What is infringement?

Infringement is the violation of, trespass, or encroachment upon a property right of another. This term is used especially in regard to invasions of the rights secured by copyright, patents, and trademarks. Sponsors will often include contract clauses requiring indemnity for the infringement of copyrights, patents, and trademarks.

How is infringement treated in government contracts?

Copyright and patents are treated differently.

Patents. In R&D contracts, the government authorizes and consents to the use of any U.S. patent in performance of the work. (FAR 27.203-1, Alternate 1)  The contractor is not required to indemnify the government for any infringement. Make sure this alternate is included in our contracts. In contracts for supplies and services that normally are or have been sold or offered for sale to the public in the commercial open market, the government authorizes and consents to use of any U.S. patent but also requires indemnity from the contractor. 

Copyrighted software. The government requires contractors to identify any commercial software that will be used and requires certain rights to that software. The FAR 52.227-19 Commercial Computer Software – Restricted clause establishes the government’s rights to the commercial software such as;

• Use or copy for use in or with computers for which it was acquired
• Backup copies
• Modify, adapt, or combine as long as derivative software is subject to same restrictions as original software
 

 (See also: Data Rights)

Can Virginia Tech agree to indemnify for infringement?

No. State law prohibits a state agency from agreeing to indemnification without approval of the Governor. (See also: Indemnification)

What should you look for in reviewing indemnity provisions?

• We will normally be doing R&D work, so in government prime contracts and subcontracts make sure the R&D Alternate I is included.
• Take exception to any indemnity requirements and negotiate alternate language if necessary.