Appeal No. 2005-2652
Application No. 10/066,990
the non-halogen phosphorus/nitrogen flame retardants taught in
Parsons for Gehlsen’s automotive and aerospace articles, with a
reasonable expectation of successfully obtaining the advantages
stated in Parsons.
The appellants argue that “it was unexpected that a foam
article made to comprise these combustible materials could be
made to be fire retardant, especially in view of the concentra-
tion of expanded microspheres that may be present with the foam
material of the present invention...” See the Brief, page 15.
However, the appellants’ argument is not supported by any
objective evidence. In re De Blauwe, 736 F.2d 699, 705, 222 USPQ
191, 196 (Fed. Cir. 1984); In re Lindner, 457 F.2d 506, 508, 173
USPQ 356, 358 (CCPA 1972). It is well settled that a showing of
unexpected results must be supported by factual evidence.
Lindner, 457 F.2d at 508, 173 USPQ at 358 (“mere lawyers’
arguments unsupported by factual evidence are insufficient to
establish unexpected results”). Moreover, as indicated supra,
Gehlsen teaches or would have suggested the formation of such
foam articles containing fire retardants, thus providing a
reasonable expectation of successfully forming the claimed foam
articles.
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