First, Johnson & Johnson sues the American Red Cross over the red cross trademark. Now, the German drugmaker is suing a hospital in Ontario, Canada, for allegedlly duplicating its Cipro antibiotic and selling a more concentrated, generic version. This may be another no-win situation for a big pharma: suing a hospital trying to serve patients doesn’t look good.

“I think this is going to look, from Bayer’s point of view, pretty petty,” Joel Lexchin, an emergency doctor and health policy professor at Toronto’s York University, tells The National Post. “The hospital is probably doing this for a small number of patients, costing Bayer almost zilch in terms of lost sales. If this drives up hospital costs, Bayer, I don’t think, would look very good.”

Bayer filed the lawsuit last week against the Thunder Bay Regional Health Sciences Centre, demanding the hospital stop producing and selling a diluted version of intravenous ciprofloxacin, give back any profits it made and pay “aggravated, punitive and exemplary” damages, the paper reports.

Bayer declined to discuss the action in detail, but defended it as necessary to protect a product in which it’s invested hundreds of millions of dollars in research and development. It had earlier tried, unsuccessfully, to get an injunction against Sandoz Canada, which makes the much-cheaper generic product used by the hospital.

“We have always vigorously defended our patent rights and will continue to do so,” says Emily Hanst, a Bayer spokeswoman. “We do defend our patent rights to the end.” The health sciences centre refused to comment on the case.

Ciprofloxacin, the drug at the centre of the dispute, counters a variety of different bacteria, including those causing urinary-tract and kidney infections. It became famous a few years ago as the chief treatment for anthrax victims in the US. While the patent on tablet versions of Cipro expired in 2004, Bayer’s IV form, sold to hospitals in pouches ready to be infused in patients, is protected until March, 2008. Bayer sold $24 million worth of Cipro over the past year, according to IMS Health Canada.

Sandoz received Health Canada approval last year to market a concentrated, generic version that must be diluted before use, prompting Bayer to sue the generic firm. In a decision in April, however, the Federal Court denied Bayer’s request for a temporary injunction halting sales of the Sandoz cipro until the case comes to trial.

That didn’t stop Bayer from going after the Thunder Bay hospital. The statement of claim Bayer filed in federal dourt alleges the hospital took the disputed Sandoz version of Cipro and diluted it to the same concentration as the brand-name version. No statement of defense has been filed and the allegations have not been proven in court.

The pharmaceutical industry accounts for the vast majority of patent lawsuits in Canada, which typically cost each side about $1-million in legal fees, says Richard Gold, head of McGill University’s Centre for Intellectual Property Policy. Upholding and extending patents on existing drugs is increasingly important for brand-name companies since so few new breakthrough, high-profit drugs have been brought to market lately, he adds.

In most cases, though, the firm sues a competitor, usually a generic manufacturer like Sandoz, not a public institution. “They tend not to want to (sue hospitals) because, A, they are their customers, and B, it looks bad in the press,” says Gold. “And it’s not like the pharmaceutical industry is a well-loved industry.”

But Bayer may fear that other hospitals will follow the Thunder Bay hospital’s example and wants to set a precedent, he continues.

The few cases where pharmaceutical companies have aggressively defended their patents against public-sector agencies have usually backfired, says Tina Piper, another McGill law professor. She cited the case of Myriad Genetics, a U.S. company that was criticized after threatening court action against Canadian provinces for violating its patent over a gene-based test for breast cancer.

Intravenous versions of antibiotics are typically given to patients when they cannot take a pill orally for some reason, says Michel Laverdière, president of the Association of medical microbiology and infectious disease Canada. He’s not aware of any other hospital diluting a generic version of intravenous cipro.