In addition to Epic's motion to dismiss the action, Epic described the action as "a cynical effort ... to unlawfully enrich itself at the expense of Epic Games." Additionally, Epic's Mark Rein, claims that Silicon Knights, "used Epic's intellectual property to develop what [they expect] will be a commercially lucrative video game that it is about to publicly release, [and] having exploited Epic's intellectual property to its advantage, Silicon Knights now seeks to renege on its payment obligations under the License Agreement."
Epic claims that their agreement with Silicon Knights was not to deliver a working Unreal Engine 3 within six months of the Xbox 360 and PlayStation 3's final-release development kits being distributed, but instead simply to demonstrate that it would run on the Xbox 360 by March 2006. Epic also alleges that Silicon Knights had sufficient access to code and support for nine months prior to signing their contracts.
Justifying the request to have all games involved permanently destroyed, Epic states that any work developed subsequent to the decision not to use the Unreal Engine 3 now forms an unauthorised derivative work and therefore constitutes copyright infringement. Specifically, Epic is now seeking to have Too Human terminated, citing it in the suit.
In a response given to GameDaily, Silicon Knights is holding their ground, stating, "We don't think Epic's counterclaim has any merit. We believe strongly that our claims in our complaint will prevail and the damages Silicon Knights has suffered in connection with its original complaint are vastly more, millions of dollars more than what Epic claims its damages are in its counterclaim. They've set forth $650,000 and our claims will dwarf that substantially."
Christopher Holland, Silicon Knights' attorney, also added in response to the demand to have Too Human destroyed, "The lawsuit itself will not have any effect on Too Human. The lawsuit is based on substantial delay and damage that Epic caused us, but through our own sweat and toil, we have created a new and better game engine, in our view, that we're utilizing now. We basically had to do ourselves what we paid Epic to do. As a result, we are back on track and this game is going to come out in a timely fashion".
While he was unwilling to say whether the game would make it to market this year, Silicon Knights' President Denis Dyack has previously said it's unlikely, as they have other plans for it.
As the wheels of legal justice roll out, PALGN will be there, bringing you updates.
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