How Yahoo won the Bedrock patent trial that Google lost (Thomson Reuters)

Pooling probably wouldn't have worked here.

What Yahoo did only makes sense once you accept that these cases aren't being decided on the merits, and probably can't be.

Yahoo waited until Bedrock's case was presented against Google, then they presented their case in a way that forbade that approach. Bedrock can't change their position because even if both the old position and the new are equally "true" the inconsistency is enough to defeat the case.

Imagine you're defending a case in which it is claimed you used a prime number and the plaintiff owns prime numbers. In fact the number you used was 8193. Early on, expert #1 for the plaintiff happens to say "Primes are never even" and you let that go since although it's false, it doesn't help you. To your annoyance, you lose because apparently neither the judge nor jury can divide by 2731 and you are cut off by a procedural guillotine before you can suggest trying 3 instead.

Now the plaintiff moves on to their second case. In this case the defendant used the value 2, it's clearly prime, and they must surely settle, right? Nope. They open by saying "Two is an even number" and within hours they're victorious. Because expert #1 already told the court that primes aren't even. Challenging your own expert puts the judgement in your favour from the previous case at risk. The second defendant won because of the case you lost, even though their position was weaker.

Courts can't deliver justice when they don't understand the case, and one of the things software patents do is present huge numbers of cases that can't be understood properly except by software engineers, neither judge nor jury are software engineers and there is no time in the court's calendar to give them even introductory training. The equivalent problem also causes complex fraud cases to collapse, which is more serious since that's criminal court.