Whether “[t]he panel erred by reviewing (and remanding) the threshold §42.301(b) institution obviousness determination, rather than reviewing the Board’s merits §103 obviousness determination,” given “Congress’s statutory directive in the AIA, 35 U.S.C. §324(e), that, when a preliminary institution determination involves a question that is subsumed by the ultimate merits, the appellate court should review the merits question, not the threshold one.”
