
Paragraph (b) holds the limits: the indemnity does not run at all unless you were told of the suit as soon as practicable and given the chance the law allows to take part in the defense, and it never covers infringement that came out of the buyer's own written instruction to change something, out of changes made after delivery, or out of a claim settled unreasonably without your consent. One prime rewrites the party names so the indemnity runs to it rather than to the Government.
Alternates
Alt I · APR 1984
FAR 27.201-2(c)(2) — the contract also requires delivery of items that are not commercial products or the provision of services that are not commercial services, or the CO determines after consulting legal counsel that limiting the clause is consistent with commercial practice.
Alternate I adds a blank listing the items the indemnity does not cover, filled in by the contracting officer. It changes how far the exposure reaches rather than what you hand over, and that blank is the only dollar control the clause offers.
Alt II · APR 1984
FAR 27.201-2(c)(2) — same trigger as Alt I; the CO picks inclusion or exclusion drafting.
Alternate II is the mirror: a blank listing the items the indemnity does cover, so anything unnamed falls outside it. Same absence of paperwork, opposite default.
Alt III · JUN 2020
FAR 27.201-2(c)(3) — solicitation or contract for communication services and facilities where performance is by a common carrier and the services are unregulated and not priced by a tariff schedule set by a regulatory body.
Alternate III limits the clause to individual communication service authorizations above the simplified acquisition threshold for services already sold to the public or needing only minor modification. It is a ceiling on scope and commands nothing to be produced.
The 4 templates that name it, with the line
Source: acquisition.gov, FAR 52.227-3 and FAR 27.201-2(c) (verified 2026-08-05); RFO Part 27 model text at acquisition.gov/far-overhaul/far-part-deviation-guide/far-overhaul-part-27 and DoD class deviation 2026-O0036 (verified 2026-08-05)
This is research, not legal advice. It states what the regulation says about this clause and cites the paragraph behind it. It does not rule on your order, and it does not rule on whether a prime's markings are correct.