Re: [rtcweb] Google VP8 Patent Grant for third parties [Was Re:Proposal for H.263 baseline codec]

Marshall Eubanks <> Fri, 06 April 2012 03:37 UTC

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Date: Thu, 05 Apr 2012 23:37:28 -0400
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From: Marshall Eubanks <>
To: Stephan Wenger <>
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Subject: Re: [rtcweb] Google VP8 Patent Grant for third parties [Was Re:Proposal for H.263 baseline codec]
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On Thu, Apr 5, 2012 at 6:33 PM, Stephan Wenger <> wrote:
> Hi,
> Joining the fun again, so that Paul does not feel lonely...
> Albeit at a slower pace, due to day job requirements plus splendid (and
> plentiful) Sierra snow :-)
> Stephan
> On 4.5.2012 14:33 , "Silvia Pfeiffer" <> wrote:
>>On Fri, Apr 6, 2012 at 4:50 AM, Paul E. Jones <>
>>>> > Indeed, but I have a significantly higher level of confidence that I
>>>> > can identify all of the legitimate companies with IPR on H.264,
>>>> > whereas I haven't a clue where to start (outside of Google) for VP8.
>>>> Obviously, that makes H.264 so much safer, right?
>>> Motorola is a known patent holder.  So if Microsoft.  I assume Microsoft
>>> elected to ignore Motorola's patent claims, and I assume Motorola
>>> Microsoft's patents, too, as I'm sure there would have been a
>>> agreement in place otherwise.  I don't know, but if you want to use
>>> then you would have known to talk to Motorola and MS.
>>So what's the point in having the patent pool if you have to talk to
>>all the individual patent owners anyway?
> The answer to this rhetoric question is twofold.  The obvious part is that
> it's usually cheaper and easier to pick one license from a pool at known
> and published terms than to negotiate a license with all those
> rightholders outside of a pool arrangement (which, by the way, is an
> option some companies have chosen).  The less obvious part is that the
> percentage of patents in a pool reading on a standard is normally
> substantial.  For H.264, one estimate I have heard (and that I believe
> could well be realistic) is 80%.  As the terms of the pool and the number
> of patents therein are known, one can calculate a "market price" for a
> patent license reading on H.264.  It's not that easy for a rightholder
> outside the pool to ask for royalties substantially higher than what the
> pool charges (and get away with it); at least not without raising concerns
> about the fairness and reasonableness of said rightholder.  Which one of
> the more important aspects of what currently happens in the antitrust
> activity going on in Europe in the Moto/MS case.  As I have said in the
> meeting: FRAND has recently gotten teeth.  I firmly believe so.

I think that the EC may agree with you :

"Following complaints by Apple and Microsoft, the Commission will
investigate, in particular, whether by seeking and enforcing
injunctions against Apple's and Microsoft's flagship products such as
iPhone, iPad, Windows and Xbox on the basis of patents it had declared
essential to produce standard-compliant products, Motorola has failed
to honour its irrevocable commitments made to standard setting
organisations. In these commitments, Motorola engaged to license those
standard-essential patents on fair, reasonable and non-discriminatory
(FRAND) terms. The Commission will examine whether Motorola's
behaviour amounts to an abuse of a dominant market position prohibited
by Article 102 of the Treaty on the Functioning of the EU (TFEU)."

I believe that the primary SSO of issue here is ETSI.


>>>> > If I owned IPR on VP8 (which I don't personally; can't speak for my
>>>> > employer), I certainly would not tell you and I would not join a
>>>> > patent pool, either.  I would wait until you adopt VP8, build it into
>>>> > software and hardware products, have it massively deployed, and then
>>>> > I'd come along and collect my royalties.  There is absolutely no
>>>> > financial incentive for an IPR holder to join a patent pool.
>>>> I assume this is why we've seen all these lawsuits against Google,
>>>> Microsoft, Cisco, Apple... over their use of Vorbis and Speex, right?
>>>> Seriously, I can count at least 10 free AV codecs and none of them have
>>>> had any patent lawsuits that I'm aware of.
>>> The "why" is unknown. It might be that a license was acquired. It might
>>> that patent holders do not care since the same companies are already
>>> licensing their patents.  Perhaps the usage is not as high as other
>>> including MP3 and G.729?
>>You might be surprised about the usage - a substantial amount of games
>>use Vorbis because they don't have to pay for a license. Indeed, it is
>>well known that Microsoft's Halo used Vorbis. For that very reason, I
>>doubt that any of those companies acquired a patent license from any
>>company claiming to own a patent on Vorbis or Speex. In fact, since
>>nobody has claimed to have such patents, how would you even know who
>>to license it from?
> The vast majority of patent disputes never see a courtroom and never get
> published.  A rightholder sends a letter alleging infringement, the
> parties meet, a license is being negotiated (the terms may or may not
> include a monetary component), and that's the end of it.  Outside of
> certain ideologically restricted circles, pragmatic solutions can be found
> rather easily in many cases.
>>>  The fact there isn't a lawsuit does not mean these
>>> are free from patents, unless the technology is so old patents are
>>> (I think that's one argument for using H.261, in spite of its small
>>> sizes.)
>>Existing lawsuits are the only quantitative measure that is available
>>to find out about whether somebody is prepared to fight for their
>>patents on a technology. Even patent pools don't work for this,
>>>> The best interest of a H.264 patent owner is to avoid having to
>>>> wait for adoption, and then be free to ask for a lot more than what
>>>> would get from the patent pool. This is why I consider H.264 to be a
>>>> higher risk than VP8. The current Motorola lawsuit confirms this.
>>> The Motorola lawsuit does not confirm this at all.  This is nothing but
>>> fight between those two companies, both of which were likely aware of
>>> others' IPR here.
> Paul is correct here.  Motorola did not come out of the woods.  The
> patents asserted are well known, and at least one of them has been
> asserted and litigated before (in an MPEG-2 context) if I recall
> correctly.  They were also declared as being available under RAND terms in
> both ISO/IEC an the ITU.
>>> You're ignoring one point I made.  Those involved in the creation of
>>> have quite likely filed IPR statements with ISO or ITU.  If some other
>>> company were to come out of the closet on this with something that
>>> blindsides the industry, the industry would fight it.  At the very
>>> whatever bit of IPR that is claimed would have to be put into
>>> with respect to the other hundreds of patents on H.264.
>>If somebody was to come out of the woodworks over VP8, I'd expect
>>Google to fight them. And all the other companies that have now
>>invested into VP8. I don't think patents mean anything when it comes
>>to the decision of whether to fight a patent claim or not: money
>>> H.264 has already become widely deployed.  Work is well underway on
>>> now.  So, there are patent trolls out there, right now is the time to
>>> filing lawsuits.  And as I said, the reputable companies would have
>>> disclosed IPR and you'd know to talk to them.
>>> VP8 is a technology where nobody other than Google has to answer about
>>> BT, Oki, France Telecom, Qualcom, Nokia, Microsoft, Sony, NTT,
>>>Motorola, TI,
>>> etc. are not obligated to make a statement, yet it would not surprise
>>>me in
>>> the least if these companies do not have IPR.  Whether the enforce it is
>>> another matter.  They will only if it is in their interest.
>>If they've decided to use VP8, they license makes them take choose
>>sides. There's no need for a patent pool to force them to take sides
>>(in fact, that doesn't seem to have worked for Motorola and Microsoft
>>rtcweb mailing list
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