Although “without tact”, Micron’s retaliatory decision to stop hiring University of Illinois Graduates is not Illegal

By Dennis Crouch

I have a policy that I don’t hire anyone who sues me. If you sued me, I would actually take that personally. So does Micron. In a letter to University of Illinois engineering professors, Micron’s hiring coordinator wrote the following:

Because Micron remains a defendant in a patent infringement lawsuit that UIUC filed against Micron in Federal court in Illinois on December 5, 2011, effective immediately, Micron will no longer recruit UIUC students for open positions at any of Micron’s world-wide facilities.

. . . . [T]he Micron Foundation has endowed chairs at the College of Engineering and has sponsored student scholarship and professor research. However, because UIUC’s suit imposes costs and risks on Micron that are inconsistent with collaborative relationships among Micron, UIUC, and its students, Micron must regrettably indefinitely suspend its recruitment of UIUC students and likewise suspend participation in other joint activities.

In the patent litigation, UIUC has alleged that Micron infringes three of its patents. U.S. Patent Nos. 5,872,387; 6,444,533; and 6,888,204 – all invented by Drs. Joseph W. Lyding and Karl Hess.

In a motion for temporary injunctive relief, the University has alleged that the email demand involved both “coercion” and “duress.”

Coercion” under Illinois law consists of overpowering another’s free will by imposition, oppression, or undue influence. In re Marriage of Flynn, 232 Ill. App. 3d 394, 401, 597 N.E.2d 709, 713, 173 Ill. Dec. 735 (1992). A demand constitutes duress when it is, inter alia, morally wrongful. Carlile v. Snap-on Tools, 271 Ill. App. 3d 833, 840, 648 N.E.2d 317, 322, 207 Ill. Dec. 861 (1995). Micron may, of course, choose not to hire the University’s students, and may choose to withhold funding from the University. However, Micron may not convey those choices to University personnel, who have nothing to do with this matter, in an obvious effort to pressure the University into dismissing the instant action.

. . . . Here, the harm in question, the pressure Micron has placed, and is likely to place, on the University, warrants redress. Such redress should take the form of an injunction that prohibits Micron from sending similarly coercive correspondence to the University.

In response to the motion, Judge Sara Darrow has denied the University’s motion for injunctive relief has a vague restraint on future speech. Citing Alexander v. United States, 509 U.S. 544 (1993) (“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”). Further the University failed to show irreparable harm as required for injunctive relief under eBay.

Although the court denied the University’s motion, it did note that “Micron’s decision to shun the University’s students is without tact.”

Note here to Micron (and others), if you are ready to fund the University of Missouri Law School’s new innovation center, we are willing to work out a covenant not to sue.

= = = = =

The letter, with highlights from UIUC’s counsel.

58 thoughts on “Although “without tact”, Micron’s retaliatory decision to stop hiring University of Illinois Graduates is not Illegal

  1. Paul, I think the just war theories apply equally well to litigation. One must not only be in the right, but also should have a reasonable likelihood of success.

    Thus, when I sued some competitor once without warning, and demanded a TRO, all I heard from them was that I was not playing fair. (They then surrendered.)

  2. Before starting litigtion it is prudent to assess litigation risks. One of them is that the person sued might retaliate, and it is sensible to consider what they might do.

    Hiring students, giving grants and endowing professorships is discretionary. So favours cannot be counted on if the pasrty granting them is sued.

    I have just been reading a book entitled Blair’s Just War about the conflict in Iraq and written by an Anglican clergyman. In it he refers to just war theories of St Augustine and St Thomas Aquinas. Considerations that stand out are that all alternative remedies have been exhausted and that the venture is likely to succeed.

    I think Dale Carnegie would have had much to say in this situation, possibly to both sides.

  3. Your post merely repeats the mistake that I pointed out.

    Your model was tried and failed miserably.

    Your views ignore the immense success of the Bayh-Dole act.

    Sorry, IBP, you have to address that.

  4. Contrary to that being “the problem”, as you suggest, that is the very point.

    I don’t care what level of government is designated as “owning” whatever IP, or how Bayh-Dole changed that designation from the feds to others–I don’t want the government to be considered the “owner” of any IP except to the extent that there is a national security interest.

    If there is something important to do, then set up a program, fund it, and keep it secret. The government should in no way approximate a commercial enterprise, nor should it restrict benefits to a selected class. If all of “their” IP were public domain, then it would instantly belong to everybody, and everybody would be free to monetize it based on business factors.

    When they possess it, they control for many years who gets to use it. This is clearly an economic decision for the benefit of the government as a discrete organization, and not as a body representative of the entire population.

  5. If these were software patents, I’d say the university was being unreasonable and trollish. These patents are about the use of deuterium in semiconductors. Seems pretty clear and fair, unless there’s prior art.

  6. Do I have serious issues?

    Absolutely.

    They make me who I am. I not only own them, I am them.

    Sometimes I lose my patience for posters like this Kammer. I’m low on patience today. It’s tax season.

  7. Easier definition of troll: “University who hides behind sovereign immunity to justify their infringement of another’s patents but sues on its own patents.”

    Fixed it for you.

    BTW, if you want to see some egregious university trollery, search for Rutgers’ actions regarding the VXML IETF standard. Rutgers prof chairs VXML committee, which has a royalty-free requirement for any committee participant’s patents. Then Rutgers hires licensing attorney to threaten lawsuits with the prof’s patent (owned by Rutgers) against anybody implementing the IETF standard. Threatened suit. On the patents that Rutgers had previously committed to license w/o charge. Troll or not?

  8. Calistus, you’re clueless about patents in the real world. Nobody “stole” UI’s patents. They’re alleging that Micron infringes them. I’m sure Micron had no knowledge of the patents prior to including the allegedly infringing technology in their products because reputable companies try to avoid patents they know about. So it’s pretty hard to say they “stole” an invention from UI. I’m sure you’ll keep saying it though.

  9. Am I the only one amazed that after nearly fifty comments nobody cited Blonder-Tongue… and I say that as a second-generation Illini. Gee, do you think somebody on Micron’s legal staff might have been paying attention in Civ Pro and/or Patent Law and remembered the university’s sorry history of overasserting patent rights (which sure as hell didn’t end with Blonder-Tongue)?

    None of which is to say that Micron is a candidate for sainthood. I’m just faintly amused at the contextlessness.

  10. “Fine, we’ll go hurt someone you care about.”

    They’re not just hurting someone they care about, they’re hurting them directly via hurting their school as a whole, and applying pressure via the other profs.

  11. “On the other hand, I’m not at all regretful but I do think the whole affair is most regrettable.”

    That’s the same way Micron feels you ta rd. Which is why the choice of words is appropriate. They’re not regretful at all, because they had their hand forced, they had no real choice, but the whole affair is most regrettable from their point of view.

  12. “Congrats to Micron on not hiring engineering talent from one of the best engineering schools in the country.”

    They have an entire world to pick graduates with a modicum of knowledge about the field from.

    “Hopefully Boise State and Idaho State can provide the talent they need.”

    Lulz.

  13. Am I the only one that thinks the most troubling part of this matter is the fact that UIUC actually argued this to the court, seeking an injunction against Micron?:

    Micron may, of course, choose not to hire the University’s students, and may choose to withhold funding from the University. However, Micron may not convey those choices to University personnel, who have nothing to do with this matter, in an obvious effort to pressure the University into dismissing the instant action.

    Good grief. Think about what UIUC argued in its motion. Micron has the right to not hire UIUC students, but it’s not allowed to tell the students that?!?

  14. …not even American
    …not that of a true leader

    IBP – you have some serious side issues going on, my friend.

  15. Your illustration falters – and falters badly, as you quite miss the point about the entire notion of plain speaking.

    As you also miss the point that the two are not necessarily mutually exclusive (and I would add, that the deliberate decision to ‘not be strategic’ does not equal “not be effective.”

    How delicious.” I didn’t know that ‘crow’ was delicious.

  16. I will illustrate what I mean with the following response:

    I wasn’t being “strategic”, I was being “open and direct”.

    How delicious.

  17. I see not the offer as funny, but I do see the making of the offer as humorous–which is certainly not what YOU indicated that you found funny.

    This is what you said: “I think it’s pretty funny that Professor Crouch feels compelled to, once again, try to improve Mizzou by sucking up the Illini’s leavings.”

    Nothing that you wrote indicates to me in any way why that is funny.

    Do you think it is the fact that he feels compelled that is funny? Why? Because you’re on some high horse looking down at the slovenly rabble at Missouri, and laugh in the face of what you consider to be desperation?

    All I can say is get a life. I’m not even American. I could personally say the same type of thing about Illinois, from where I sit. You seem to approach this situation from the “If you want to look thin, hang around fat people” perspective.

    You should know that your conduct is not that of a true leader.

  18. At least not in the circles in which I ‘roll’.

    I don’t think Kharol rolls in your circles.

    There is a certain non-lawyer thing called plainly speaking. It has the earmark of specifically coming across without the “it is better to be strategic” taint of gamesmanship (for which, unfortunately, strategic communication does have a tendency to pick up).

    I don’t think the intention was there to malign all strategic communication, just the over-lawyered stuff.

    With that said, I think your choice of “And I use those terms in the most disparaging way possible” shows a downright poor strategic choice.

    But I am just speaking plainly.

    (and strategically – these may not be mutually exclusive characteristics)

  19. Well, let’s see Body. Illinois Engineering is ranked tied for #5 in the US by US News and World Report’s annual survey. Missouri is #87, behind Missouri Rolla and well behind Washington University in St. Louis. And as to law schools, Illinois is ranked #47 and Missouri #76. If you don’t find it funny that a Missouri law school professor would think it humorous to count coup on Illinois, then you must have attended Missou or be a Cub fan.

  20. In a manner that is seen as worthwhile.

    The manner is seen as groveling and picking up the scraps.

    Now if you think that is worthwhile, that is funny.

  21. doing work that private industry should be doing

    One (but only one) of the problems was that private industry basically said, “Scr3w that – I’m going for pure short term profits”

  22. My preferred solution to all of this is to mandate that any IP that results from a project that was funded in any measure by public resources is immediately, totally, and irrevocably, public domain. This would apply to any and all entities, public or private.

    The problem with this is that it reverses the great success in privatizing (read that as actually doing something with – rather than letting something become an empty academic exercise…) the efforts towards innovation brought about by the Bayh-Dole act.

    If you remove the (cue Lincoln) fuel of interest, that particular spark simply fizzled out.

  23. Actually, IBP I think that patents are probably better keep off the university campus. I think that this whole thing of the professor as mini-businessperson with patents and research has hurt research and turned the university into a place where professors can get rich doing work that private industry should be doing.

    I know that is crudely put, but I don’t have time to go into depth, so try to focus on the substance of what is meant to be conveyed.

  24. “openness and directness”

    “not so ‘american’”

    ROTFLMAO

    What the heck is that supposed to mean? You know, “Kharol”, there are varying levels of sophistication to all communication, and sometimes it is better to be strategic than simply direct.

    This is a fact that is well-known, and has been for millennia, OUTSIDE “America”, well before “America” was even known by more advanced civilizations to exist.

    Maybe in whatever circles you “roll” such sophistication doesn’t manifest, or isn’t practiced, or isn’t even possible–but don’t disparage the ROW by characterizing them all as base, because I assure you, they most certainly are not.

    At least not in the circles in which I “roll”.

    It’s either that, or you mistake sophistication and strategy as “openness and directness” because the story thereby described happens to comport with your existing understanding of “how things are”, or “how they should be”–for instance, this very situation.

    What do you know about what went on, and the relationship of the parties? I would venture to guess nothing, outside what you see in these communications. Maybe it is not the communication, but YOU, who is “open and direct”.

    And I use those terms in the most disparaging way possible.

  25. Krammer: “I think it’s pretty funny that Professor Crouch feels compelled to, once again, try to improve Mizzou by sucking up the Illini’s leavings.”

    What’s funny about that?

    You can frame it in whatever disparaging terms you want–all it really represents is taking advantage of an opportunity that presents itself, in a manner that is seen as worthwhile.

    What is your specific criticism, and why do you consider this specific situation funny? Is there something that I’m missing in the history?

  26. To me it looks like Micron just chose an openness and directness of communication that is .. well … not so “american”.
    As another poster already mentioned the university cannot expect the dollars to continue coming after cancelling the “good relationship mode”.
    And depending on the situation as a whole Micron might suspect the current student pool to be partial. – besides them possibly sponsoring their University as Alumni, thus Micron indirectly (through salary) making contributions to their “EX”..
    It’s also just a matter of statistics that there’s usually someone better somewhere else, and now Micron’s going to look somewhere else.
    So – what?

  27. Judges should stick to commenting on legalities, not on niceties like “tact”.

    NWPA–Micron isn’t “attacking” anybody. Withholding a potential benefit that is only a speculative benefit, and which they are under no obligation whatsoever to grant or even consider granting, cannot reasonably be considered “attacking” IMHO.

    I found the manner in which Micron discussed recruiting to have been, let’s say, “sub-optimal”. The focus should have been on creating the impression in the mind of the student body that they were being shafted by the University, thus opening up a 2-front war for the U.

    The way Micron has gone about it, I don’t know that it will have that effect. You may be right, depending on how they manage the ongoing campaign, it may actually have the opposite effect, and have opened a 2-front war for Micron itself.

    In the abstract, this kind of move is fine in any negotiation or ongoing relationship; however, it highlights for me the difficulty of universities being in the for-profit IP game, and the fact that private business get so deeply into bed with them.

    Universities have increasingly become competitors to private business, not just in the IP game, but in many areas of service and consulting. Some universities have for many years allowed their staff and facilities to be contracted out by private entities, usually when the university had a unique capacity, and where there was either a public interest or equitable exchange associated with the use of university resources.

    However, these days all universities that I know of are looking for every possible source of revenue, and have looked to monetize specific capabilities that they have evolved. They are now increasingly competing with private businesses for many types of work, even work that is publicly-funded. They are actively responding to RFP’s in their own name, for all manner of technical services and consulting.

    Private businesses are up in arms about this–what was previously viewed as an essentially collaborative relationship is now viewed with more caution, and in a newly competitive light. Many private businesses consider certain universities to have, and to be exercising, unfair competitive advantages, as their bids often seem to come in impossibly low.

    My preferred solution to all of this is to mandate that any IP that results from a project that was funded in any measure by public resources is immediately, totally, and irrevocably, public domain. This would apply to any and all entities, public or private.

    Would tax breaks qualify as the “use of public resources” such that non-profits would be using public resources even though no part of their revenues comes from a public source? That’s a tougher question, but there would be time to answer that, too.

    As an initial measure, I would implement the above solution.

    I await the body punches. Ooohhh, I can feel them coming now…

  28. How about “tactless”?

    And does the judge find it tactless of the university to sue such a big contributor? Probably not. It’s OK to bite the hand that feeds you when that hand is attached to Evil Big Business (don’t stop eating though). What a pathetic bunch of whiners we have become.

  29. There are always consequences, NWPA.

    That does not change the over-emphasis on “going after” innocent students.

    While in fact a lapse may be attributed to Micron, a lapse cannot “not” (likewise) be attributed to U of I.

    And (in repeating Leopold’s point), for every U of I student hurt by Micron (which knowledge of said hurt is conjecture at best), there will be at least one other student of one other university that now has a benefit and that person’s induced goodwill may (or may not) completely balance out the ill will generated by this action.

    In other words, much ado about very, very little.

    (ohh, look a piece of blue sky on the ground over there)

  30. I don’t know about that anon. Corporations usually have better sense than to hurt innocents with collateral damage. Plus, when you go after innocents often you find that there may be consequences.

    Corporations that I have worked for would never have come after the students. That is really not only coming after innocents but acting against your own interest. How many of those students are going to be decision makers in 10 years? Lots. How many U. of I. former students are now in a position to hurt Micron–lots and lots.

    Serious lapse in good judgement on Micron’s part.

  31. I think it’s pretty funny that Professor Crouch feels compelled to, once again, try to improve Mizzou by sucking up the Illini’s leavings. Here’s my two cents on how Illinois should have responded: “We regret that Micron feels compelled to deny themselves access to the superb talent pool at the University of Illinois. If Micron management routinely makes decisions that compel Micron’s shareholders to forgo the best opportunities, such as by hiring inferior talent, we look forward to Micron’s impending bankruptcy.”

  32. It’s only as odd as the continued emphasis on the students of the university that sued Micron.

    Leopold’s point here is relatively simple: there are natural consequences when you disrupt a relationship.

    That’s just the real world.

    The type of “over-focusing” here on the poor university students is like expecting the real world to give a d_@mm and go out of its way to avoid collateral damage.

    Very pie-in-the-(blue)-sky wishful thinking.

  33. But now, with this publicity, is it not a self-inflicted wound to Micron’s public image? A company that reacts vindictively, spiting itself: is it the sort of company that you would think of committing to?

    I agree. It seems petty, vindictive, and spiteful. Assert your rights against us? Fine, we’ll go hurt someone you care about.

    This sort of thing is beneath them. It’s definitely sub-Micron behavior.

  34. LB: We basically agree with one another. But, as I say below Micron should go after the decision makers and not the students.

    Odd logic there about some other innocent student getting an opportunity. It is true that it is an ill wind that blows no good, but that is not a justification for hurting innocents.

  35. Is University of Missouri’s research so bad that the school would trade a paid-up license for a building/furniture/equipment? Wowsa.

  36. If you find their actions morally repugnant, then you should absolutely refuse to represent them.

    But Micron isn’t “attacking” anybody. They’re just pointing out what everyone in the real business world should already know – you can’t sue someone and expect to continue a nice cozy business relationship. If one of my vendors sues me, I’m very likely to discontinue sending it my hard-earned dollars. I’m not going to spend a lot of time worrying about the “innocent” employees that are harmed by that. Other vendors that would be happy to have my business have innocent employees, too.

    The situation is no different here. Sure, UIUC is a great school. But there are other great schools that would be happy to take Micron’s money and recruiting attention. And maybe some innocent student at those schools will now get an opportunity that he/she wouldn’t have otherwise had.

  37. Probably what Micron doesn’t realize is that by going after all U. of I. students they have created an enemy larger than themselves.

    Micron should have simply said that they are going to suspend donations to the university in light of the lawsuit. That would have hurt Illinois enough and gotten the message across.

  38. As I said, catch-all “inappropriate” is often used when another word like “wrong” is the appropriate, apt, fitting and correct one to use. Thanks anon, you illustrate my “appropriate” point very nicely.

  39. It is inappropriate to use ‘inappropriate’ if the judge did mean without tact.

    Not having been present at the proceedings, I choose not to second guess the judge on such a value-statement.

    Such second guessing seems, well, inappropriate.

  40. The judge characterizes Micron’s acts as being “without tact”. Interesting. Whether or not Micron was tactless strikes me as hardly the most important detail here. Was the judge lost for a word more apt? How about “inappropriate”. That usually serves.

  41. In her letter, does Michelle really mean and intend “regrettably”? For me, the context requires “regretfully”.

    On the other hand, I’m not at all regretful but I do think the whole affair is most regrettable. I assume Micron behaves rationally. On that assumption, one would have thought that the University’s legal advisers could have resolved this more amicably, before it came to this.

    The letter must have seemed like a good idea at the time. But now, with this publicity, is it not a self-inflicted wound to Micron’s public image? A company that reacts vindictively, spiting itself: is it the sort of company that you would think of committing to?

    Concluding, I want to say Bravo that all this stuff comes out in the open. Where else in the world could that happen?

  42. Yes, LB, but what if they do want me to represent them, should I refuse?

    The problem with what Micron is doing is that they are attacking the innocent. They should go after the administrators and not the students.

  43. I don’t know, it just seems rather petty. They say they won’t actively recruit, but I bet if they get a 5 star resume from someone who just whoops! happens to be from that school, they’d probably consider it.

  44. Congrats to Micron on not hiring engineering talent from one of the best engineering schools in the country. Hopefully Boise State and Idaho State can provide the talent they need.

  45. Micron is, as we say on the internets, bxtthurt over getting pwned by U of I. Lulz.

  46. “te here to Micron (and others), if you are ready to fund the University of Missouri Law School’s new innovation center, we are willing to work out a covenant not to sue. ”

    start producing graduates steeped in something other than writing pieces of paper, perhaps, say, the useful arts, and I’m sure they’d be happy to.

  47. So, now Micron won’t hire me? I wonder if that means that I should sue Micron or choose not to represent them.

  48. patent troll universities

    easy definition of ‘troll’: anyone or anything you don’t like.

  49. Godfather, Why don’t you just say what you mean.

    Companies who steal patents from an inventor should actively and publicly coerce that inventor in whatever way they can so that the inventor doesn’t take appropriate legal action to get back what was stolen by the said company.

    Maybe you could offer a little “protection” while you’re at it.

  50. They said RECRUIT, not hire. So presumably they’ll stop recruiting on campus, but not stop hiring all UIUC alumni. Micron is under no obligation to recruit anywhere at all, so of course they can choose to not recruit UIUC for good reason, bad reason or no reason at all.

  51. Congrats to Micron. More US companies should take this position when attacked by US patent troll universities.

Comments are closed.