By "people who have actually implemented h.264 and are familiar with patents", I assume you mean Jason Garrett-Glaser from his x264dev blog ( http://x264dev.multimedia.cx/archives/377 ). There aren't any patents explicitly mentioned, just that vp8 "feels" a lot like h.264. In that post, there was only one reference to a specific feature, the intra prediction, which was updated with "Update: spatial intra prediction apparently dates back to Nokia’s MVC H.26L proposal, from around ~2000. It’s possible that Google believes that this is sufficient prior art to invalidate existing patents — which is not at all unreasonable!".
The idea that VP3's prior release making AVC infringing is pretty stupid.
You make a valid point that I should have acknowledged. That said, what I'm doing is comparing this post, which seems deeply uninformed, to Garret-Glaser's post, which isn't.
I'm not expert on video patents either. The overarching issue is, this post seems to think the IP situation with WebM is virtually cut-and-dry, and we have every reason to believe it isn't.
I don't think "it probably infringes software patents in the US" is a reasonable argument against using a specific piece of software. Aside from the arguments against the legitimacy of software patents, it's practically tautological to say that non-trivial software infringes on patents, somewhere.
Here's the problem with that line of argument: while it may hold true for software patents, when it comes to online video one of the fastest growing categories of end-users are people viewing video on mobile and embedded devices. These devices use dedicated hardware to decode video without killing the available power budget. If there is anything behind the claims that WebM infringes upon MPEG-LA patents then you are not going to see the lawsuits drop until real devices are shipping with dedicated hardware decoders. Such devices are easier to nab at borders and by getting an injunction against the importation of these devices the MPEG-LA would also start the process with an action that will directly hurt the bottom-line of the alleged infringing party.
If I understand correctly, the h264 license would protect these device makers from lawsuits since the devices probably decodes both h264 and WebM. Thus they already have a license to the patents and the MPEG-LA can't do anything about them.
I don't think that's the argument being used. I think the argument is that there is no reason to believe that you are less likely to get sued for using WebM than if you use h.264. If you use WebM, there's just a bit more uncertainty about who will sue you.
To be fair, however, the OSNews post is questioning Gruber's post, which is at least equally if not more (and, IMO, it is more) misinformed, illogic, and ignorant.
The idea that VP3's prior release making AVC infringing is pretty stupid.