Linked by Thom Holwerda on Sun 31st Jan 2010 14:20 UTC, submitted by lemur2
Internet & Networking Despite the recent interest in adopting HTML5's video tag, there is still one major problem: there is no mandated standard video codec for the video tag. The two main contestants are the proprietary and patended h264, and the open and free Theora. In a comment on an article about this problematic situation, LWN reader Trelane posted an email exchange he had with MPEG-LA, which should further cement Theora as the obvious choice.
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RE[3]: costs
by lemur2 on Tue 2nd Feb 2010 09:09 UTC in reply to "RE[2]: costs"
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"There is the point, as has already been mentioned more than once on this thread, that Theora is based on the VP3 codec, and that have obtained an irrevocable royalty-free license for the VP3 patents so that they can develop and distribute Theora.

You read it right ... Theora itself is based on patented technology. On2 are the owners of that patent.

Well, On2 is the only known owner of Theora related patents. You can't patent a video codec as is and get a stamp of approval from USPTO that this is the one and only patent covering the codec.

Well, actually, as it turns out, that is exactly what the grant of a patent by the USPTO is supposed to be a stamp of approval for.

What you can do is to patent parts of codec and maybe some relations between the parts but you can't sort of patent it all. Besides, a video codec is very likely to include some well-known parts such as DCT and motion estimation which you even can't patent because of prior art or existing patents.

This makes it quite likely (not in this specific case but generally) that even if you had some patents on your product, it doesn't mean that it wouldn't violate somebody else's older patents. Besides even your patents could be invalid because USPTO generally does a lousy job and many patents are invalided later by a court.

No. Firstly, what is being patented is the method of compression of digital video data. The idea of "codec" (as in encoder/decoder) itself is quite old and therefore un-patentable. Heaps of prior art.

However, a few years before 2001, the methods of compression of digital video were all new. If there are earlier patents that made the same claims as to the method of compression as were made with On2's patent application for VP3, then the USPTO would not have granted the patent to On2.

Therefore, there were no parts of the compression methods of VP3 that On2 could not patent because of prior patents. These would have turned up in a patent search, and On2 would have had to be paying someone a license for those technologies. They weren't. The fact that they weren't paying anyone a license for earlier applicable patents is precisely what allowed On2 late in 2001 to give the VP3 patents to open source in the first place.

If there were previous applicable patents, and parts of VP3 were licensed from some other party, then VP3 wouldn't have been of any use to open source in the first place.

So there are no applicable prior patents.

As for the other parts of the method in VP3 that On2 could not patent because of prior art ... it follows that no-one else could have a prior patent for that either, also because of the selfsame prior art.

If anything, on the balance of probabilities, given the age of VP3, and the time-frame when digital video compression suddenly became something one would want to do, On2 are far more likely to be in the position of the ones to become a patent troll, rather than be the ones who are trolled against.

Remember the vintage ... On2 gave over the VP3 technology, including applicable patents, to open source in late 2001. That meant that in late 2001, VP3 was already seen by On2 as "obsolete technology". That in turn meant that the timeframe for On2 getting these patents in the first place is back in 1995-1998 period. Windows 95 did not even ship with a TCP/IP stack ... so much for the scope and presence of the Internet in that timeframe.

Edited 2010-02-02 09:20 UTC

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