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October 13, 2020updated 31 Mar 2023 8:49am

Micron, Intel fail in bid to throw out 3D Xpoint case, as judge cites ‘possible malice’

The inventor, the chipmakers, and the litigation...

By Ed Targett

A US judge has thrown out Intel and Micron’s bid to dismiss a case against them that alleges the two conspired to unlawfully gain rights-free access to a powerful, emerging new memory technology that the two are marketing as 3D XPoint.

The litigants, “Energy Conversion Devices Liquidation Trust (ECDLT), represent the creditors of late American inventor Stanford Ovshinksy’s company ECD, which filed for bankruptcy in 2012, after “50 years of crazed, prolific invention”.

They claim that Ovshinsky invented the mechanism underlying the technology and that in a series of opaque transactions in 2015, Micron worked with Intel’s help to illegally gain access to the rights to commercialise, it license-free.

ECLDT has “plausibly alleged a tortious interference with contract claim against Micron” judge Thomas J Tucker said, rejecting a blanket motion to dismiss, and adding “it is plausible, as the Trust argues, that Micron’s lawful acts were done with malice and without justification, for the purpose of evading ECD’s Royalty Right”.

He added that he will also hear claims that Intel “aided and abetted” Micron in the alleged fraud, saying despite Intel’s claims of ignorance about surrounding legal complexities, there was “sufficient circumstantial evidence to plausibly infer that, at least as early as 2000, Intel actually knew about [the] obligation to pay ECD a royalty”.

He is presiding over a complex, sprawling case first filed in July 2018 by the ECDLT against five defendants, including the two chip giants, both of which vigorously deny the claims in earlier court filings seen by Tech Monitor as “little more than the Trust’s attempt to revive and monetize a twenty-year-old executory contract”.

On October 1, 2020, Tucker granted seven motions to dismiss and denied six motions to dismiss the case. Among the six that remain active is the Trust’s bid to seek a judgement against Intel declaring “Intel has no right to intellectual property” behind 3D XPoint.

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Trial in the Michigan bankruptcy court has been set for 11 November. At stake, potentially, is a share of licensing rights to 3D XPoint (pronounced “cross point”): technology described by Intel and Micron in a joint July 2015 release as “a major breakthrough in memory process technology, and the first new memory category since the introduction of NAND flash in 1989”. They say it is up to 1,000X faster than NAND.

The technology works by utilising a unique property of glass containing chalcogens such as sulphur or tellurium: this can be manipulated by a current to change states from amorphous to crystalline; a reversible phenomena which is then used to record memory. With Moore’s Law running out of steam, innovations around data movement in and out of the chip to feed the processor have become ever-more important in underpinning improvements in compute performance.

Its advocates say 3D XPoint products — most prominently in today’s market manufactured by Micron for Intel and marketed as Intel Optane — could be transformational for enterprise users. It allows users to do more within the same server with larger instance sizes and more data managed in-memory, without performance degradation; it also offers radically faster startups.

Micron told Tech Monitor it does not comment on ongoing litigation. Intel had not responded to a request for comment as we published.

Read more: Here are the numbers that explain Intel’s decline

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