What is the rejection type used if two applications claim the same invention but are filed more than six months apart?

The rejection type that applies when two applications claim the same invention but are filed more than six months apart is a 102(b) rejection. This section of the patent law relates to prior art and specifically addresses the scenario where a prior filed application creates a statutory bar against a later application.

More specifically, 102(b) establishes the principle that a patent cannot be obtained if the claimed invention was patented, described in a printed publication, or in public use or on sale in the United States more than one year before the patent application was filed. In this context, if two applications claim the same invention and one is filed more than six months after the first, the later application is subject to rejection under 102(b) because it is effectively using prior art generated by the earlier application within the one-year grace period.

This means that the later-filed application cannot claim the benefit of the earlier application's filing date for the purposes of patentability, as they relate to the same invention and the applicable time frame has lapsed. Therefore, a rejection under 102(b) is the appropriate response in this situation.