"I like the free open standard better than the H.264, thanks."
@Mikel: You have that backwards. H.264 is the open standard, developed by the Motion Picture Expert Group under the joint auspices of ISO, IEC and ITU. H.264 is the ITU-R project number - it is also known as MPEG-4 Part 10 Advanced Video Coding, and published as ISO/IEC 14496-10. In order to be published by these organizations, contributors have to sign up to the organizations' patent policy, which says that patents covering the specification must be available on fair, reasonable and non-discriminatory terms - but it does not define what those words actually mean. Due to the wide membership of MPEG and of the standards organizations, it should be less likely that someone later claims that their patent is essential to implementation, and that they can hold implementers hostage, because they haven't signed up to FRAND terms.
US courts have prevented Qualcomm from blocking Broadcom's use of Qualcomm-patented technology in an implementation of H.264, because Qualcomm signed up to the patent policy.
MPEG LA's role is that some of those patent holders have employed MPEG LA to look after their interests, regarding patents considered essential to various MPEG standards. MPEG LA extracts an administration fee before divvying up the royalties among the various patent holders. MPEG LA would *like* to be a one-stop shop for licensing all patents essential to H.264 (and MPEG-2 Visual, and a number of others) but there is no compulsion for other patent holders to join. When they talked about 'forming a patent pool' they were inviting patent holders to make similar arrangements.
VP8's *reference implementation* is published under an open source licence. The *specification* is published on the WebM project's website, and Google provide a royalty-free license all patents that Google owns, or has obtained the authority to sub-licence. Google have recently agreed such authority with MPEG LA for some patents that are part of MPEG LA's other patent pools (and MPEG LA have agreed to stop trying to form a pool for VP8). However, *other* companies could still hold VP8 implementers hostage if they have patents essential to VP8 implementation.
We cannot know whether there are such patents. The national patent offices simply do not organize their patent databases in a way that you can properly search, and there is a disincentive to searching: in the USA, you can get triple damages awarded if you have 'wilfully' infringed, and wilful infringement has been decided if the implementer read the patent and decided that it didn't apply. The exact wording of the patent will only be interpreted in a court case, and courts have frequently applied the widest possible interpretation of the wording. For example, Toyota have to pay Paice Technologies royalties on the Prius and other hybrid cars, even though the patent in question specifically mentions how their implementation is different from the mechanical design used in the Prius, itself taken from an expired TRW patent; the claims were read so widely as to apply to any car that combines a petrol engine and an AC motor, AC provided by inversion from a battery.
However, we do know that Nokia believe they hold such patents, essential to implementing VP8, and therefore the IETF cannot publish the RFC as Nokia refuse to licence them.
I'm not defending patents as they currently stand. I think the issues we see largely represent a failure of imagination of the patent office staff, that they are granting the most obvious patents, combining known techniques in a not-particularly-novel way, and one that would be or was discovered totally independently, with no real exposure to the original implementation. The patent *system* makes it unbelievably difficult to actually find out if the problem you're facing *has* already been solved - if we could look up a solution and know it's going to cost us a dollar per device, rather than spending years on finding a solution, we might pay it. What's galling is when you do spend those years finding the solution, only to have someone say 'no, we invented that - pay $$$ per device' when they actually contributed *nothing* to your solution.
Biting the hand that feeds IT
