Should Canadian doctors, using the best science, be able to screen people for potentially fatal genetic diseases without fear of being hauled into court by American interests for violating commercial patents? Yes they should. And a case has just been launched in Federal Court to ensure that they can.

The Children’s Hospital of Eastern Ontario (CHEO) is challenging the validity of five patents held here in Canada for genes associated with Long QT syndrome. As the Star’s Kate Allen reports, it’s a rare inherited heart disorder that causes chaotic heart beats and can be fatal. It is treatable. But the University of Utah Research Foundation, Genzyme Genetics and Yale University hold exclusive rights to the genetic sequences and tests involved in diagnosing the disorder.

CHEO is making a principled case that no one should be able to patent human DNA, the deoxyribonucleic acid that has been called the “blueprint of life,” and its gene segment. The hospital, a leader in genetic research and care, says it could do the screening for less than half the current $4,500 (U.S.) cost, were it not for the patents.

Moreover, it is developing a new test capable of diagnosing 5,000 genetic conditions, but worries that patents on some of that DNA might bar health care providers from sharing the results with patients, leaving potentially fatal conditions untreated. The problem could worsen as more companies patent more genes.

The very idea of patenting genes is offensive. While they can be discovered, chunks of human genetic material aren’t new scientific or commercial inventions; they are raw products of nature. No one can credibly claim to “own” such material. Nor should it be patented.

While this case promises to break legal ground in Canada, the courts have long recognized that laws of nature, natural phenomena and abstract ideas lie outside patent protection. Canada is one of the few advanced countries that still allow gene patenting.

Indeed, in a precedent-setting case the U.S. Supreme Court declared just last year that human genes cannot be patented. It ruled — unanimously — that Myriad Genetics Inc. could not patent naturally occurring BRCA1 and BRCA2 genes, linked to a risk of breast and ovarian cancers in women. Physicians, researchers and others had argued, convincingly, that the genes Myriad isolated and extracted weren’t materially different from native DNA, and that letting the firm patent genes would amount to awarding a patent on nature, giving it a monopoly that could hamper medical innovation, research and testing by others.

Yet despite the decisive U.S. ruling, Canadian policy and law remain sadly “behind the times,” as Richard Gold, a McGill University law professor, puts it. Prime Minister Stephen Harper’s government hasn’t seen fit to amend the Patent Act to prevent genes from being patented. And there has been no similar court challenge in this country, until now.

By now Parliament should have been seized of the need to clarify that the Patent Act should not be used to patent genes.

“No one should have a monopoly on something that occurs naturally,” says Alex Munter, CHEO’s chief executive officer. “Patenting a gene is like patenting the water we drink and the air we breathe. Genetics is the future of medicine, and we need clarity on this issue.”

We do indeed. And if the Harper government is not prepared to provide it, the courts will have to lead the way. Given the persuasive U.S. precedent, they don’t have far to look.