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[Cocolroo]

 I was working on and considering patenting and idea and just recently saw something similar being sold in Canada,without a patent or appllication of any kind filed,but  a trademark on the name.
He has been selling this product for 3 yrs now in canada at trade shows and things like that but I dont think in the US(possibly
a few through internet sales.)
Does that count for prior art in the U.S

[bartmans]

Simple answer: yes

[Cocolroo]

I would have rather got a complicated "no".
Thanks

[mk1023]

How about a more complicated yes.

35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.
A person shall be entitled to a patent unless -

(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States, or
(f) he did not himself invent the subject matter sought to be patented,

37 CFR 1.56
"Each individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability as defined in this section."

Assuming you're idea really is just the same, realistically the only way you're getting a patent is if you take the guy's idea and add a nonobvious improvement. Even then you're only getting a patent on the improvement not the basic invention.

[DogDayPM 9er9er9er]

How about a more complex, "not sure".

MK1023, what if the OP honestly says he invented the widget (was conceived and at least constructively reduced to practice), then as described he learns the same widget had been previously invented by the Canuck?  And he discloses these facts properly under his 1.56 obligation. 

Does that negate his own independent inventorship?  Note the mere use in Canada (if not described in patent/app/other printed pub) is not a 102 incident... ...as long as the thing actually was not in the US (which the OP is unsure of).

[mk1023]

How about a more complex, "not sure".

MK1023, what if the OP honestly says he invented the widget (was conceived and at least constructively reduced to practice), then as described he learns the same widget had been previously invented by the Canuck?  And he discloses these facts properly under his 1.56 obligation. 

Does that negate his own independent inventorship?  Note the mere use in Canada (if not described in patent/app/other printed pub) is not a 102 incident... ...as long as the thing actually was not in the US (which the OP is unsure of).

Technically you're right. I was thinking that there would be some kind of documentation though especially if the widget is being presented at trade shows and sold over the internet.

[Cocolroo]

So does this really boil down to if it was sold in the US.
I know his website is a .ca website for canada.
but that doesnt mean it couldnt have been sold here through the internet,but I seroiusly doubt it
seeing how his website doesnt even take credit cards,simply a mom and pop operation locally.
Would my best approach be to make an improvement on it(the best I can describe for lack of a better  scenario would be we both have a computer screen cleaning cloth that is equiped with a sewn in
square that allows it to stick to the side of the computer  but my improvement would be strategically placing the square in the cloth ,thus also changing the design a little,which would eliminate the problem of his design that when wiping the screen this sticky square is smudging and dragging on the screen.Slight variation on the design and a good improvement on the function,although they both serve the same function)   and then file a patent but mention the comparison to his.
 Or make the improvement and file without the comparison taking in consideration that their is 1: no patent filed on this 2:a canadian "widget" which is not marketed in the US.3.A distintinct improvement on the function and a slight on the design.
Not looking for unethical advice just advice based on the circumstances.
As I said in my first post I can honestly say didnt come up with with this idea because I saw
his but rather a problem I face at work all the time and wanted to solve it.

[JimIvey]

So does this really boil down to if it was sold in the US.

More accurately, offered for sale in the US.  If the web site was .com or .co.us, you'd probably be out of luck.  I'm not aware of any authority that gives comfort to .ca (or any non-US) web sites.

Even a single sale in the US through the web site suggests that US customers were welcome.  You'll probably need some additional, helpful facts to counter that.

Regards.

[mk1023]

So does this really boil down to if it was sold in the US.
I know his website is a .ca website for canada.

For prior art purposes the website would be considered a printed publication. If the widget at issue is simple, a website with a picture will probably be enabling.

[George White]

Regarding the question of the previous CA invention "negating" his independent inventorship: in the declaration he will be stating that he beileves he is the "original and first" inventor. That might be hard to sign his name to in this case.

---George