Antitrust Liability For Protecting Patent Rights: Where’s The "Clear And Convincing" Evidentiary Standard At The Summary Judgment Stage?

The Federal Circuit recently permitted Mutual Pharmaceutical to proceed with counterclaims that Tyco's patent enforcement litigation and FDA citizen's petition violated the antitrust laws.  Yet neither the majority nor the dissent discussed whether Mutual had presented evidence at the summary judgment stage that could satisfy the "clear and convincing" standard for Mutual's antitrust counterclaims.  Tyco briefed the issue, but did the Federal Circuit ignore the standard or apply it without comment?

After Mutual Pharmaceutical filed an ANDA seeking to market a generic version of Tyco's Restoril product, Tyco filed a patent infringement suit.  Shortly after Tyco lost that suit, it filed a citizen's petition with the FDA arguing that Mutual's generic should be subject to further bioequivalency testing in light of the differences the court found between Mutual's product and Restoril.