One of the countrys premiere pediatric hospitals is challenging the notion that human genes can be patented by filing a lawsuit that, if successful, could lead to a rewriting of patent law and sharply advance the advent of personalized medicine.

The Childrens Hospital of Eastern Ontario argues in court filings that restricting access to genetic information by researchers and clinicians undermines patient care and is morally and legally untenable.

No one should be able to patent human DNA. Its like trying to patent water or air, said Alex Munter, chief executive officer of CHEO. He noted that Canada is one of the only jurisdictions in the Western world that still allows gene patenting.

This poses a significant obstacle to diagnosing and caring for children with a genetic condition and that cant be tolerated, he said. Conversely, striking down the law, will open the door to an era of personalized medicine, where treatments are tailored to specific genetic characteristics.

Mr. Munter said CHEO is taking on the case because it is a leader in genetic research, particularly in the field of rare diseases, but many institutions will benefit if it is successful.

Lawyers for the hospital who are working pro bono filed papers in the Federal Court of Canada on Monday challenging five patents related to genes associated with a heart condition called long QT syndrome.

It is a test case that the hospital hopes will result in parts of the Patent Act being struck down. There are about 7,000 disease genes that are amenable to patenting under existing legislation in Canada.

This is the first Canadian court case to ask the question: Are human genes patentable? said Nathaniel Lipkus of the law firm Gilberts LLP.

Last year, the U.S. Supreme Court ruled that genes can no longer be patented. Biotech companies want to patent genes so they can profit from testing of those genes. When patents are struck down as in the U.S. a company can still market tests but cannot do so exclusively, so the price drops significantly.

The patents being challenged by CHEO are held by the University of Utah but were filed in Canada.

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Bad patents on human genes hinder health care, hospital says