If by “Digital TV” you mean over the air free broadcasting, no country I am aware of has ever adopted a proprietary solution instead of a standard for codec (perhaps someone can site an exception, I’d be interested in hearing of one). Of course this is not true for subscription TV services, but even then I don’t know of any that did not end up adopting a standardized codec (albeit royalty bearing). There is a wider variety in optical media formats.

The Whatwg group analogy may or may not be apt — it was a different era in 2004 for founders and original copyright holders Apple, Mozilla, and Opera, when the group was announced “with the intention of submitting the results to a standards organisation. This submission would then form the basis of work on formally extending HTML in the standards track” (http://www.whatwg.org/news/start, http://www.whatwg.org/specs/web-apps/2005-09-01/). Google and WebM may have such an intent, but it has not been yet stated. Inclusion in Android, though, has been announced.

You are right that standards disclosure processes are not perfect, but they are much better than you imply, and in recent years they have been both upheld in litigation and tightened. The Broadcom v. Qualcomm case is well worth reviewing — Qualcomm got in huge trouble, including penalties, for trying to get around the JVT disclosure process.

Generally disclosure processes allow both disclosure of the patents of others and of non-participants. In the case of non-participating patent holders, the standards group typically has an obligation to contact the identified patent holder and request they sign the disclosure form. You are right that the third party could refuse to sign (or simply declare the patents are only available on a royalty basis), in which case the standards group if so inclined would simply remove the patent. Even ANSI, which some see as a “pro-patent” process, has this kind of procedure.

There is also the real possibility of a patent holder transferring patents to another company to evade disclosure requirements — whether someone could really get away with such deception is the subject of the VIZIO antitrust suit mentioned in the article. But that would obviously be a pretty high risk strategy on the part of a patent holder.

Consider the distinctly unappealing alternative of doing nothing and letting existing patent pool administrators take their time and put together pools on their own time frame and under their own controlled, confidential essentiality determinations and negotiations (check the recent Nero lawsuit — patent pools are taking huge leeway in determining what patents to put in their pools and when to disclose what patents are in them). Assuming Google has done even some of the patent homework they claim, they should disclose and not leave the industry on its own on this.

You seem to be either mistaken or naive on the ability of a standards body to produce a good result when patents are involved.

In particular, let us look at this statement from your article: “Contributing VP8 to a standards group with a strong patent disclosure policy would be a good corrective move; it would force lurking patent holders to come fully into the public.”

Standards bodies have no power over companies that are not members of that body. For example, if VP8 were given over to the W3C, only W3C member companies, and particularly only those who had joined the relevant Working Group working on the problem, have to disclose any patents. Any other company can merrily ignore the call for disclosures.

The only reason to join a standards body in the first place, and the working group in question, is if you want a hand in the development of the standard around the technology. If you’re a patent troll, though, you have no incentive to do so. You want to ensure that the standard incorporates some technology that you own a patent on, but beyond that you have no interest in contributing to the technology, and would in fact prefer that nobody knows of your interest so that you can stealth-sue sometime in the future.

So, having the technology owned by a standards body would not guarantee, or even strongly suggest, that all relevant patents are known about.

Further, “disclosing” is not the same things as “licensing royalty-free”. A company can disclose a patent they hold during the call for disclosures, and maintain their license. This merely means that they reserve the right to police their patent, and in practice means that the standard must avoid infringing on that patent.

So, even among the companies who are legally bound to disclose their relevant patents, disclosure does not in any way guarantee a royalty-free standard.

So, your argument that Google submitting VP8 to a standard body would create a better patent landscape is false. Such an action certainly has advantages, but this is not one of them.

For those unaware: the W3C (in charge of web standards) kind of lost its way for a while, working on an improved HTML called XHTML that was of little or no use to the real world. Much of their standardisation energy was diverted by telcos working on lucrative content delivery schemes within the walled gardens for the mobile web (i.e. not the actual real web you get on an iPhone, or even with Opera Mini or Mobile, but WAP stuff and things that the carrier charged you for viewing).

Rather that just sit by and let this disaster unfold, Apple, Google, Mozilla and Opera set up their own group outside of the standardisation process and started work on what would become HTML5. After a few years of rapid progress the W3C realised they’d picked the wrong horse and HTML5 was brought back into the fold, though not without a lot of wailing and moaning.

I’m guessing that’s at least partly what Google is hoping for with this move.