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 LWN.net 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: costs
by lemur2 on Mon 1st Feb 2010 12:22 UTC in reply to "costs"
lemur2
Member since:
2007-02-17

With H.264 you know how much you will have to pay. With Theora, there is always the risk that some obscure company attack you for patent violation. Since Theora is not developed and marketed by a large company, you will be on your own to pay advocates. In the case of H.264, MPEG-LA would probably take care of the issue, because they would want to continue selling licenses.

So it's not plain stupid... it's just a choice. Do you want to pay a known fee, or to gamble? It's not because something is open, that some part of it has not been patented earlier. The only real solution is to ban software patents ;)


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 Xiph.org 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.

http://en.wikipedia.org/wiki/On2
In late 2001, On2 released their VP3 compression technology into the open-source community including their patents on the technology. The technology lives on in the form of Theora.


The thing is, VP3 is an older codec (late 2001) than h264. That means that the USPTO has granted different patents firstly to VP3, and then later to h264.

http://en.wikipedia.org/wiki/H264
The final drafting work on the first version of the standard was completed in May 2003.


So, if the USPTO is correct, and the technology they awarded patent(s) for in h264 was indeed new and innovative technology, then VP3 and hence Theora does not use any technology in h264.

Also, if the USPTO is correct, the VP3 was new and innovative technology some time before 2001. Patent trolls are going to have a hard time attacking it.

If the USPTO is incorrect, and they have granted a patent firstly to VP3 and then over two years later a patent for the same technology to h264, then that would be a "my bad" for the USPTO ... but the winning patent would be the earlier one, not the more recent one.

Hence it is more likely in a patent war that Theora/VP3 would prevail over h264 rather than the other way around, as many people apparently mistakenly imagine.

Edited 2010-02-01 12:33 UTC

Reply Parent Score: 3

RE[2]: costs
by _LH_ on Tue 2nd Feb 2010 07:18 in reply to "RE: costs"
_LH_ Member since:
2005-07-20


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 Xiph.org 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.

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.

Reply Parent Score: 3

RE[3]: costs
by lemur2 on Tue 2nd Feb 2010 09:09 in reply to "RE[2]: costs"
lemur2 Member since:
2007-02-17

"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 Xiph.org 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

Reply Parent Score: 2