3.2.1 Evidence wrongly rejected by the examining division as late-filed

In ex parte case T 545/08 when exercising its discretion, the examining division should have been aware that, although it had cited document D1 (internet publication from a commercial website) at the beginning of the examination proceedings, it had never provided any further explanations or evidence as to the document's public availability before the priority date, so that the objections based on this document had not been properly raised. Moreover, the arguments provided by the examining division for the exercise of its discretion were not persuasive. Under these circumstances, it was not permissible for the examining division to reject the appellant's further evidence as late filed and to continue to rely on document D1 as prior art. It had thereby infringed the appellant's right to be heard (Art. 113(1) EPC in conjunction with Art. 117(1) EPC).