Manufacturer claims should proceed first and should have been severed and transferred to more convenient venue

Federal Circuit grants mandamus, orders severance of a claim against Nintendo from claims against its retailers, and orders transfer of the Nintendo claim and a stay of the retailer claims. Where infringement allegations are brought against a manufacturer and its customer (e.g., retailer), the manufacturer is the "true defendant," and its suit "generally take[s] precedence." Slip op. at 4.

In re Nintendo of America, Inc., ___ F.3d ___ (Fed. Cir. June 25, 2014) (NEWMAN, Rader, Hughes) (E.D. Tex: Gilstrap) (3 of 5 stars) 

Not only did convenience and fairness outweigh the plaintiff’s choice of forum, but the plaintiff’s desire to pursue the highest royalty rate among defendants is similarly outweighed by the fact that the claim against the retailers requires resolution of the claims against Nintendo. "Since Nintendo's liability is predicate to recovery from any of the defendants, the case against Nintendo must proceed first." Id. at 6. Transfer and severance were appropriate because "all of Nintendo's identified witnesses reside in the transferee forum or would find travel to and from that venue significantly more convenient" and "no witness was identified as residing in the Eastern District of Texas." Id. at 5.