It makes sense that if a contractor is performing work for the government there be limits on the ability of a third party to sue the contractor for infringement and as a result stop government performance. A statute has been provided to avoid this problem by providing if a patented invention is used “by or for the United States” then (1) an exclusive court jurisdiction exists in the US Court of Federal Claims for a suit by a patent owner against the government, not against the contractor, where remedies are money damages not injunction against performance and (2) an alleged infringing contractor has an affirmative defense for action by a patent holder.

There is a two part test to determine the existence of authorization and consent (A and C) – the invention has to be used “for the government and with the authorization or consent of the government.” A and C can be implied or express. Authorization and consent can be implied by, for example, CO direction, specifications or drawings that necessitate patent infringement or government knowledge of the infringement. Express authorization, which is more common, is found in the clause FAR 52.227-1, Authorization and consent.

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