Gruber argues that the patent situation around H264 is safer than that around Theora, because he claims Theora is vulnerable to not one, but two types of patents. Not only is Theora vulnerable to "submarine patents", but also to patents that reside in MPEG-LA's patent pool.
Let's talk submarine patents first. This argument has been bandied around quite often now, and if I'm not mistaken, this argument comes straight from Apple. Submarine patents are patents which have been filed, but not granted; this keeps them hidden from the public, and therefore, potential infringers cannot even be aware they're infringing.
Prior to 1995, United States patent law had patent terms run from the date of issuance, while after 1995, patent terms start right at the filing date. This meant that prior to 1995, patent owners could extend their patent's term simply by employing delaying tactics to keep the patent from actually being issued; keeping the application in limbo, if you will. Some submarine patents had a "hidden" time of 40 years (see footnote 27 on page 9).
Since this practice became impossible after 1995, this means that any possible submarine patents threatening Theora must have been issued prior to that year. While this is not impossible, it does negate this threat quite a bit. In addition to that, such a submarine patent could threaten H264 just as well.
Last but not least, we must take into account where this argument hails from. Apple, like Microsoft, has large stakes in the MPEG-LA, making them anything but impartial in this debate. Apple of course has a vested interest in shackling the web to H264, since both its software and hardware have been geared towards this codec. While someone like Gruber, an Apple fan after all, might be sympathetic towards Apple and give them the benefit of the doubt - I certainly wouldn't, and many would agree with me on that one.
The second group of patents Gruber claims Theora might be infringing upon are those that reside within the MPEG-LA's patent pool. Theora supporters have long claimed this is not the case (Theora is patent-free, they say), but Gruber points to an interview with MPEG-LA's CEO, Larry Horn, who claims otherwise.
"No one in the market should be under the misimpression that other codecs such as Theora are patent-free," Horn claims, "Virtually all codecs are based on patented technology, and many of the essential patents may be the same as those that are essential to AVC/H.264. Therefore, users should be aware that a license and payment of applicable royalties is likely required to use these technologies developed by others, too."
When asked to clarify that statement, Horn said that the MPEG-LA believes that some of its patent holders own patents used in Theora. He also added that the MPEG-LA might consider offering a license to Theora users to negate these worries. And thus our true colours reveal.
The interesting part here is not these threats by the MPEG-LA - after all, Theora is a competitor to H264, so anything the MPEG-LA can do to scare people away from it is something they'll do. This doesn't mean they are wrong - it just means that their credibility in this regard isn't very high.
Conveniently, Gruber ignores the more interesting aspect of the above interview: the interviewer also decided, in good journalist fashion, to contact Monty Montgomery, the founder of the Xiph.org Foundation, the body overseeing Theora's and Ogg's development. When asked about the Theora-is-not-patent-free statement, Montgomery was fierce in his reply, which I'm quoting in full.
I predict that MPEG LA may counter that they know groups have been pressured into licensing patents in order to use Theora. This has been a recent back-room assertion. You might want to ask point blank if MPEG LA itself or any of its constituent members has engaged in this practice, thus manufacturing the evidence that "vindicates" their patent allegations. I beg you - tell me immediately if you get a straight answer (or good video of any squirming)!
I'm sure you can tell I'm a bit peeved; this has been going on for over a decade. It's amazing they've never been called out on it.
This is a pretty harsh accusation, and I'd doubt he'd make it if he didn't have any solid evidence backing this up. Then again, just like with the MPEG-LA statements, you have to consider that Xiph competes with the MPEG-LA. When asked about the more direct claim that Theora infringes upon MPEG-LA patents specifically, Montgomery was clear.
"Non-logic," he asserts, "i.e., 'I'm not saying Mr. Strawman is a pedophile. I simply remind you he's regularly seen in the company of children.' MPEG LA has had more than ten years to say anything substantial on this front. They have not." Remind you of something?
Google's Theora endorsement
I'd like to add another argument to this that further negates these so-called patent threats against Theora. If Theora is so sensitive to patents, as MPEG-LA, Apple, and its supporters claim - than why on earth would one of the biggest technology companies in the world ship it as part of its browser and as part of its operating system?
I'm of course talking about Google. Google has implemented support for Theora in its Chrome web browser, as well as in its upcoming Chrome OS. Do you really think a large and visible company like Google, a very attractive target for patent trolls, would include it if it had even the slightest worries about infringement claims? Would one of the world's most profitable tech companies willingly paint such a big bulls-eye on itself, especially now that this debate has been raging for so long?
To sum up: first, submarine patents have been impossible for the past 15 years, which severely limits this supposed threat. Second, the patent claims against Theora come from its competitor, and not from a neutral party; the threats are well-countered by Xiph. Third, Google supporting Theora so openly effectively means that Google believes that Theora's patent threat is minimal.
In fact, this last part is delightfully interesting in light of Apple's original complaint against Theora. Back in 2007, Apple's Maciej Stachowiak argued that while Ogg/Theora/Vorbis are free of patents now, they might get into trouble later on.
"Although the Ogg codecs don't have known patents that aren't RF licensed, it's not completely clear that none of the patents out there on video/audio encoding apply," he argued, "Often, parties holding a submarine patent wait for a company with very deep pockets (like Apple, or Microsoft, or Google) to infringe on the patent before they sue."
Even though I don't like to use this term (too convenient a discussion killer), all this looks and smells like "FUD", propagated by those with a vested interest in shackling the web to H264.