been held to be objectionable since it makes the claims vague and indefinite and fails to point out and distinctly claim the invention as required by 35 U.S.C. Section 112. See Simmons Co. v. A. Brandwein & Co. et al., 111 USPQ 171. This principle is considered applicable in the case of claims of the Markush type, Ex parte Wulff, 53 USPQ 560. [2] It is well settled that in the initial consideration of patentability the terms of claims must be given the broadcest interpretation which, within reason, may be applied. In re Kebrich, 1953 C.D. 94; 671 O.G. 597; 201 F.2d 951; 96 USPQ 411. For a determination of the scope of the terms "acrylonitrile polymers" and "vinyl chloride polymers," we have referred to the publication in the "Journal of Polymer Science," vol. 8, No. 3, by the International Union of Pure and Applied Chemistry entitled "Report on Nomenclature in the Field of Macromolecules." On page 258, the article with reference to high polymers states "In agreement with present usage, a high polymer need not consist of molecules which are all of the same size, nor is it necessary that they have exactly the same composition or chemical structure as each other or as the corresponding monomer." On page 259, the article defines the terms "homo-polymer" and "copolymer" in each case stating that these are (high) polymers. It is clear from the definitions. that homopolymers and copolymers are subgeneric to and fall within the broad term "polymers." Furthermore, appellant in the reply brief (page 4) has asserted that these terms as used by him in the claims are intended to include "all materials which are copolymerizable with acrylonitrile and vinyl chloride." ... [3] It is our conclusion therefore that the terms "acrylonitrile polymers" and "vinyl chloride polymers," as recited, include the copolymers of acrylonitrile and vinyl chloride and this inclusion renders the claims indefinite, for the reasons as above stated. The rejection of claims 42, 46 and 50 will therefore be sustained. Claims 42, 43, 46 and 50 have been rejected as being too broad in the terms "acrylonitrile polymers" and "vinyl chloride polymers." The Examiner states that only one copolymer of each material has been disclosed, and furthermore, that the limited disclosure in the application to three suitable polymers is insufficient to support such broad terms. In taking this position the Examiner relies upon the decisions such as represented in In re Oppenauer, 31 CCPA 1248; 143 F.2d 974; 568 O.G. 393; 62 USPQ 297, and others involving chemical reactions in which it was held that in view of the unpredictability involved the specifications did not support the broad terms defined in the claims. Appellant in the brief points out that no chemical reaction is involved between the cellulose compound and the hydrophobic polymers which are dissolved and in the components found in the final mixture, the cellulose merely serving to modify physical properties of the resulting blended material. Appellant further contends that there has not been cited or suggested that any hydrophobic polymers would be inoperative in the practice of the present invention and that under such circumstances the broad terms should be allowed. [4] We have carefully considered these contentions and are inclined to the view that the position of the appellant is soundly based. It is clear from the disclosure that the principle of the process involved is of a physical rather than a chemical nature and that the specific nature of the polymers employed in the blend is not the significant aspect of the invention. The principle of action here being clear, no reason is seen for restricting the claims to the specific polymers disclosed in the application. There is no basis found for assuming that polymers coming within the scope recited would be inoperative nor have examples of such inoperative compositions been cited by the Examiner. It is accordingly our view that appellant is entitled to the broad scope of the claims as defined and the rejection of claims 42, 43, and 50 as being too broad will not be sustained. The decision of the Examiner is affirmed as to claims 42, 46 and 50, but is reversed as to claim 43. Modified. EX PARTE IRVIN L. PEARCE Appeal No. 26-96, Patent No. 2,918,705 of December 29, 1959. Decided July 30, 1959 761 O.G. 902 1. APPEAL TO THE BOARD OF APPEALS-JURISDICTION OF THE BOARD-REVIEW OF A REQUIREMENT FOR RESTRICTION-RULE 144. With respect to appellant's request for a ruling by the Board of Appeals on a requirement for restriction, which had been held to be proper by the Commissioner in a decision rendered in answer to a petition after a traverse, Held "We have no jurisdiction in this connection”; “As distinctly denoted by Rule 144, review under present practice as to the propriety of a requirement for restriction is properly by way of petition to the Commissioner, rather than by this Board"; "Appellant has already had such review, and a decision thereon 2. SAME-SAME-PREMATURENESS OF A FINAL REJECTION-REFUSAL OF EXAMINER TO ENTER CLAIMS. "We *** note appellant's comments relating to alleged prematureness of the final rejection herein, and the Examiner's refusal to enter proposed claims 21 to 26, which correspond to claims in appellant's copending application * *. Since as well established by rule (Rules 127 and 181) and long recognized in the practice, these are matters which could have been considered by way of petition to the Commissioner seasonably filed after the respective actions involved and would not be properly before us on appeal, no further consideration thereto will be given herein." 3. SAME-RECORD-TIME FOR FILING EXAMINER'S ANSWER-RULE 193. “***, we note appellant's request contained in and as a part of the reply brief that the Examiner's answer to the brief be stricken from the record, on the grounnd that it was beyond the time period suggested therefor in Section 1208, Manual of Patent Examining Procedure. While Rule 192, pertaining to the time for filing by appellant of the brief, uses the mandatory language "shall," and unequivocally prescribes a penalty for failure to file the brief in time, Rule 193 pertaining to the Examiner's answer, and the portion of said Section 1208 of the Manual referred to by appellant, in setting forth the duty of the Examiner, use the merely permissive language “may” and "should," respectively. This would clearly denote the time period mentioned in said Manual section as but suggestive in nature as a desideratum for administrative purposes within the press of work before the Examiner, rather than any unequivocal fixed cut-off period. Accordingly, there appears to be no proper reason why the Examiner's answer to the brief should not be before us for our consideration in connection with the instant adjudication, and appellant's request to strike is denied." 4. CLAIMS-CONSTRUCTION OF CLAIMS-ELEMENTS RELIED UPON FOR PATENTABILITY SHOULD BE POSITIVELY RECITED IN CLAIMS. "* * * considering claim 3, and the particular terminology used therein, a question which arises to mind concerns the extent of the actual coverage of said claim in respect to the various items mentioned therein. After an introductory clause which merely sets forth the general environment involved, and an 'adapted' clause describing the intended use and purpose of a positively recited fastener element, the claim characterizes a property of the material of said fastener in terms of a non-positively recited component of the environment noted (the lathe knife). Appellant, in referring to 'the new article of manufacture' * * * seems to be asserting that the claim is directed merely to the fastener per se, but his argument for patentability as to said claim appears to be based upon the association or combination of said fastener with the log in the particular veneer peeling environment here involved. If the claim is intended to cover only the fastener, the definition of the same in a positive sense should be only in terms of said fastener itself and not be dependent upon factors extraneous thereto which are not positively recited, while if intended to cover those other associated components in the involved environment upon which appellant's arguments seem to be based, then the claim should positively recite such other components in order to lend patentable significance to said arguments." 5. SAME-SAME INTRODUCTORY CLAUSE AND "ADAPTED" CLAUSE WITHOUT ANY ESSENTIAL PATENTABLE SIGNIFICANCE. "While ** claim 3 may be viewed as somewhat indefinite in character as to exactly what is intended to be covered thereby, it is nevertheless on this basis interpretable as drawn to a fastener per se, and it is in this light that we construe said claim, regarding in this connection the introductory clause and the 'adapted' clause aforementioned to be without any essential patentable significance." 6. PATENTABILITY-MATERIAL DEFINED IN TERMS OF ENVIRONMENT FACTORS OF NO PATENTABLE IMPORT. "With respect to the material of the fastener, which is defined in claim 3 as 'shearable by the knife of the lathe without damage thereto,' we attach no patentable import to such definition in the light of its character * * * merely in terms of environmental factors which are not themselves the sub ject of positive recitation in the claim, it being apparent in this connection that there exists language to define the desired hardness of the fastener material in positive terms, such as by reference to a value or range of values on the Brinell or other suitable hardness scales for example." 7. SAME-DOUBLE PATENTING-PRACTICE-PLURAL APPLICATIONS CLAIMING DIFFERENT SPECIES WITH REJECTED GENERIC CLAIMS IN MORE THAN ONE "*** each of claims 11 through 15 of the copending application are clearly readable upon the fastener disclosed in the present case, and are thus generic to the two species of fasteners respectively disclosed by appellant in the two applications. Likewise, claims 3, 4, 5, 18 and 19 of the instant application are similarly readable upon and thus generic to said two disclosed species of fasteners. It is fundamental that generic claims may not be maintained in each of two cases of the same applicant, in that this would lead to double patenting. ***. In this sense, it would seem that maintenance herein of the claims of this case indicated would manifestly be improper, and that such claims should reasonably be subject to the instant rejection, and we see no reasonable deterrent to this view merely in the fact that the claims of the copending application upon which the rejection is based may not have allowable status in that application, since the lack of a clear line of demarcation between the applications involved and the possibilities of double patenting which could result therefrom are not avoided by this factor." 8. SAME-PARTICULAR SUBJECT MATTER “METHOD OF AND MEANS FOR PREPARING AND PEELING VENEER LOGS." The rejection of certain claims in an application entitled "Method of and Means for Preparing and Peeling Veneer Logs" as unpatentable over the prior art and for doublepatenting, affirmed; and the rejection of a certain other claim as "unpatentable over applicant's own discussion of the prior art," reversed. APPEAL from the Examiner. Serial No. 436,537. Modified. Max C. Richardson for Pearce. Before FRIEDMAN, BAILEY and JOSEPH MANIAN, Examiners-in-Chief. FRIEDMAN, Examiner-in-Chief: This is an appeal from the final rejection of claims 3 to 8, inclusive, 18, 19 and 20. Claims 3, 8 and 20 are illustrative and read as follows: 3. For use in the process of preparing a veneer log having a defect therein and peeling the log in a veneer lathe, a fastener adapted to be driven into said log across said defect to restore the structural strength of said log, said fastener being formed of material shearable by the knife of the lathe without damage thereto and said fastener comprising a rectangular body of small thickness compared to its width or length, and sharp at one longitudinal edge. 8. A bundle of fasteners for use with a magazine type driver for said fasteners, each of said fasteners being formed of a material adapted to be sheared by the knife of a veneer lathe without damage thereto, each of said fasteners comprising an essentially flat rectangular plate having one sharpened longitudinal edge, the opposed faces of said plate being formed with ridges perpen dicular to said edge and each of said fasteners being formed with a hole therethrough normal to said opposed faces, said bundle including a plurality of said fasteners each in registered face to face relation and a malleable wire passing through the holes formed in each fastener of the bundle, one end of said wire being formed with terminal means too large to pass said holes and the other end of said wire being bent over against the outer face of an end fastener of the bundle whereby when the bundle is supported on said terminal means and dropped in the magazine of the driver the fasteners may be held in the magazine and the wire withdrawn by pulling on the said terminal means. 20. In a veneer log having a defect therein requiring structural reinforcement before said log can be successfully peeled in a veneer lathe at least one fastener driven into said log across said defect, said fastener being formed of material shearable by the knife of said lathe without damage to said knife. References relied upon by the Examiner are: Williams, 1,201,008, October 10, 1916. MacChesney, 2,062,098, November 24, 1936. Drypolcher, 2,357,637, September 5, 1944. [1] We note that there are also present in this application claims 1, 2, and 9 to 17, inclusive, which have been indicated to be withdrawn from further consideration under Rule 142(b), as a result of a requirement for restriction. This requirement having been traversed by appellant, a petition to the Commissioner was taken in connection therewith. Said petition was denied by a decision dated July 3, 1956, Paper No. 14 herein, holding the requirement for restriction to be proper. Appellant in his main brief now seems to be requesting that we rule further on this matter here on appeal. We have no jurisdiction in this connection. As distinctly denoted by Rule 144, review under present practice as to the propriety of a requirement for restriction is properly by way of petition to the Commissioner, rather than by this Board. Appellant has already had such review, and a decision thereon as noted above. Accordingly, claims 1, 2, and 9 to 17 are not before us on appeal. [2] We also note appellant's comments relating to alleged prematureness of the final rejection herein, and the Examiner's refusal to enter proposed claims 21 to 26, which correspond to claims in appellant's copending application Serial No. 349,731. Since as well established by rule (Rules 127 and 181) and long recognized in the practice, these are matters which could have been considered by way of petition to the Commissioner seasonably filed after the respective actions involved and would not be properly before us on appeal, no further consideration thereto will be given herein. [3] Additionally, we note appellant's request contained in and as a part of the reply brief that the Examiner's answer to the brief be stricken from the record, on the ground that it was made beyond |