Big games are shipping with both theora and vorbis. Nobody sued them. Also Youtube used VP6 and VP7 for a while which were just slight modifications of VP3, just like Theora. And nobody sued Youtube. So why would they wait for theora to become used if they could have just sued google? Doesn't make sense.
Whilst there are many big games which use Vorbis (Halo comes to mind) as far as I know there are none that use Theora. Most use Bink because of its simplicity.
Youtube have never used any On2 VPx codec to my knowledge, but Adobe Flash and basically every video site on the web used them up until about 2 years ago when they started to transition to H.264 (though many still use it for certain bitrates) so your basic point remains that lots of companies, big and small, used or are using it right now without any patent problems.
(I assume Flash on mobile phones means they'll now all be exposed to the exact same patent risk too)
Because they don't want to sue google first. (There are much easier things to sue google/youtube over right now.) They want to sue a smallish company who will "license" rather than fight because they can't afford to. After a few of those build up some precedence, then they go after the really big fish.
For the submarine to work on this type of thing, you have to wait until a great many players of all sizes adopt a technology and commit to it.
I'm not saying we shouldn't use theora. We should keep our options open and use everything. I'm just saying that whatever becomes the dominant standard, be prepared for "I'm a pc and windows 7 was my idea", only with lawyers and stuff.
