A 2-1 CAFC majority finds the absence of an "unconditional" covenent not to sue and thus, because no mootness, subject matter jurisdiction

The decision of Judge Robinson of D. Del. in Arcelormittal vs. AK Steel was affirmed in a 2-1 vote:


Plaintiffs sued Defendants in 2010 for infringing U.S.
Patent No. 6,296,805.

After our most recent remand in
this case, the district court invalidated
claims 24 and 25 of U.S. Patent No. RE44,153, the reissue
of the ’805 patent. We conclude that
the district court possessed subject matter jurisdiction
when it granted summary judgment, that the court properly followed
our most recent mandate, and that the court
properly exercised its discretion to deny ArcelorMittal’s Rule 56(d) request.

Accordingly, we affirm.



Of note in the majority opinion:


In this fact-specific context,
we must give effect to ArcelorMittal’s express
intent to make conditional delivery of an unconditional covenant
mean something different than unconditional delivery of
an unconditional covenant.



Judge Wallach, in a lengthy dissent, argued that the case had become moot after
the signing of the covenant not to sue.

Did the covenant not to sue take effect when signed, or when delivered to the
federal district court?