What a lot of nonsense
As someone who has worked in the digital video field for a few years, the sheer quantity of nonsense that's been spouted about Google's open-sourcing of VP8 vs H.264 by people who clearly have no idea what they're talking about is amazing. It seems any story involving the words "open source" and "patents" results in pages of comments that look like they've been generated by a tech version of the Twat-O-Tron.
H.264 is a coding format, it's an ISO standard and it isn't patented as such. It does however make use of many different compression techniques which are patented. There's a lot of them - the document listing all the patent numbers on the MPEG-LA web site is 56 pages long and the patents are held by 26 different organisations. These patents aren't specific to H.264; any similar type of codec is likely to infringe a number of the same patents, so the fact that MPEG-LA is looking at VP8 isn't in the least bit suprising. Indeed it would be pretty hard to come up with a codec of this type that didn't infringe some of these patents.
Personally I don't agree with software patents, but they exist and that's the world that companies like Apple, Microsoft and all operate in. Some commenters seem to have the bizarre idea that H.264 is a conspiracy by Apple and Microsoft to "lock" people in to something that's "closed". There's nothing closed about H.264 though, it's a proper standard supported by a huge range of software and hardware from hundreds of suppliers, including open source encoders and decoders. One of the good things about it is that it's not controlled by a single company. I think people are confusing "open" with "free", which it clearly isn't if you're doing anything commercial with it.
When companies like Apple and MS talk about "uncertainty" being a factor against using 'free' video codecs, I think they mostly mean what they say. H.264 is highly encumbered with patents, but at least you know what they are and how much they cost, which is important for any commercial enterprise. Using a codec which doesn't have a clear licensing system is risky, because people could come after you for payments of unpredicatable size at a later date.
I'm not entirely sure why Google is choosing to fight this battle now, but I doubt it's for altruistic reasons. Maybe they figure that after a long drawn-out bout of legal sniping they will be able to force the MPEG-LA consortium into a compromise which gives Google a deal on terms that are much better than those they could obtain today. As Google's ambitions almost certainly involve making serious money out of video streaming, this could be worth far more to them than the cost of buying On2 and giving the technology away. Anyone have any better theories?