CTFR 17/997,671 CTFR 99480 DETAILED ACTION Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. Status of the Claims This Office Action is in response to Applicant’s remarks filed 05/01/2026. Claims 1-2, 4-7 and 9-26 are pending and are subject to this Office Action. Claims 1, 4 and 25-26 are amended. Claims 3 and 8 are previously cancelled. Claims 4-5 and 17-24 are previously withdrawn. Response to Amendment The Examiner withdraws the objection to claim 1 for informalities due to amendments to the claims filed 05/01/2026. The Examiner withdraws the 112(d) rejection to claim 25 for being of improper dependent form due to amendments to the claims filed 05/01/2026. Response to Arguments Applicant's arguments, see pages 8-12, filed 05/01/2026, with respect to the 103 rejection of claim 1 have been fully considered but they are not persuasive. On pages 8-10 the Applicant argues that prior art Suzuki does not teach an acid having a pH of at least 2 and less than 7. Specifically, the Applicant states that Suzuki does not teach an acid comprising from 0.001 to 5% acid by weight, and thus one having ordinary skill in the art would be unable to determine the pH of the liquid. The Applicant argues that without knowing the acid concentration, one having ordinary skill cannot arrive at the pH or the difference in pH between the acid and the solid. The Applicant further argues improper hindsight reasoning regarding the use of Cipolla to provide motivation to modify the pH. Specifically, the Applicant references [0037] of Cipolla, which teaches formulating a drug formulation (analogous to the flavor source 120 of cipolla) to be acidic or basic to increase drug dissolution, rather than an acid source (acid source 112 of Cipolla), as it contains no drug. The Examiner disagrees. Regarding the use of Suzuki, the Examiner notes that one having ordinary skill in the art would recognize that adjusting the pH is accomplished by adjusting the concentration of the acidic solution. As such, adjusting the concentration of the acid would similarly be considered a result effective variable. One having ordinary skill in the art would be motivated to adjust the concentration through routine optimization in order to determine a workable and safe concentration range of the acid. Furthermore, differences in concentration (and thereby pH) will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. To overcome the rejection, the Applicant would have to prove that the claimed range exhibits unexpected results over the prior art. See MPEP 2144.05 (II). Regarding the use of Cipolla, the Examiner notes that while Cipolla may teach pH adjustment to increase drug dissolution in [0037], this is not relied upon by the rejection and does not preclude its application to and modification of prior art reference Suzuki. Cipolla is merely cited to demonstrate that it is known to adjust the pH of an acidic solution in an inhalable consumable, as acidic solutions may be damaging. Specifically, Cipolla states that "making the formulation highly basic (e.g. pH 10 or higher) or highly acidic (e.g. pH 2 or lower) could damage lung tissue, especially if large volumes of solution were inhaled, or if the solution had a high buffering capacity" ([0034]). In this statement, Cipolla provides motivation to optimize the pH of the acid and the base based on potential negative effects to lungs. Although Cipolla does not explicitly state that this variable is the difference in pH, it would be expected that by separately optimizing the acid pH and the base pH, this would comprise adjusting the pH difference (e.g., acid pH 4.5-6.5 and base pH 7.5-9.5 would yield a difference of 3-5, which overlaps the claimed range). This modification would be obvious to one having ordinary skill and does not require improper hindsight reasoning. The Examiner notes that although paragraph [0037] of Cipolla is not relied upon in the rejection, its teachings would only strengthen this argument. Although the acid source does not contain a drug component, the pH the acid would be adjusted to account for the neutralization of the base (which may be adjusted to account for drug dissolution). On pages 10-11 the Applicant further argues that Rose does not disclose a pH of the acid, and instead only teaches increasing pH of a tobacco material such as to benefit reaction with an acid, and thus does not teach that a difference in pH values is a result effective variable. The Examiner disagrees. Increasing a pH of the tobacco material, as taught by Rose, would increase a difference between a constant acid pH and the tobacco material pH. This increase in difference would thus be associated with beneficial reaction characteristics and may be considered to be a result effective variable. On pages 11-12 the Applicant argues that dependent claims 11-12 and 15 are patentable over the prior art for the same reasons as argued for independent claim 1. The Examiner disagrees and notes that the rejection of claim 1 is maintained for the above reasons. Thus, the rejection of claim 1 is maintained. Applicant's arguments, see pages 12-13, filed 05/01/2026, with respect to the 103 rejection of claim 26 have been fully considered but they are not persuasive. On pages 12-13 the Applicant argues that Suzuki does not appropriately teach that "the liquid comprises one or more aerosol generating agents". Specifically, the Applicant notes that the acid and the reservoir are separated in Suzuki. The Examiner disagrees. As recited, the claim merely requires that “the liquid comprising an acid further comprises one or more aerosol generating agents”. Suzuki teaches that the acid component may comprise one or more acids ([0068]). These additional acids are used in the production of the aerosol ([0069]), and are thus considered to be aerosol generating agents. The Examiner notes that the rejection of claim 26 does not rely on an aerosol generating agent stored in the reservoir of Suzuki, as stated in the arguments. Thus, the rejection of claim 26 is maintained. The following is a modified rejection based on amendments to the claims. 07-30-03-h AIA Claim Interpretation Regarding claim 1, the limitation "a solid nicotine-containing material having a pH of at least 7" requires interpretation, as it is generally not possible for a solid to have a pH value. In accordance with page 10, lines 3-5 of the specification, it is interpreted that the pH is measured as per CORESTA recommended method No. 69 for measuring the pH of tobacco. Claim Rejections - 35 USC § 103 07-06 AIA 15-10-15 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. 07-20-aia AIA The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. 07-23-aia AIA The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. 07-20-02-aia AIA This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention. 07-21-aia AIA Claim s 1-2, 6-7, 9-10, 13-14, 16 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Suzuki (US 20180049477 A1) in view of Cipolla et al. (US 20100209538 A1), or in the alternative over Suzuki in view of Rose et al. (US 20120006342 A1) . Regarding claim 1, Suzuki teaches a consumable for use in an assembly for generating an inhalable medium (flavor inhaler 10; [0060]), the consumable comprising a liquid comprising an acid having a pH of at least 2 and less than 7 (acid source 112 may be, for example, hydrofluoric acid, which in most concentrations is considered to have a pH of at least 2 and less than 7; [0068]; Furthermore, an acidic liquid has by definition a pH of less than 7. The claimed range overlaps the range taught by the prior art and is therefore considered prima facie obvious) and a solid nicotine-containing material having a pH of at least 7 (flavor source 210 with pH greater than 7 when added to water; [0078]). Suzuki does not explicitly teach (I) that the liquid comprising an acid comprises from 0.001 to 5 % acid by weight or (II) that the difference between the pH of the solid nicotine-containing material and the pH of the liquid comprising an acid is from 3.0 to 5.5. Regarding (I), Cipolla, directed to a consumable for use in an assembly for generating an inhalable medium comprising a liquid comprising an acid ([0034]), teaches that highly acidic formulations could be damaging, especially if a solution has a high buffering capacity ([0034]). Cipolla teaches that a useful acidic pH range may be limited to pH 4.5 to pH 6.5 ([0034]). Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the pH by adjusting the concentration of the acid in the liquid comprising the acid, because Cipolla teaches that the pH of the liquid comprising an acid is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to prevent harm to the user (including if the acid solution was mistakenly inhaled without reacting with a basic nicotine-containing material), and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II). The Examiner further notes that one having ordinary skill in the art would recognize that adjusting the pH is accomplished by adjusting the concentration of the acidic solution. As such, adjusting the concentration of the acid would similarly be considered a result effective variable. One having ordinary skill in the art would be motivated to adjust the concentration through routine optimization in order to determine a workable and safe concentration range of the acid. Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. To overcome the rejection, the Applicant would have to prove that the claimed range exhibits unexpected results over the prior art. See MPEP 2144.05 (II). Regarding (II), Cipolla, directed to a consumable for use in an assembly for generating an inhalable medium comprising a liquid comprising an acid ([0034]), teaches that highly acidic or highly basic formulations could be damaging, especially if a solution has a high buffering capacity ([0034]). Cipolla teaches that a useful pH range may be limited to pH 4.5 to pH 6.5 for acids and pH 7.5 to pH 9.5 for bases ([0034]). Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the pH of the liquid comprising the acid to the range 4.5-6.5 and the solid nicotine-containing material to 7.5-9.5, because Cipolla teaches that the pH of the liquid comprising an acid and the pH of the solid nicotine-containing material are result effective variables, one with ordinary skill in the art would be motivated to optimize this variable to prevent harm to the user (including if either the acid solution or base was mistakenly inhaled without first reacting), and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller , 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II). The difference between the pH of the solid nicotine-containing material and the pH of the liquid comprising an acid would overlap with the claimed range of from 3.0 to 5.5, and would therefore be prima facie obvious. In the alternative, Suzuki does not explicitly teach (I) that the difference between the pH of the solid nicotine-containing material and the pH of the liquid comprising an acid is from 3.0 to 5.5 or (II) that the liquid comprising an acid comprises from 0.001 to 5 % acid by weight. Rose, directed to a consumable (Fig. 1; [0209]) for use in an assembly for generating an inhalable medium (delivery device; [0099]), the consumable comprising a liquid comprising an acid having a pH of at least 2 and less than 7 (element 190 may comprise, for example, pyruvic acid, which in most concentrations is considered to have a pH of at least 2 and less than 7; [0085], [0209]; Furthermore, an acidic liquid has by definition a pH of less than 7) and a solid nicotine-containing material having a pH of at least 7 (nicotine source 190 with alkalinization compounds 210; [0209]), teaches that the pH difference between the liquid acid and the solid base may be optimized to yield higher nicotine delivery to the user ([0177]). Regarding (I), before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the pH difference between the liquid comprising the acid and the solid nicotine-containing material because Rose teaches that the pH difference of the liquid comprising an acid and the solid nicotine-containing is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to enhance nicotine delivery to the user, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller , 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II). Regarding (II), the Examiner notes that one having ordinary skill in the art would recognize that adjusting the pH difference may be accomplished by adjusting the concentration (and thus the pH) of the acidic solution. One having ordinary skill in the art would be motivated to adjust the concentration through routine optimization in order to determine an optimal pH difference between the acid and base. Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. To overcome the rejection, the Applicant would have to prove that the claimed range exhibits unexpected results over the prior art. See MPEP 2144.05 (II). Regarding claim 2, Suzuki does not explicitly teach that the liquid comprising an acid has a pH of from 4 to 5 or from 4.3 to 4.8. Cipolla, directed to a consumable for use in an assembly for generating an inhalable medium comprising a liquid comprising an acid ([0034]), teaches that highly acidic formulations could be damaging, especially if a solution has a high buffering capacity ([0034]). Cipolla teaches that a useful acidic pH range may be limited to pH 4.5 to pH 6.5 ([0034]). Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the pH of the liquid comprising the acid, because Cipolla teaches that the pH of the liquid comprising an acid is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable to prevent harm to the user (including if the acid solution was mistakenly inhaled without reacting with a basic nicotine-containing material), and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller , 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II). Regarding claim 6, Suzuki teaches that the pH of the solid nicotine-containing material is from 8 to 9.5 or from 8.5 to 9 ([0078] teaches that it is preferable that the solid nicotine-containing material have a pH greater than 8. The claimed range overlaps the range taught by the prior art and is therefore considered prima facie obvious). Regarding claim 7, Suzuki teaches that acid vapor pressure may be varied to above or below 0.1 kPa at 20 C according to the configuration of the assembly ([0069] teaches that it is preferable that the acid have a vapor pressure of 0.1 kPa at 20 C, but may also have a vapor pressure below 0.1 kPa at 20 C depending on the configuration of the assembly (e.g., presence of a heater, order of generating inhalable medium). Suzuki does not explicitly teach that the acid has a vapor pressure at 25 C of from 0.1 Pa to 2.5 kPa. Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to optimize the acid vapor pressure, because Suzuki teaches that acid vapor pressure is a result effective variable, one with ordinary skill in the art would be motivated to optimize this variable because there is a design need to alter the acid vapor pressure depending on configuration of the assembly, and because it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller , 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP § 2144.05 (II). Regarding claim 9, Suzuki teaches that the solid nicotine-containing material comprises a tobacco material ([0078]). Regarding claim 10, Suzuki teaches that the tobacco is tobacco granules ([0076]). Regarding claim 13, Suzuki teaches that the consumable is a cartridge (cartridge 200; Fig. 7; [0135]) and wherein the liquid comprising the acid 112 is in a first chamber of the cartridge (see Fig. 7; [0135]) and the solid nicotine-containing material 210 is in a second chamber of the cartridge (see Fig. 7; [0135]). Regarding claim 14, Suzuki teaches that the consumable is a rod ([0074] teaches that cartridge 200 is cylindrical; Fig. 7) comprising a first section comprising the liquid comprising the acid 112 and a second section comprising the solid nicotine-containing material 210 (see Fig. 7; [0135]). Regarding claim 16, Suzuki teaches that the rod further comprises a filter section (filter 230; [0080], [0132]). Regarding claim 25, the Examiner notes that one having ordinary skill in the art would recognize that adjusting the pH difference may be accomplished by adjusting the concentration (and thus the pH) of the acidic solution. One having ordinary skill in the art would be motivated to adjust the concentration through routine optimization in order to determine an optimal pH difference between the acid and base. Furthermore, differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration is critical. To overcome the rejection, the Applicant would have to prove that the claimed range exhibits unexpected results over the prior art. See MPEP 2144.05 (II). Regarding claim 26, Suzuki teaches that the liquid comprises one or more aerosol generating agents ([0068] teaches that the acid may comprise one or more acids that would form the aerosol) . 07-22-aia AIA Claim s 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Suzuki as applied to claim 1 above, and further in view of Farine (US 20200367569 A1) . Regarding claim 11, Suzuki is silent to a specific carrier of the liquid comprising an acid. Farine, directed to a consumable (cartridge 200; Fig. 2; [0140]) for use in an assembly for generating an inhalable medium aerosol-generating system 10; Fig. 1; [0140]), comprising a liquid comprising an acid ([0054], [0148]) and a solid nicotine-containing material ([0054], [0070]), teaches a carrier material 214 for the acid ([0143], [0149], [0154]). Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify Suzuki by retaining the liquid comprising the acid within a carrier material as taught by Farine because both Suzuki and Farine are directed to consumables comprising liquids comprising an acid, Farine teaches that it is known in the art to use a carrier material to retain a liquid comprising an acid within a consumable device, Suzuki is silent to a specific liquid carrier and one with ordinary skill would be motivated to look to prior art for a known and suitable liquid-comprising-acid carriers, and this involves applying a known teaching to a similar product to yield predictable results. Regarding claim 12, Farine teaches that the carrier material is a wicking material ([0149] teaches that the material 214 is a non-woven sheet of PET/PBT, which is a known wicking material; [0154] additionally teaches that material 214 functions as a wick) . 07-22-aia AIA Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Suzuki as applied to claim 1 above, and further in view of Besso et al. (US 20180010786 A1) . Regarding claim 15, Suzuki does not explicitly teach that the rod comprises a cooling section. Besso, directed to a consumable (container 100; [0108]) for use in an assembly for generating an inhalable medium comprsing a liquid comprising an acid (delivery-enhancing compound in second compartment 104; [0108]) and a nicotine-containing material (nicotine source in first compartment 102; [0108]), teaches that a consumable may further comprise a cooling section (further portion 106, which may be an aerosol-cooling portion; [0021]). Therefore, before the effective filing date of the claimed invention, it would be obvious for one having ordinary skill in the art to modify the rod of Suzuki by adding a cooling section as taught by Besso because both Suzuki and Besso are directed to consumable for use in an assembly for generating an inhalable medium, Besso teaches that it is known in the art to use a cooling section to cool a vapor before delivery to the user, and this involves using a known technique to improve a similar device in the same way . Double Patenting Rejection 1 08-33 AIA The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg , 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman , 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi , 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum , 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel , 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington , 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13. The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA/25, or PTO/AIA/26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer. Claims 1-3, 6-9 and 14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 and 12 of copending Application No. 17/906,172 (reference application). This is a provisional nonstatutory double patenting rejection. Regarding claim 1, although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims are directed to a consumable for use in an assembly for generating an inhalable medium, the consumable comprising a liquid comprising an acid having a pH of at least 2 and less than 7 and a solid nicotine-containing material having a pH of at least 7. The claims differ in that conflicting claim 1 includes additional limitations directed to an aerosol generating assembly. However, conflicting claim 1 still includes all required components of rejected claim 1. Therefore, all elements of rejected claim 1 are present and obvious over the conflicting claim 1. Regarding claim 2, conflicting claim 4 teaches that the liquid comprising an acid has a pH of from 4 to 5 or from 4.3 to 4.8. Therefore, conflicting claim 4 includes all required components of rejected claim 2. Regarding claim 3, conflicting claim 5 teaches that the difference between the pH of the solid nicotine-containing material and the pH of the liquid comprising an acid is from 3.0 to 5.5. Therefore, conflicting claim 5 includes all required components of rejected claim 3. Regarding claim 6, conflicting claim 3 teaches that the pH of the solid nicotine-containing material is from 8 to 9.5 or from 8.5 to 9. Therefore, conflicting claim 3 includes all required components of rejected claim 6. Regarding claim 7, conflicting claim 6 teaches that the acid has a vapor pressure at 25C of from 0.1 Pa to 2.5 kPa. Therefore, conflicting claim 6 includes all required components of rejected claim 7. Regarding claim 8, conflicting claim 7 teaches that the liquid comprising an acid comprises from 0.001 to 5 % acid by weight. Therefore, conflicting claim 7 includes all required components of rejected claim 8. Regarding claim 9, conflicting claim 2 teaches that the solid nicotine-containing material comprises a tobacco material. Therefore, conflicting claim 2 includes all required components of rejected claim 9. Regarding claim 14, although the claims at issue are not identical, they are not patentably distinct from each other because both sets of claims are directed to a consumable for use in an assembly for generating an inhalable medium, the consumable comprising a liquid comprising an acid having a pH of at least 2 and less than 7 and a solid nicotine-containing material having a pH of at least 7 wherein the consumable comprises a first section comprising the liquid comprising the acid and a second section comprising the solid nicotine-containing material. The claims differ in that conflicting claim 12 does not explicitly teach that the consumable is a rod. However, changes in shape are considered prima facie obvious absent persuasive evidence that the particular configuration is significant. See MPEP § 2144.04 (VI)(B). Therefore, all elements of rejected claim 14 are present and obvious over the conflicting claims. Rejection 2 08-30 AIA A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co. , 151 U.S. 186 (1894); In re Vogel , 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert , 245 F.2d 467, 114 USPQ 330 (CCPA 1957). A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101. Claim 13 is provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 12 of copending Application No. 17/906,172. This is a provisional statutory double patenting rejection. Regarding claim 13, both sets of claims are directed to a consumable for use in an assembly for generating an inhalable medium, the consumable comprising a liquid comprising an acid having a pH of at least 2 and less than 7 and a solid nicotine-containing material having a pH of at least 7 wherein the consumable is a cartridge wherein the liquid comprising the acid is in a first chamber of the cartridge and the solid nicotine-containing material is in a second chamber of the cartridge. Conclusion 07-40 AIA Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL . See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Charlotte Davison whose telephone number is (703)756-5484. The examiner can normally be reached M-F 8:00AM-5:00PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /C.D./ Examiner, Art Unit 1755 /PHILIP Y LOUIE/ Supervisory Patent Examiner, Art Unit 1755 Application/Control Number: 17/997,671 Page 2 Art Unit: 1755 Application/Control Number: 17/997,671 Page 3 Art Unit: 1755 Application/Control Number: 17/997,671 Page 4 Art Unit: 1755 Application/Control Number: 17/997,671 Page 5 Art Unit: 1755 Application/Control Number: 17/997,671 Page 6 Art Unit: 1755 Application/Control Number: 17/997,671 Page 7 Art Unit: 1755 Application/Control Number: 17/997,671 Page 8 Art Unit: 1755 Application/Control Number: 17/997,671 Page 9 Art Unit: 1755 Application/Control Number: 17/997,671 Page 10 Art Unit: 1755 Application/Control Number: 17/997,671 Page 11 Art Unit: 1755 Application/Control Number: 17/997,671 Page 12 Art Unit: 1755 Application/Control Number: 17/997,671 Page 13 Art Unit: 1755 Application/Control Number: 17/997,671 Page 14 Art Unit: 1755 Application/Control Number: 17/997,671 Page 15 Art Unit: 1755 Application/Control Number: 17/997,671 Page 16 Art Unit: 1755 Application/Control Number: 17/997,671 Page 17 Art Unit: 1755 Application/Control Number: 17/997,671 Page 18 Art Unit: 1755
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