Frankly I don't believe he did take this into account, there was too much of an effort to preserve the patent's scope at the sacrifice of working within the judges prescribed construction, the thinking is very "long term", yet we need to focus on what is before us
I think that once the judge decided the lawyers did not try to make it work within his framework, he looked at it all with disdain, in fairness to calypso its darned if you do and darned if you don't regarding the claim construction--they chose to "do" and argue within their desired framework.
seems kind of petty of the court if you ask me, on the other hand maybe this is just a game of chicken to get drago to forfeit his position if its true that on appeal he could be on the hook for tmobie's legal fees?
this is scarier if that is not an issue, on the other hand if it is and drago hangs tough that's saying something as well.
one thing is for sure, as has already been said, this was going to appeal anyway...
