DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed December, 6, 2025 has been entered. Claims 1-2 and 7-9 are pending. Claims 1-2 and 7-8 have been amended. Claim 3 has been canceled. Claim 9 is new.
Claim Objections
Claims 1 and 7-8 are objected to because of the following informalities: there appears to be discrepancies with the previous claim set filed dated Feb. 27, 2025 and the new claim set filed Dec. 6, 2025. The new claim set does not appear to be a complete markup to indicate the changes of the preceding claim set. As stated in MPEP 714 II C (B): “All claims being currently amended must be presented with markings to indicated the changes that have been made relative to the immediate prior version.”
For example, in claim 1, “A.”, “B.” and “C.” are not marked as new limitations the claim as they are not underlined.
Also in claim 1, the first line on page 2 is crossed out, however, the limitations that were crossed out are not part of the flavor agents as recited in the previous claim set.
Claims 7-8 do not have the proper status identifier as they read as “previously presented” when they have been amended and should say “currently amended”.
However, in light of compact prosecution, the claims are being examined even though they have not been properly marked up for amendments and are therefore non-compliant. The examiner suggested using the same language as presented in the preceding claim set and using the current markings when amending the claim language.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2 and 7-9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “wherein the soaked chia seeds served in a thickening gel texture”. This limitation is indefinite as it is not clear what applicant means by “served”. Does applicant mean the soaked chia seeds “form” a thickening gel texture?
Claim 1 additionally recites “A bubble food product composition….comprising: A. liquids component consists of tea, coffee or mixtures thereof”. This limitation is indefinite as it is not clear how the bubble food product can only have tea and/or coffee as the “liquids” as the bubble food composition “comprises” the liquids, flavor agents, and chia seed base, so therefore the composition is not limited to tea or coffee. Also, the “additional liquids” of the soaked chia seeds base and flavor agents comprise other liquids including not only coffee and/or tea (e.g. dairy product, non-dairy product, yogurts, juices, soda, protein drinks, etc). The flavor agents and the soaked chia seeds base both make up the bubble food product and therefore it is not clear as to what liquids can, or cannot, be present in combination with the chia seeds.
Claims 2 and 7-9 are included as they depend from claim 1.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1 and 7-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abreu (Rasberry Green Tea Lemonade with Chia, Wife Mama Foodie, Feb. 25, 2015, Retrieved from Internet URL: https://www.wifemamafoodie.com/raspberry-green-tea-lemonade-with-chia/).
Regarding claim 1, Abreu discloses a chia seed product, or bubble food product, comprising liquids (e.g. water, juice, tea), flavor agents (e.g. fruit juices, honey, lemon) and soaked chia seed base (See Recipe pages 10-11).
Abreu teaches that the bubble food does not contain tapioca ball or milled tapioca starch.
Abreu teaches that the soaked chia seeds base comprises additional liquids as the chia seeds are soaked in water (See Recipe pages 10-11), wherein the ratio of water to that of said chia seed mass is 5.33:1 (e.g. 1 cup water, or 16 tbsp water, to 3 tbsp chia seed), thus falling within the claimed ratio of additional liquids to the chia seeds mass of 1:1 to 12:1 (See Recipe pages 10-11).
Abreu further teaches that the chia seeds absorb the water to be thick and pudding-like (pages 8). Therefore, Abreu meets the claimed limitations of the chia seeds forming a thickening gel texture.
Abreu discloses that the bubble food product comprises tea as a liquid, and the soaked chia seeds base comprises liquids including water (See Recipe pages 10-11).
With respect to the liquids of bubble food product consisting of tea and/or coffee, as stated above in the 112(b) rejection, it is not clear how the bubble food product can only have tea and/or coffee when it also comprises “additional liquids” other than tea and/or coffee. Furthermore, Abreu teaches that the bubble food product comprises tea and the soaked chia seed base comprises water. Any additionally liquids present in Abreu fall within the scope of the flavor agents and the use of the transitional phrase “comprising”.
Abreu teaches that the flavor agents of the bubble food product comprise fruit juices, sweeteners, and fruit (See Recipe pages 10-11). The flavor agent mixtures in the soaked chia seed base are optional and therefore not required.
Regarding claim 7, Abreu teaches that the product is a chia seed tea drink (See Recipe pages 10-11), and therefore meets the limitation that the product is a beverage.
Regarding claim 8, Abreu fails to teach that the product is a pudding product, however, Abreu comprises the same ingredients in the same ratio as claimed in claim 1. Further, the instant specification at [0027] states that the soaked chia seed pearls result in the formation of a pudding like consistency in the beverage. Therefore, as Abreu teaches the same ingredients in the same ratio as claimed, the product of Abreu is considered to meet the claimed “pudding” product as the soaked chia seeds in Abreu would form a pudding like consistency.
Claim 9 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abreu (Rasberry Green Tea Lemonade with Chia, Wife Mama Foodie, Feb. 25, 2015, Retrieved from Internet URL: https://www.wifemamafoodie.com/raspberry-green-tea-lemonade-with-chia/) as applied to claim 1 above, and further as evidenced by Nutrition Matters (Chia – Anatomy of a Superfood; Feb. 12, 2010, Retrieved from Internet URL: https://blog.nutri-tech.com.au/chia-anatomy-of-a-superfood/).
Regarding claim 9, with respect to the bubble food product comprising additional nutritional value including minerals, vitamins, Omega 3 and digestive enzymes compared to tapioca balls milled from tapioca starch, Abreu teaches that chia seeds are rich in Omega 3 fatty acids (page 6). Further, the examiner notes that the product of Abreu would inherently comprise minerals, vitamins, Omega 3 and digestive enzymes due to the inclusion of soaked chia seeds as evidenced by Nutrition Matters.
Nutrition Matters discusses how chia seeds are a superfood that naturally comprise minerals, vitamins, Omega 3 and digestive enzymes (pages 2-4 and 11). Therefore, as Nutrition Matters teaches that chia seeds naturally comprise nutritional value including minerals, vitamins, Omega 3 and digestive enzymes as claimed, the product of Abreu is considered to meet the claimed nutritional limitations.
With respect to “replacing bubble drink industry tapioca balls with soaked chia seeds, Abreu fails to specifically teach “replacing” tapioca bubble drink with chia seed bubble drink, however, this is merely intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, the product of Abreu comprises the same ingredients as claimed and therefore would be capable of “replacing” tapioca bubble drinks.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis 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.
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.
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Abreu (Rasberry Green Tea Lemonade with Chia, Wife Mama Foodie, Feb. 25, 2015, Retrieved from Internet URL: https://www.wifemamafoodie.com/raspberry-green-tea-lemonade-with-chia/) as applied to claim 1 above, and further in view of Homemade Veg Zone, herein after “Veg” (Almond Rose Chia seed Lassi (yogurt drink), August 16, 2015, Retrieved from Internet URL: homemadevegzone.blogspot.com/2015/08/almond-rose-chia-seed-lassi-yogurt-drink.html?spref=pi).
Regarding claim 2, as stated above, Abreu teaches a bubble food product that can be a drink. Abreu, however, fails to specifically teach the drink further including ice to form a slushy chia seed bubble product.
Veg teaches a chia seed drink that comprises ice that is blended with the additional ingredients. Therefore, the composition of Veg would necessarily form a “slushy” chia seed bubble product.
It would have been obvious to have the drink of Abreu further include ice to form a slush product. Veg teaches that it is well known in the art to form an ice blended chia seed product and therefore it would have been obvious to add ice to the drink of Abreu depending on preference. It is well known in the art to serve ice with beverages and therefore would have been obvious depending on preference and desired temperature of the beverage.
Claims 1 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN 105558734 A1; May 11, 2016).
Regarding claim 1, Chen discloses a chia seed product, or bubble food product, comprising liquids (e.g. water, coffee, tea), flavor agents (e.g. fruit juices, sucrose) and soaked chia seed base (See Examples, page 2 under “contents of the invention”).
Chen teaches that the bubble food does not contain tapioca ball or milled tapioca starch.
Chen teaches that the soaked chia seeds base comprises additional liquids as the chia seeds are soaked in water, wherein the mass ratio of chia seeds to water is 1:9 to 1:30, thus overlapping the c claimed ratio of additional liquids to the chia seeds mass of 1:1 to 12:1 (page 2 under “contents of the invention” para 2). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Chen further teaches that the chia seeds absorb the water to form a gel-like texture (page 2 under “contents of the invention” para 2). Therefore, Chen meets the claimed limitations of the chia seeds being soaked to form a thickening gel texture.
Chen discloses that the bubble food product comprises the liquids coffee or tea, and the soaked chia seeds base comprises liquids including water (See Examples, page 2 under “contents of the invention”).
With respect to the liquids of bubble food product consisting of tea and/or coffee, as stated above in the 112(b) rejection, it is not clear how the bubble food product can only have tea and/or coffee when it also comprises “additional liquids” other than tea and/or coffee. Furthermore, Chen teaches that the bubble food product comprises coffee or tea and the soaked chia seed base comprises water. Any additional liquids present in Chen fall within the scope of the flavor agents and the use of the transitional phrase “comprising”.
Chen teaches that the flavor agents of the bubble food product comprise juices, cola, coffee, tea, sweeteners, and sweet syrup (See Examples, page 2 under “contents of the invention”). The flavor agent mixtures in the soaked chia seed base are optional and therefore not required.
Regarding claim 7, Chen teaches that the product can be a chia seed drink (See Example 3), and therefore meets the limitation that the product is a beverage.
Regarding claim 8, Chen fails to teach that the product is a pudding product, however, Chen comprises the same ingredients in the same ratio as claimed in claim 1. Further, the instant specification at [0027] states that the soaked chia seed pearls result in the formation of a pudding like consistency in the beverage. Therefore, as Chen teaches that same ingredients in the same ratio as claimed, the product of Chen is considered to meet the claimed “pudding” product as the soaked chia seeds in Chen would form a pudding like consistency.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN 105558734 A1; May 11, 2016) as applied to claim 1 above, and further in view of Homemade Veg Zone, herein after “Veg” (Almond Rose Chia seed Lassi (yogurt drink), August 16, 2015, Retrieved from Internet URL: homemadevegzone.blogspot.com/2015/08/almond-rose-chia-seed-lassi-yogurt-drink.html?spref=pi).
Regarding claim 2, as stated above, Chen teaches a bubble food product that can be a drink. Chen, however, fails to specifically teach the drink further including ice to form a slushy chia seed bubble product.
Veg teaches a chia seed drink that comprises ice that is blended with the additional ingredients. Therefore, the composition of Veg would necessarily form a “slushy” chia seed bubble product.
It would have been obvious to have the drink of Chen further include ice to form a slush product. Veg teaches that it is well known in the art to form an ice blended chia seed product and therefore it would have been obvious to add ice to the drink of Chen depending on preference. It is well known in the art to serve ice with beverages and therefore would have been obvious depending on preference and desired temperature of the beverage.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN 105558734 A1; May 11, 2016) as applied to claim 1 above, and further as evidenced by Nutrition Matters (Chia – Anatomy of a Superfood; Feb. 12, 2010, Retrieved from Internet URL: https://blog.nutri-tech.com.au/chia-anatomy-of-a-superfood/).
Regarding claim 9, with respect to the bubble food product comprising nutritional value including minerals, vitamins, Omega 3 and digestive enzymes compared to tapioca balls milled from tapioca starch, Chen teaches that chia seeds comprise Omega 3 and minerals (page 2 para 3). Further, the examiner notes that the product of Chen would inherently comprise minerals, vitamins, Omega 3 and digestive enzymes due to the inclusion of soaked chia seeds as evidenced by Nutrition Matters.
Nutrition Matters discusses how chia seeds are a superfood that naturally comprise minerals, vitamins, Omega 3 and digestive enzymes (pages 2-4 and 11). Therefore, as Nutrition Matters teaches that chia seeds naturally comprise nutritional value including minerals, vitamins, Omega 3 and digestive enzymes as claimed, the product of Chen is considered to meet the claimed nutritional limitations.
With respect to “replacing bubble drink industry tapioca balls with soaked chia seeds, Chen fails to specifically teach “replacing” tapioca bubble drink with chia seed bubble drink, however, this is merely intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, the product of Chen comprises the same ingredients as claimed and therefore would be capable of “replacing” tapioca bubble drinks.
Response to Arguments
Applicant’s arguments with respect to the 103 rejections over Abreu and Chen have been fully considered but were not found persuasive.
On page 5, applicant continues to argue that there are no patents like the instant product and that there are no franchises selling the instant product. Again, this argument remains unpersuasive as the instant product is well known in the art as shown above in the rejections.
On page 5, applicant also continues to argue that a simple recipe on a personal blog could not possibly cover all ingredients and forms of bubble drinks. Applicant states that a blog is not a product that can be bought. Applicant further states that there are no prior patents of the instant invention and therefore the use of a blog is not obvious and not prior art.
This argument remains unpersuasive as a blog/website, which is considered non-patent literature, can be used as prior art as long as it was made publicly available before the effective filing date of the instant invention (See MPEP 2128).
Applicant states that Abreu teaches soaking chia seeds with water, which is not exactly the same as required by claim 1, which states “wherein said additional liquids of the soaked chia seeds are selected from…water…”. This is not found persuasive as the additional liquids can be water and are part of the soaked chia seed base, which comprises additional liquids, chia seeds, and optional flavor agents. The soaked chia seed base of Abreu comprises water and chia seeds, where the water falls under the scope of the additional liquids recited in claim 1.
Applicant further argues on page 5 that Abreu teaches 1 cup of water to 3 tbsp chia seed, which is not the same as claimed mass ratio of liquid to chia seed. This is not found persuasive as Abreu’s teaching of 1 cup of water to 3 tbsp chia seed results in a ratio of water to chia seed of 5.33:1, thus falling within the claimed ratio of additional liquids to the chia seeds mass of 1:1 to 12:1 (See Recipe pages 10-11).
Applicant also continues to argue on page 6 that soaking at least several hours does not cover soaking for 5 minutes. This is not found persuasive the amended claims do not require any amount of soaking time and therefore applicant’s arguments are moot.
Regarding applicant’s argument on page 6 that Abreu fails to teach a bubble food product free of tapioca balls, and further in a slushy ice form or pudding form. The examiner notes that Abreu does not teach the use of tapioca and therefore the product of Abreu is free of tapioca.
With respect to the product being in slushy ice form, the examiner relies upon the combination of Abreu with Veg to render obvious the use of blended ice in the product of Abreu. Veg teaches a chia seed drink that comprises ice that is blended with the additional ingredients. Therefore, the composition of Veg would necessarily form a “slushy” chia seed bubble product. It would have been obvious to have the drink of Abreu further include ice to form a slush product. Veg teaches that it is well known in the art to form an ice blended chia seed product and therefore it would have been obvious to add ice to the drink of Abreu depending on preference. It is well known in the art to serve ice with beverages and therefore would have been obvious depending on preference and desired temperature of the beverage. Applicant has not provided any arguments rebutting the obviousness rejection and therefore this argument is not found persuasive.
With respect to the product being in pudding form, the examiner recognizes that Abreu fails to teach that the product is a pudding product. However, Abreu comprises the same ingredients in the same ratio as claimed in claim 1. Further, the instant specification at [0027] states that the soaked chia seed pearls result in the formation of a pudding like consistency in the beverage. Therefore, as Abreu teaches the same ingredients in the same ratio as claimed, the product of Abreu is considered to meet the claimed “pudding” product as the soaked chia seeds in Abreu would form a pudding like consistency. Applicant has not provided any arguments rebutting this rejection and therefore this argument is not found persuasive.
With respect to applicant’s arguments on page 6 with respect to claim 9, the examiner notes that as Abreu teaches a drink comprising soaked chia seeds, the product of Abreu is considered to be a bubble drink as it comprises the same ingredients as claimed that make the claimed product a bubble drink. As evidence by Nutrition Matters, chia seeds inherently have the claimed nutritional components and therefore the product of the prior art would comprise the claimed nutritional components due to the present of the chic seeds. With respect to “replacing bubble drink industry tapioca balls with soaked chia seeds, the prior art fails to specifically teach “replacing” tapioca bubble drink with chia seed bubble drink, however, this is merely intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, the product of the prior art comprises the same ingredients as claimed and therefore would be capable of “replacing” tapioca bubble drinks.
Applicant’s arguments with respect to Chen are not found persuasive for the same reasons as stated above regarding the rejection over Abreu. Additionally, Chen teaches that the flavor agents of the bubble food product comprise juices, cola, coffee, tea, sweeteners, and sweet syrup (See Examples, page 2 under “contents of the invention”), thus falling within the claimed ingredients. The flavor agent mixtures in the soaked chia seed base are optional and therefore not required.
Applicant’s arguments with respect to Veg on page 8 are not found persuasive as Veg is no longer being relied upon as a primary reference. Veg is being relied upon to show that it is well known in the art to form an ice blended chia seed product and therefore it would have been obvious to add ice to the drink of Abreu or Chen depending on preference. It is well known in the art to serve ice with beverages and therefore would have been obvious depending on preference and desired temperature of the beverage. Applicant has not provided any arguments rebutting the obviousness rejection and therefore this argument is not found persuasive.
Applicant’s arguments on page 9 are not found persuasive for the same reasons as previously stated. The prior art clearly teaches a coffee or tea product comprising chia seeds, liquids and flavor.
For the reasons stated above, 112, 102 and 103 rejections are maintained.
Conclusion
No claims are allowed.
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 STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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, Nikki Dees can be reached on (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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