I just had a discussion with a prominent pattent attorney who works for a very large firm in San Diego. His opinion was that both parties could have asked and the judge herself could have appointed a special counsel to the court that would issue a report on the subject. Usually judges take this decision and usually again agree with its findinds. The fact that she didn't do this is not a reason for appeal. Also, the judges do not want to issue decisions of this kind by themselves becuse they take too much of their time. None of these took place here. You can make your assumption s about the state of the mind of our judge; but it is not very flattering