(dissenting).
Two questions confront us. today: first, whether, because of the doctrines of res judicata and law of the case, the Court is foreclosed from conducting an independent determination of the issue presented by the appellant; and, second, whether the Ohio district court properly assumed subject-matter jurisdiction over the lawsuit that is the foundation of the present interlocutory appeal.
This particular action was initiated by Skil Corporation (Skil) in 1972, but it is part of a complex patent infringement litigation, involving the activities of the intervenor Lucerne Products (Lucerne), that has shuffled between the Northern District of Illinois and the Northern District of Ohio for the last eight years. In July, 1973, on his own motion, Judge Hoffman ordered the case transferred from Illinois to Ohio, so that it could be consolidated with the related patent infringement cases. Skil petitioned the Court of Appeals for the Seventh Circuit for a writ of prohibition and mandamus 1 to prevent the transfer to Ohio on the ground that there was no record to show, as required by 28 U.S.C. § 1404(a) and Hoffman v. Blaski,2 that the action “might have been brought” in Ohio in the first instance. Although there was extensive briefing, the Seventh Circuit denied the petition without an opinion.
Once in Ohio, Skil moved that the cases be remanded to Illinois. Judge Lambros denied that motion, but the question of his denial of remand to Illinois was certified by him and another panel of this Court, pursuant to 28 U.S.C. § 1292(b), and is now before us on an interlocutory appeal.
A.
The arguments addressed to this Court involve what may appear, superficially, to be the same issue that was addressed to the Seventh Circuit. As a result, my colleagues would decide this troublesome case by application of the doctrines of res judicata (or, more specifically, collateral estoppel) and law of the case.
I am unable to agree with such a formulation of the problem. Underlying either doctrine, res judicata or law of the case, is the assumption that the Seventh Circuit has already decided the same issue that is now before us.3 In my view, that fundamental condition is lacking in this situation.
Judge Hoffman’s transfer of these cases to Ohio was before the Seventh Circuit, but the question was posed to the Seventh Circuit on a petition for a writ of mandamus. In contrast, the question is presented to this Court by way of an interlocutory appeal. Consequently, the legal standards which governed the decision in the Seventh Circuit are significantly different from the standards which are to control our determination.
Before this Court the issue is one of error of law: Did the Ohio district court make an error of. law in denying the motion to remand these cases to Illinois, thereby upholding the transfer of venue to Ohio? The issue before the Seventh Circuit was whether there existed “exceptional circumstances amounting to a judicial ‘usurpation of pow*564er’ ” that would justify the invocation of such an “extraordinary remedy” as a writ of mandamus.4 As the Supreme Court has recently reiterated, “The remedy of mandamus, is a drastic one, to be invoked only in extraordinary situations.”5 It is not a substitute for an interlocutory appeal,6 but rather a tool “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.”7
The majority decision is constructed upon the proposition that when the Seventh Circuit denied the petition for a writ of mandamus, it necessarily reached the merits of the transfer-of-venue question and determined that the district to which the action had been transferred was one in which it could have been brought originally. Thus, according to the majority, mandamus would have issued if the transferee district had not been a proper one for venue, and under that view, an incorrect transfer by the Illinois district court would have amounted to a usurpation of judicial power. This reasoning does not, however, withstand close analysis.
It has not been suggested that Judge Hoffman exceeded the bounds of his judicial authority in transferring the law suit. No one disputes that he had an in personam and an in rem base for jurisdiction. Such bases existed regardless of whether the transfer was properly granted. The statutory requirement of section 1404(a) concerns the jurisdiction of the court to which the action is transferred and not, as the majority asserts, the jurisdiction of the court ordering the transfer. Therefore, if Judge Hoffman transferred the case to a district in which there was no venue as to one of the parties, he committed an error of law — but he did not exceed his jurisdiction.8 To hold otherwise would be tantamount to ruling that mandamus is available whenever a party claims that a case was transferred to a district other than one “where it might have been brought.” 9 Such a result would conflict with established principles regarding the writ of mandamus, since the writ should be available only in “extraordinary situations.”10 In addition, it would make many, perhaps most, transfers under *565section 1404(a) subject to mandamus, a result which surely should be avoided.
Necessarily implicit in the majority’s reasoning are two assumptions, and in my view the validity of either one is doubtful. The first assumption is that the Seventh Circuit has adopted a standard of review which requires a consideration of the merits where the appellate court denies a motion for mandamus in a transfer-of-venue case. The second is that the Seventh Circuit in fact employed such a standard in denying Skil’s petition for mandamus.
It is true that the Seventh Circuit has occasionally reached the merits in deciding whether to issue a writ of mandamus in transfer-of-venue situations.11 The more common practice of that court, however, is to rule on the mandamus issue without reaching the merits.12 As a general matter, the Seventh Circuit will grant mandamus in this type of situation only if the district judge abused his discretion with regard to the transfer question.13 The decision in B. Heller & Co. v. Perry14 exemplifies that approach. Petitioners there sought ex-pungement of a district court transfer order issued under the authority of section 1404(a). In dismissing the petitions, the Seventh Circuit held that the district court’s decision to transfer “should not be set aside unless there is apparent an abuse of discretion.” 15
It must also be remembered that the summary denial of mandamus by the Seventh Circuit in this case came at a time when what the rule appeared to be in that circuit was summarized by the following statement from Sypert v. Miner:16
[T]o warrant action by our Court in passing on [a petition for mandamus in a transfer-of-venue context], something more must be shown than an erroneous decision by the district court. We emphasize] that an abuse of discretion must clearly appear. Mandamus is a drastic and extraordinary remedy and petitions therefor hereafter filed in this Court which, in fact, involve only an erroneous decision will, in all likelihood, be summarily denied.
Thus, it would appear that while it is conceivable that the Seventh Circuit may have reached the merits of the transfer question, it is far more likely that it followed the precept it had adumbrated in Sypert v. Miner, supra, determining only that Judge Hoffman did not abuse his discretion by transferring the case to Ohio, and did not reach the question whether the place of transfer was a correct one. But whatever the court may have decided, we are not in a position to know what it did decide by its brief denial.17 In view of the *566Seventh Circuit cases, which suggest that it would be inappropriate for the court to rule on the merits of the transfer, it is improper to assume — as the majority does here — that the merits were reached.
Two decisions based upon the same facts, but made according to different standards of adjudication, cannot without more be regarded as decisions of identical issues.18 Accordingly, our judgment on interlocutory appeal and that of the Seventh Circuit on a petition for mandamus are not adjudications of identical issues. The necessary prerequisite for the application of the doctrines of res judicata and law of the case being wanting, I do not believe that this Court may be bound on the present appeal by the prior decision of the Seventh Circuit when it denied a writ of mandamus.19
B.
If, as I believe, there has not been a prior binding determination of the transferability issue now pressed by the appellant, it is necessary for us to consider the basis in the record for establishing venue in the Northern District of Ohio.
Judge Weick has related the complicated background of this “chaotic” case with admirable clarity. The critical fact is that, since Judge Hoffman transferred these cases sua sponte and not at the request of the defendants, there is no record to demonstrate that Skil could have brought this suit originally in Ohio. Yet, under § 1404(a), as interpreted in Hoffman v. Blaski, such a showing is an essential predicate for transfer. What is important to our current inquiry is the capacity of the plaintiff to have “brought” the suit in the transferee district in the first instance. Absent this necessary element, the denial of Skil’s motion to remand the cause to Illinois would appear unwarranted, unless Hoffman v. Blaski is distinguishable.
The defendants attempt to differentiate Hoffman v. Blaski by drawing an analogy between the instant case and Continental Grain Co. v. Barge FBL-585, where a transfer was permitted although jurisdiction over the barge could not have been obtained in the transferee forum.20 Continental Grain hinged on the fact that although there were suits against different defendants, there was but one real party in interest. The plaintiff had brought suit in rem against the barge and in personam against the owners of the barge; any claim secured against the barge would, of course, redound to the detriment of the barge owners. The case before this Court involves three defendants in addition to Lucerne, but Lu*567cerne has agreed to indemnify the other parties. Consequently, Lucerne is presented by the defendants as the only real party in interest and, in the defendants’ view, the principle underlying Continental Grain applies as well to the present case.
The disregard of the limitations on venue imposed by the in rem proceeding in Continental Grain was, however, founded on the fictitious nature of the in rem law suit. There, in rem jurisdiction depended upon the legal fiction that the barge had an independent personality. Hence, suit could be brought against the barge even where its owner could not be reached. It was possible in Continental Grain to ignore this legal fiction because it did not serve any legitimate purpose for the plaintiff in that case; it had not been necessary to employ the legal fiction in order to bring suit, since in personam jurisdiction over the owners of the barge had been obtained.
Here, the defendants are quite different from Barge FBL-585, since each has a real and independent legal personality. Were it not for a private agreement to indemnify, each defendant could be sued without immediately touching the interest of Lucerne. The claims against each defendant manufacturer are distinct from the claims against Lucerne, although they may arise from the same factual configuration.21 In addition, it is somewhat misleading to- regard Lucerne as the only real party in interest: jurisdiction over each of the defendant manufacturers is necessary if Skil is to obtain an injunction against the alleged patent infringements — the very relief that Skil is seeking. Moreover, should Lucerne prove unable to indemnify the manufacturers, Skil will want a monetary judgment against each of them in order to recover its damages fully.
The opinion of the Supreme Court in Van Dusen v. Barrack22 should caution us against reading Hoffman v. Blaski too restrictively. Nonetheless, the determinative aspect of the Continental Grain case was existence of identical suits, one of which was based on a legal fiction that hindered the transfer of the litigation to a convenient forum, but served no functional purpose. The roles of Miller Falls, Rockwell, and Wen, the defendant manufacturers in this case, are not fictitious, and the presence of these parties is necessary to achieve the legitimate objects of a suit brought by Skil.
Consequently, I believe that the principle of Continental Grain does not apply in the present situation, and that the Court should adhere to the interpretation of section 1404(a) set forth in Hoffman v. Blaski. Under such interpretation, it is necessary for the district court to determine whether this is an action that could have been brought in the Northern District of Ohio.
C.
It is disturbing when a lawsuit degenerates into maneuvering over the appropriate forum; it is particularly troubling here where the litigation has worn on for eight years without coming to a trial on the merits. But a court cannot act beyond its powers, and the authority of the Ohio district court to assume jurisdiction over this action is not apparent on the record before us. I would remand the case to that court for proceedings which would establish the basis of jurisdiction or, if there is no basis, for remand of the suit to Illinois. Further, I would suggest that the trial court expedite the matter and admonish the parties to cooperate fully in such efforts to complete this litigation as promptly as possible.
. Referred to hereafter as writ of mandamus.
. 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).
. With respect to the principles of res judicata and collateral estoppel, see Cromwell v. County of Sac., 94 U.S. 351, 24 L.Ed. 195 (1876); Harrison v. Bloomfield Bldg. Indus., Inc., 435 F.2d 1192, 1195 (6th Cir. 1970); IB J. Moore, Federal Practice ¶ ¶ 0.405[3], 0.443[l-2] (2d ed. 1974). With respect to the principles of law of the case, see Petition of United States Steel Corp., 479 F.2d 489, 493-94 (6th Cir. 1973), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973); IB J. Moore, Federal Practice ¶ 0.404[1] (2d ed. 1974).
. United States v. Will, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), citing DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). See Butterick v. Will, 316 F.2d 111 (7th Cir. 1963).
. Kerr v. United States District Court,-U.S. -,-, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976).
. United States v. Will, 389 U.S. at 97, 88 S.Ct. 269; Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 27-30, 68 S.Ct. 938, 87 L.Ed. 1185 (1943); American Constr. Co. v. Jacksonville, Tampa & Key West Ry. Co., 148 U.S. 372, 379, 13 S.Ct. 758, 37 L.Ed. 486 (1893); Beneke v. Weick, 275 F.2d 38, 39 (6th Cir. 1960); Korer v. Hoffman, 212 F.2d 211, 215 (7th Cir. 1954).
. Roche, 319 U.S. at 26, 63 S.Ct. at 941, quoted in United States v. Will, 389 U.S. at 95, 88 S.Ct. 269.
. This is so because the judge of the court where the suit was originally brought would clearly have power, which is the threshold issue on mandamus, to consider and decide a question of transfer of venue. Whether that power was exercised without error in the interpretation of section 1404(a) is quite another matter. See A. Olinick & Sons v. Dempster Bros., Inc., 365 F.2d 439, 445 (2d Cir. 1966); Chicago, Rock Island & Pac. RR Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955); Magnetic Eng’ring & Mfg. Co. v. Dings Mfg. Co., 178 F.2d 866, 869-70 (2d Cir. 1950).
On the other hand, the judge of the transferee district might be acting outside his power in retaining a case where it is an open question whether the suit originally could have been brought in his court, as required by section 1404(a). Hence, mandamus may issue more readily with respect to the decision of a transferee judge to accept a case than with respect to the decision of the judge in the original jurisdiction to transfer the case. Compare Ackert v. Pelt Bryan, 299 F.2d 65, 68 (2d Cir. 1962) with Blaski v. Hoffman, 260 F.2d 317 (7th Cir. 1958). But see, e. g., Relf v. Gasch, 167 U.S.App.D.C. 230, 511 F.2d 804 (1975); Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970), cert. denied 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971); Behimer v. Sullivan, 261 F.2d 467 (7th Cir. 1958), aff'd sub nom. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).
. 28 U.S.C. § 1404(a).
. Kerr, supra, at -, 96 S.Ct. at 2124.
. The most pertinent instance is, of course, Behimer v. Sullivan, 261 F.2d 467 (7th Cir. 1958), aff’d sub nom. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), where the Seventh Circuit issued a writ of mandamus on the ground that the Illinois district court lacked the power to transfer the case to a Utah district court, since the latter district was not one where the suit might have been brought originally. Another example is Dairy Industries Supply Ass’n v. LaBuy, 207 F.2d 554 (7th Cir. 1953).
. Chemetron Corp. v. Perry, 295 F.2d 703 (7th Cir. 1961).
. B. Heller & Co. v. Perry, 201 F.2d 525, 527 (7th Cir. 1953); Butterick Company v. Will, 316 F.2d 111, 113 (7th Cir. 1963).
. 201 F.2d 525 (7th Cir. 1953).
. Id. at 527. In refining the abuse-of-discretion test, the Seventh Circuit has more recently adopted a standard of clear error. See, e. g., General Portland Cement Co. v. Perry, 204 F.2d 316, 319 (7th Cir. 1953).
. 266 F.2d 196, 199 (7th Cir.), cert. denied, 361 U.S. 832, 80 S.Ct. 82, 4 L.Ed.2d 74 (1959).
. The Seventh Circuit’s order stated as follows:
“On consideration of the plaintiffs emergency petition for writ of prohibition and mandamus, memorandum in support thereof, and supplemental appendix filed August 2, 1973 and of joint answer of respondents filed August 22, 1973, It Is ordered that said petition be, and the same is hereby, Denied.”
The majority seeks to infer from this language that the court addressed the merits of the transfer. This language would appear to provide a weak foundation for such a conclusion.
. See United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 492-94, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); Helvering v. Mitchell, 303 U.S. 391, 397, 58 S.Ct. 630, 82 L.Ed. 917 (1938).
. Even if the law-of-the-case doctrine applied, the rule is not so inflexible that a prior decision must be followed rigidly even at the risk of grave injustice. See Petition of United States Steel Corp., 479 F.2d at 494. Here, what I regard as a real possibility that the final order in this litigation will be subject to ultimate reversal on the ground that proper venue did not lie in the Northern District of Ohio would be a persuasive ground to deviate even from a clear decision by the Court of Appeals for the Seventh Circuit that the case has been transferred without error. Though it may inconvenience the parties, and vex the Court, to delay further this lengthy litigation by requiring a remand to the Northern District of Illinois, it may prove even more frustrating and time-consuming in the long run to have a costly and prolonged trial aborted on appeal because of jurisdictional error. See Hoffman v. Blaski, 363 U.S. at 334, n. 9, 80 S.Ct. 1084. But see IB J. Moore, Federal Practice ¶ 0.404[8] (2d ed. 1974).
. 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). In Continental Grain, the controversy arose from a shipping mishap in Memphis, Tennessee. The barge owners brought suit against the grain company in a Tennessee state court but that action was later removed to the federal district court in Memphis. Jurisdiction with respect to the barge lines could have been had in either Memphis or New Orleans, but the barge itself having been taken to New Orleans, Continental Grain filed its subsequent federal suit, against both the barge in rem and the owners in personam, in New Orleans. When the barge line sought to transfer the Continental Grain case to Memphis, which was the more convenient forum, the grain company resisted the move on the ground that it could not have acquired in rem jurisdiction,in Memphis, the barge being in New Orleans.
. See Ferri v. United Aircraft Corp., 357 F.Supp. 814, 817 (D.Conn.1973).
. 376 U.S. 612, 616-24, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).